Recent Decisions of the New Jersey Appellate Courts
from 2018-07-02 to 2018-07-16

Supreme Court Decisions


Docket No.: a_67_16
Decided: 2018-07-11
Caption: State in the Interest of A.R.
Summary:
R.

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Appellate Division PUBLISHED Decisions


Appellate Division UNPUBLISHED Decisions


Docket No.: a0249-16
Decided: 2018-07-13
Caption: THE BANK OF NEW YORK MELLON v. JOHN KINGSBURY
Status: unpublished
Summary:
PER CURIAM In this mortgage foreclosure action, defendant Glenn Kingsbury1 appeals from an August 5, 2016 final judgment entered by the Chancery Division, following the court's grant of summary judgment in favor of plaintiff, The Bank of New York Mellon, on April 29, 2016.2 On appeal, defendant challenges the trial court's 1 On February 5, 2012, the mortgagor, John Kingsbury (decedent), passed away. On June 22, 2012, the Atlantic County Surrogate issued Letters Testamentary to defendant, decedent's son, confirming his appointment and qualification as executor of his father's estate. For ease of reference, we refer to John Kingsbury as decedent and his son, Glenn Kingsbury, as defendant. 2 The notice of appeal refers only to the August 5, 2016 final judgment. However, defendant's Appellate Division Civil Case Information Statement identifies the underlying summary judgment order as the order he seeks to appeal. Both parties have fully briefed the court's decision granting summary judgment. In the interest of justice, we deem the appeal properly taken from the summary judgment order. 2 A-0249-16T2 rejection of his claim that decedent was the victim of predatory lending, in violation of the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -210. For the following reasons, we reverse and remand. I On March 20, 2007, decedent, then seventy-two years old, executed a Real Estate Contract (Contract) for the purchase of a beachfront home in Beach Haven. The Contract provided for a sale price of $1,775,000, a deposit of $1000, an additional deposit of $126,500 within ten days of the signing of the Contract, and a contingency of buyer obtaining a mortgage of $1,597,500. The Contract did not reference a second mortgage. The record indicates the closing for the purchase took place on June 8, 2007. On that date, decedent executed an Interest Only Fixed Rate Note (Note) in favor of Countrywide Home Loans, Inc. (Countrywide) for $1,420,000, along with a corresponding mortgage. The Note provided for a thirty-year term, with monthly payments of $9319 for the first 120 months and $11,767 thereafter. Decedent also executed a Uniform Residential Loan Application (Loan Application) on the same day. The Loan Application states decedent was the self-employed owner of Cheer Tech for ten years and two months and had a monthly income of $30,000, composed of a base income of $25,000 and a pension of $5000. It further listed a 3 A-0249-16T2 contract sales price of $1,775,000, subordinate financing of $177,500, earnest money of $177,500, and a loan amount of $1,420,000. Also on June 8, 2007, decedent executed a HUD-1 Uniform Settlement Statement, which listed earnest money of $177,500, a principal loan amount of $1,420,000, and a second mortgage of $177,050. Plaintiff's file regarding decedent's loan contained two additional documents. First was an April 30, 2007 letter decedent allegedly wrote "to explain inquiries on my credit report"; apparently, "[d]ue to the size of the mortgage," decedent had contacted other lenders. Decedent also allegedly wrote, "I am retired," but "bought into the business Cheer Tech in 1997 . . . ." Second was a May 14, 2007 letter from an employee of H&R Block stating, decedent "has filed as owner of Cheer Tech . . . since 1997. I have been preparing his taxes for the last twelve years." On September 1, 2010, decedent stopped making the monthly mortgage payments, constituting a default that he never cured. On June 1, 2011, Mortgage Electronic Registration Systems, Inc., as nominee for Countrywide, assigned the mortgage to plaintiff. As noted, decedent passed away on February 5, 2012. A title search 4 A-0249-16T2 revealed a second mortgage for $177,5003 in favor of Countrywide that was discharged on September 26, 2012. On August 22, 2014, plaintiff sent a notice of intent to foreclose to decedent's estate. Plaintiff filed an amended foreclosure complaint on June 30, 2015 against decedent's estate and heirs. Defendant answered on September 9, 2015, alleging the CFA barred plaintiff's claims due to Countrywide's fraudulent actions, including material misrepresentation of decedent's income on the loan application. On February 18, 2016, plaintiff filed a motion for summary judgment. On April 27, 2016, defendant filed opposition to plaintiff's motion, arguing the court should hold plaintiff responsible for Countrywide's fraudulent actions in issuing the loan. Defendant also asserted plaintiff frustrated his right to conduct meaningful discovery. On April 29, 2016, the trial court heard oral argument on plaintiff's motion for summary judgment. The court initially noted that plaintiff is not a holder in due course because the assignment of the note and mortgage to plaintiff occurred after the loan went into default; as a result, plaintiff is "subject to 3 We assume this second mortgage represents the same second mortgage reflected on the settlement sheet, which lists a second mortgage of $177,050. This discrepancy constitutes another issue for the parties to address when they complete discovery. 5 A-0249-16T2 the defenses that are relevant." Plaintiff's counsel did not dispute this point. Defendant requested further discovery and argued Countrywide defrauded decedent. Plaintiff argued it met the standard for summary judgment because decedent signed all of the loan documents and defendant failed to establish fraud or other wrongful conduct by Countrywide. The motion court found plaintiff established a prima facie right to foreclose, concluding defendant failed to raise any genuine issues of material fact. The court specifically found defendant's fraud claim "untenable." The court also noted the statute of limitations barred defendant from asserting a fraud claim. Furthermore, the court found decedent's failure to raise a fraud claim at the time of the transaction, and the loan payments he made for the next three years, ratified the note and mortgage. The court further found the opposing certification of defendant "unpersuasive," dismissing it as "clearly hearsay and speculation." The court then granted plaintiff's motion, concluding defendant had "not met [his] burden for opposing . . . summary judgment . . . ." On appeal, defendant argues the motion court erred in failing to allow discovery, and in denying "the right to seek equitable remedies." We agree. 6 A-0249-16T2 II We review a grant of summary judgment de novo, applying the same standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010). Summary judgment must be granted if "the pleadings, depositions, 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). Without making credibility determinations, the court considers the evidence "in the light most favorable to the non-moving party" and determines whether it would be "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The CFA authorizes a suit by "[a]ny person who suffers any ascertainable loss of moneys or property, real or personal, as a result of the use or employment by another person of any method, act, or practice declared unlawful under this act . . . ." N.J.S.A. 56:8-19. Thus, "[t]o prevail on a CFA claim, a plaintiff must establish three elements: '1) unlawful conduct by defendant; 2) an ascertainable loss by plaintiff; and 3) a causal relationship between the unlawful conduct and the ascertainable loss.'" Zaman 7 A-0249-16T2 v. Felton, 219 N.J. 199, 222 (2014) (quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 557 (2009)). The CFA defines an "unlawful practice" as "any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate . . . ." N.J.S.A. 56:8-2. An "unconscionable commercial practice" suggests a standard of conduct lacking in "good faith, honesty in fact and observance of fair dealing." Cox v. Sears Roebuck & Co., 138 N.J. 2, 18 (1994) (quoting Kugler v. Romain, 58 N.J. 522, 544 (1971)). Predatory lending may constitute unconscionable commercial practice under the CFA. See Assocs. Home Equity Servs., Inc. v. Troup, 343 N.J. Super. 254, 278-79 (App. Div. 2001). Predatory lending is: a mismatch between the needs and capacity of the borrower . . . . In essence, the loan does not fit the borrower, either because the borrower's underlying needs for the loan are not being met or the terms of the loan are so disadvantageous to that particular borrower that there is little likelihood that the borrower has the capability to repay the loan. 8 A-0249-16T2 [Nowosleska v. Steele, 400 N.J. Super. 297, 305 (App. Div. 2008) (alteration in original) (quoting Troup, 343 N.J. Super. at 267).] Here, whether decedent's loan application contained material false information, and if so, Countrywide's complicity in creating and approving such a fraudulent application, constitute material facts in dispute. Defendant contends: decedent never owned or worked for Cheer Tech, rather defendant owns the business; decedent's monthly income at the time of loan origination was approximately $1500, not $30,000; the April 30, 2007 letter regarding decedent's credit report contains a forged signature;4 and H&R Block never filed Cheer Tech's tax returns. Defendant submitted a certification attesting to those facts. Viewed in the light most favorable to defendant, those facts clearly establish a material dispute as to whether Countrywide engaged in unlawful conduct proscribed by the CFA. See Brill, 142 N.J. at 540. We discern no basis for the motion court's rejection of defendant's certification as "clearly hearsay and speculation." Furthermore, defendant contends Countrywide misrepresented decedent as providing earnest money, when the money actually came from a second mortgage from Countrywide; inexplicably, this 4 The signature on the April 30, 2007 letter does appear substantially different from the signature on the Note, the mortgage, the Loan Application, and the Settlement Statement. 9 A-0249-16T2 mortgage was discharged shortly after decedent's death. We also question whether the loan application decedent allegedly signed on the date of settlement was the same application he signed when he applied for the loan. The application signed on the date of closing listed as an asset his "DOWNPAYMENT" of $177,500, but did not list any liabilities, except for an unpaid credit card balance of $29. Since Countrywide provided almost the entire amount of the down payment via a second mortgage, it obviously knew the application submitted to decedent at closing contained material false information. Allowing defendant to complete discovery should yield a full explanation of the facts and circumstances surrounding the second mortgage, its discharge, and the degree of Countrywide's involvement in the creation or submission of falsified documents. Accordingly, we find the trial court erred when it determined the record showed no material facts in dispute regarding Countrywide's conduct and whether it engaged in an unlawful practice in violation of the CFA. We therefore reverse the grant of summary judgment and remand to allow the parties to complete discovery. Because the court entered its final judgment based upon the order granting summary judgment, we also vacate the final judgment. 10 A-0249-16T2 III The trial court also found the statute of limitations bars defendant's CFA defense. However, we find the doctrine of equitable recoupment saves the defense. We agree the statute of limitations bars defendant from pursuing an action under the CFA. The statute of limitations for the CFA is six years. N.J.S.A. 2A:14-1; Trinity Church v. Lawson- Bell, 394 N.J. Super. 159, 170 (App. Div. 2007) (citing Mirra v. Holland Am. Line, 331 N.J. Super. 86, 90-91 (App. Div. 2000)). Decedent signed the note and mortgage on June 8, 2007. Assuming decedent knew of the fraud at that time, the statute of limitations began to run. Defendant asserted a claim of fraud in his answer to plaintiff's complaint on September 9, 2015, more than eight years after the loan origination. However, defendant asserted the claim as a defense, not as a counterclaim. The doctrine of equitable recoupment permits a defendant to assert an otherwise stale claim and avoid the statute of limitations, where the defendant uses the claim as a shield instead of a sword. Nester v. O'Donnell, 301 N.J. Super. 198, 208 (App. Div. 1997) (citing Midlantic Nat'l Bank v. Georgian Ltd., 233 N.J. Super. 621, 625 (Law Div. 1989)). A defendant may raise an equitable recoupment defense in order to reduce the plaintiff's recovery in a foreclosure action 11 A-0249-16T2 when the defendant claims fraud arising from the loan origination. Troup, 343 N.J. Super. at 271 (citing Beneficial Fin. Co. of Atl. City v. Swaggerty, 86 N.J. 602, 611 (1981)). "[J]udges invented the doctrine of equitable recoupment in order to avoid an unusually harsh or egregious result from a strict application of a statute of limitations." Ibid. (quoting Georgian Ltd., 233 N.J. Super. at 625-26). Therefore, "the defense of recoupment 'is never barred by the statute of limitations so long as the main action itself is timely.'" Ibid. (quoting Nester, 301 N.J. Super. at 208). Here, plaintiff argues the statute of limitations bars defendant's CFA defense. However, a strict application of the statute of limitations on the CFA defense would result in a gross injustice if Countrywide engaged in unlawful practices to defraud decedent during the loan process. We note the equitable recoupment defense does not invalidate the debt; it merely reduces the amount of plaintiff's recovery. Id. at 272. While plaintiff may still be entitled to foreclose, equitable recoupment may limit the recovery to the amount of the foreclosure sale and preclude any deficiency judgment against defendant. We remand to the trial court to allow the parties to complete discovery and determine an equitable result. Reversed, vacated, and remanded. We do not retain jurisdiction. 12 A-0249-16T2

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Docket No.: a0300-17
Decided: 2018-07-13
Caption: INTER-NATIONCAPITAL MANAGEMENT CORP. v. METRO COUNTRY CLUB, S.A.
Status: unpublished
Summary:
PER CURIAM Defendants Metro Country Club, Media Global Finance and Luis Asilis appeal on leave granted from the Chancery Division's denial of their motion to dismiss the complaint filed by plaintiffs Inter-Nation Capital Management Corp. (Panama), Statiol Inc., Inter-Nation Capital Management Group and John Kellenyi for lack of personal jurisdiction. We affirm, substantially for the reasons expressed by Judge Kessler in his cogent and comprehensive opinion from the bench on July 21, 2017. Metro Country Club is a residential golf club community in the Dominican Republic, organized under the laws of that country. Asilis, a citizen of the Dominican Republic, is president of Metro and its subsidiary, Media Global Finance, a company devoted to developing and operating residential communities and resorts in the Dominican Republic. Media Global is organized under the laws of the British Virgin Islands, 2 A-0300-17T4 although its principal place of business is in the Dominican Republic. In February 2012, Asilis called Alberto Fernandez in his office in Maplewood looking for financing. The two met when Fernandez, a New Jersey resident, purchased a vacation home in Metro in 2000 and told Asilis he did financial advising and consulting internationally through his New Jersey companies. When Fernandez said he was interested, Asilis told him Carlos Cortina, Metro's chief financial officer, would call him to discuss particulars. Cortina called Fernandez at his Maplewood office, explaining that Metro had a multi-million dollar loan, guaranteed by Media Global, coming due in a few weeks' time. Metro and Media Global needed financing to pay off the loan or have the loan and collateral assigned to a new lender. Fernandez agreed to solicit investors through his investment consulting business, Inter-Nation Capital Management Group, a New Jersey corporation, for a fee payable on the closing of the transaction, conditioned on the loan being enforceable in the United States. Fernandez solicited Statiol Inc., S.A., a Panamanian company having a principal place of business in Chile and John Kellenyi, another Maplewood resident, as investors, along with 3 A-0300-17T4 Inter-Nation Capital Management Corp., a Panamanian corporation with its principal place of business in Maplewood, which is a wholly-owned subsidiary of Inter-Nation Capital Management Group, formed to hold Fernandez's personal investments. Cortina traveled to New Jersey to meet with Fernandez in the Inter- Nation offices in Maplewood. Cortina advised Fernandez that Metro was working on long-term financing from IVO Capital Partners, an international investment firm. Cortina explained Metro and Media Global needed approximately $4 million in bridge financing only until the IVO financing was in place. Fernandez, acting on behalf of Statiol, Kellenyi and Inter-Nation Capital Management Corp., began negotiating the terms of a loan purchase and refinancing with Cortina. In March, Asilis and Fernandez negotiated the terms of the bridge loan from Statiol, Kellenyi and Inter-Nation Capital Management Corp., acting as an informal lending group, to Metro, guaranteed by Media Global and secured by various collateral through a series of phone calls and email messages to Fernandez in New Jersey. Asilis assured Fernandez in the course of those negotiations that Metro had a firm commitment for long-term financing from IVO to close in 2013 and was only seeking bridge financing from the lending group. Based on Asilis' representation, the three-member lending group agreed to loan 4 A-0300-17T4 Metro $6 million, $4 million to purchase Metro's outstanding loan and the remainder to refinance a commercial paper obligation and fund working capital. The lending group took an assignment of the loan and collateral documents and entered into a "Frame Agreement" with Metro amending the prior loan documents and increasing the principal amount of the loan to $6 million (later increased to $6.5 million), subject to Metro's delivery of three promissory notes to the lending group. The Frame Agreement is expressly governed by New Jersey law and was executed by Fernandez and Kellenyi in New Jersey. Metro eventually defaulted on the payments, although not before making certain payments required under the loan documents by wire transfer to various banks in the United States, including to Inter-Nation Capital Management Corp. to Valley National Bank in Maplewood. Fernandez contends Cortina admitted after the default that Metro had not had a firm commitment for long-term financing from IVO as Asilis had assured Fernandez before the lending group committed to making the loan and could not pay the lending group what it was owed without such financing. Notwithstanding that the lending group entered into a standstill agreement with Metro and Media Global agreeing to forbear payment on the outstanding aggregate amount then due and 5 A-0300-17T4 owing of $7,896,111.14 for eighteen months in order to permit Metro and Media Global to obtain other financing, Metro ultimately defaulted on that agreement as well, resulting in the complaint plaintiffs filed in the Chancery Division for specific performance of Metro's obligations to produce books and records, as well as for breach of contract against both Metro and Media Global and fraud against both those defendants and Asilis. Defendants moved to dismiss the complaint, arguing they have no contacts with New Jersey. Specifically, defendants contended the properties, businesses, collateral and the business interests at issue in the litigation are in the Dominican Republic. They argued they made no "purposeful foray" into New Jersey, as that term was defined in Bayway Refining Co. v. State Utilities, Inc., 333 N.J. Super. 420, 431 (App. Div. 2000), and instead that the dispute arose following plaintiffs' contacts and purposeful investment in the Dominican Republic. Judge Kessler rejected those arguments. Applying the test of Waste Management v. Admiral Insurance Co., 138 N.J. 106, 122 (1994), the judge had no hesitation in finding defendants had sufficient minimum contacts to establish specific jurisdiction in New Jersey. The judge found Asilis initiated the loan agreement between Metro and Media Global and defendants when he telephoned Fernandez in New Jersey to seek financing, rejecting 6 A-0300-17T4 defendants' claim that Fernandez initiated the contact by marketing his ability to obtain investors and financing to Metro in 2000. The judge also rejected defendants' argument that their contacts with New Jersey were only incidental to Fernandez's unilateral decision to be in New Jersey, instead of his domicile in the Dominican Republic, when he was negotiating the loan in February 2012. The judge was unpersuaded by the fact that Fernandez owned a vacation home and may have maintained a second domicile in the Dominican Republic. Defendants did not dispute that Fernandez was a New Jersey resident when they solicited him in New Jersey. More important, they followed-up that contact by sending Cortina to New Jersey to meet with Fernandez to obtain investors, one of whom, Kellenyi, they knew resided in New Jersey. Defendants thereafter continued the negotiations through telephone and email directed to Fernandez in New Jersey, leading to an agreement governed by New Jersey law. Considering the extent and variety of their contacts, the judge was satisfied defendants purposefully availed themselves of the State's benefits and "should 'reasonably anticipate being haled into court [in the forum state].'" Bayway Ref. Co., 333 N.J. Super. at 429 (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980)). Judge Kessler found 7 A-0300-17T4 defendants, as the Florida boat seller in Lebel v. Everglades Marina, Inc., 115 N.J. 317, 320-22 (1989), obtained a significant benefit, here bridge financing of over $6 million, by soliciting a New Jersey resident, in New Jersey, to obtain the money. Judge Kessler reasoned that in reaching into New Jersey for the loan, defendants "impliedly understood that they could be haled into a New Jersey court" in the event they failed to repay it. The judge found Asilis' allegedly false statement about the IVO loan commitment made to induce plaintiffs to make the loan likewise satisfied the test for minimum contacts. See id. at 326 ("Where a defendant knowingly sends into a state a false statement, intending that it should then be relied upon to the injury of a resident of that state, he has, for jurisdictional purposes, acted within that state.") (quoting Vishay Intertechnology, Inc. v. Delta Int'l Corp., 696 F.2d 1062, 1066 (4th Cir. 1982)). Judge Kessler further found suit in New Jersey would "not offend 'traditional notions of fair play and substantial justice.'" Waste Mgmt., 138 N.J. at 120 (quoting World-Wide Volkswagen, 444 U.S. at 292). He found New Jersey certainly had an interest in carrying out its law and protecting those residents who lend funds in good faith, which outweighed any inconvenience to defendants in litigating in New Jersey, 8 A-0300-17T4 particularly where defendants had already sent a representative to the State in connection with the loan. Defendants appeal, reprising the arguments they made to the trial court and adding the court erred in exercising personal jurisdiction over Media Global as the court failed to make any findings of fact specific to that entity to establish its minimum contacts with New Jersey. Our review of the record convinces us that none of those arguments is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). There is no question but that "[t]he requirements of minimum contacts analysis 'must be met as to each defendant over whom a state court exercises jurisdiction.'" Waste Mgmt., 138 N.J. at 127 (quoting Rush v. Savchuk, 444 U.S. 320, 332 (1980)). Here, however, the record makes very apparent both Asilis and Cortina were acting on behalf of both Metro and Media Global its wholly owned subsidiary and guarantor of the loan to be refinanced. The judge highlighted those facts in his opinion. Accordingly, we find any failure by the judge to specifically mention Media Global as he was summing up his findings to be of no moment. 9 A-0300-17T4 We affirm, substantially for the reasons expressed in Judge Kessler's clear and comprehensive opinion from the bench on July 21, 2017. Affirmed. 10 A-0300-17T4

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Docket No.: a0746-13
Decided: 2018-07-13
Caption: VALERIE GIARUSSO v. WILLIAM G. GIARUSSO, SR
Status: unpublished
Summary:
PER CURIAM Plaintiff Valerie Giarusso appeals from three post-judgment orders: (1) a June 27, 2013 order; (2) a September 16, 2013 order amending the June 27, 2013 order; and (3) a September 18, 2013 order denying reconsideration of the June 27, 2013 order. We affirm in part and vacate and remand in part. I. We glean the following facts from the record. Plaintiff and defendant William G. Giarusso, Sr., were married on October 30, 1993, and have two children, born in 1996 and 1999. During the marriage, defendant was the sole wage earner and plaintiff was a homemaker. Plaintiff filed for divorce in February 2007, later withdrew her complaint, and subsequently filed a second divorce action on January 15, 2008. Defendant filed an answer and counterclaim on March 19, 2008. A contentious divorce proceeding ensued with a judgment of divorce being entered on June 24, 2010, after a twenty-seven-day trial. The parties possessed joint marital property, including substantial investments; life insurance; their former marital residence (FMR) in Upper Saddle River, New Jersey; a vacant parcel in Margaretville, New York; and seven properties in Florida (the Florida properties). Homes were under construction on five of the Florida properties. Defendant completed three one-family homes in 2011, spending $153,720.52 in 2010 and $480,257.76 in 2011 to complete the construction. Defendant maintains plaintiff was aware of the expenditures, and he made the capital improvements with plaintiff’s knowledge and tacit approval. 2 A-0746-13T4 On June 24, 2010, the trial court issued a lengthy opinion and Final Judgment of Divorce (FJOD). The opinion and FJOD provide, in relevant part: (1) the FMR and the Margaretville property shall be sold within sixty days unless the parties mutually agreed otherwise; (2) the Florida properties shall be listed for sale unless the parties agreed to first complete construction or secure all necessary approvals and then list them for sale; (3) the Northwestern Mutual Life Insurance Policy (Northwestern Policy) shall be surrendered and the proceeds used to pay marital debt with any excess to be equally divided; (4) the parties shall equally share the costs to maintain the mortgages and property taxes on the FMR, the Margaretville property, and Florida properties; (5) defendant shall advance the mortgages and real estate taxes for these properties and then deduct these costs from the supplemental alimony paid to plaintiff; (6) defendant shall pay alimony in the amount of thirty percent of defendant's base salary of $500,000 or $150,000 annually and twenty percent of his commission checks, yielding a total alimony obligation of $547,500 per year; (7) defendant shall pay child support in the amount of $75,000 per year per child plus ten percent of defendant's commission checks until he paid a total of $150,000; (8) each party shall be responsible for their own car payments; (9) the personal property shall be distributed in accordance with 3 A-0746-13T4 the agreement reached by the parties; (10) each party shall be responsible for their own attorney's fees; and (11) plaintiff shall be responsible for forty percent of the $21,909.54 owed to Leslie Solomon, CPA, and $82,146.80 owed to Barry Kaufman, Esq., the court-appointed discovery master. The parties did not appeal the FJOD. Thereafter, the parties engaged in several rounds of post- judgment motion practice. In November 2011, plaintiff moved to enforce litigant's rights, seeking fourteen forms of relief. Defendant cross-moved to compel plaintiff to reimburse him for certain costs and other relief. On February 14, 2012, the trial court issued two orders and a written decision, which provided, in pertinent part: (1) defendant was permitted to take certain credits for the properties; (2) the Florida properties were to be sold within sixty days after June 24, 2012, unless the parties agreed otherwise; (3) plaintiff’s share of maintenance of the properties was limited to a maximum of $137,500, with any excess amount carried forward; (4) defendant shall continue to be responsible for the lease payments on plaintiff's vehicle; and (5) the Northwestern Policy was to be surrendered, with the parties sharing the cash surrender value consistent with the FJOD. 4 A-0746-13T4 Contrary to the court's ruling, the Florida properties were not sold. Neither party provided the trial court with the terms of any agreement reached regarding those properties. Plaintiff filed a second motion to enforce litigant's rights in March 2012. Defendant filed a cross-motion for reconsideration of the February 14, 2012 order. Following oral argument, the trial court entered two May 25, 2012 orders, which denied certain relief and set the matter for a plenary hearing to determine whether expenditures and capital improvements were completed on the Florida properties with plaintiff’s knowledge and approval. The court also ruled: (1) defendant shall receive a credit of $35,000 of the $70,000 he advanced for plaintiff's legal fees, since the monies advanced were derived from joint marital assets; (2) defendant shall receive a credit for all car lease payments from the inception of the lease to its termination date; and (3) plaintiff shall provide defendant with reasonable proof as to monies received from the surrender of the Northwestern Policy. The trial judge noted the properties in Florida were under construction and, as a result, the judge suggested it may be prudent for the parties to consider investing in completing the homes under construction prior to listing for any sale. The court also stated the parties would share equally in any gains or losses in the event of a sale of the Florida properties. 5 A-0746-13T4 The parties entered into an August 17, 2012 consent order before the plenary hearing commenced. The consent order provided for, in relevant part: the parties sharing joint legal custody with defendant designated as parent of primary residence (PPR); permitting plaintiff to apply to revise the parenting schedule and to be designated PPR if she returns to New Jersey after relocating to California; a reduction in child support; restraining plaintiff from entering or being on the premises of the FMR after she relocates to California; allowing plaintiff to remove specified items from the FMR; and the release of specified funds to each party. The consent order also listed the issues to be decided in the plenary hearing: (1) whether defendant is entitled to a reduction in alimony and the amount of defendant's alimony arrears; (2) the amount of defendant's child support arrears through the date of the plenary hearing; (3) the amount of the credits to defendant for payments made on the FMR, the Florida properties, the Margaretville property, plaintiff's leased Land Rover and automobile insurance, the surrender value of the Northwestern Policy, reimbursement for the children's custodial accounts, the amount of the credit for counsel fees previously paid on behalf of the plaintiff for which defendant is not responsible, and the manner in which each party is to be paid; (4) all issues relating 6 A-0746-13T4 to the jewelry; (5) whether the parties agreed to invest in the Florida property after the FJOD was entered; (6) the amount of child support owed by either party as of August 15, 2012; and (8) counsel fees. The nine-day plenary hearing took place over a nine-month period. Following written submissions and oral argument, the court issued a sixteen-page written decision and several orders on June 27, 2013. In a subsequent September 16, 2013 order, the court amended the June 27, 2013 orders and clarified its earlier decision. In his analysis of the issues regarding the real estate, the judge emphasized plaintiff introduced no testimony with respect to the fair market value of the Florida properties. The trial judge noted "[d]efendant testified . . . that the three residences in Florida could not be sold without a certificate of occupancy ('C/O')." This testimony was uncontroverted by plaintiff. The judge found "[d]efendant decided to complete the construction of the homes in order to secure a C/O so that the homes could be listed for sale or rented." With respect to the possible sale of the real estate, the court stated: The [p]laintiff never filed a motion to compel the sale of the FMR, Margaretville or the Florida [P]roperty. The parties entered 7 A-0746-13T4 into a [c]onsent [o]rder dated August 17, 2012, in which the [p]laintiff did not seek the sale of any of the properties. The [c]ourt notes that it is uncontroverted that the sale of any of the properties at the present time is likely to be a "short-sale." Neither party has the financial ability to deal with the tax consequences of a short sale. Even if there was not an agreement not to list the properties for sale, [p]laintiff has failed to introduce any evidence that they could have been sold, with or without a C/O. The [p]laintiff could have contacted [r]ealtors in Florida to produce evidence contrary to the [d]efendant's testimony. The [p]laintiff did not. Likewise, the [p]laintiff has failed to produce any appraisals that would establish either the FMR or Margaretville could be sold without a shortfall. The [p]laintiff has failed to produce any plan as to how her share of any shortfall would be paid. Relevant to this appeal, the amended order stated: 1. The provision of the Final Dual Judgment of Divorce limiting the defendant's right to collect any monies due him from the plaintiff from the supplemental alimony awarded to the plaintiff as defined in the [c]ourt's decision dated the same date, is vacated. 2. The [c]ourt finds that the plaintiff entered into the agreement with the defendant to maintain all of the real properties including their home in Upper Saddle River, Margaretville and Florida and to share in all the profits and losses equally; and that the plaintiff agreed to be responsible for one- half of the capital improvements to the Florida property. 8 A-0746-13T4 6. The defendant shall remain in the [FMR] with the children, as the parties agreed that the [FMR] will not be listed for sale at the present time, as any such sale is likely to result in a "short sale." 7. The defendant shall pay utilities, lawn care, snow removal and the first $500 of any noncapital repairs on the [FMR]. 8. All other costs with respect to the [FMR], including but not limited to the first mortgage, [home equity line of credit account], real estate taxes, capital repairs, and noncapital repairs, in excess of $500 shall be paid equally by the plaintiff and defendant. 9. Since the parties agree, the Margaretville vacant land shall remain listed for sale. 10. The parties shall equally be responsible for all costs with respect to the Margaretville vacant land until it is sold. 11. When the Margaretville vacant land is sold, the entire net proceeds shall be paid to the defendant, provided that the plaintiff credited one half of the net proceeds as against the monies owed to the defendant as set forth in this order and the [FJOD]. 12. Since the plaintiff and defendant agreed not to sell the Florida property but rather invest in completing the homes under construction after the [divorce] decision was entered and also agreed to secure the subdivision approvals, the defendant shall continue to manage the Florida property, provided that the defendant shall however consult with the plaintiff and advise her as 9 A-0746-13T4 to any further capital improvements he may seek to undertake. 13. No further capital improvements shall be undertaken on the Florida properties without the consent of the plaintiff, which consent shall not be unreasonably withheld, unless the defendant is prepared to advance all monies required, then no such consent shall be required. 17. The plaintiff is directed to pay the defendant $621,284.70, without considering the payments that the defendant made for the plaintiff and children for which he is entitled to additional reimbursement . . . . 18. The plaintiff shall pay defendant for the plaintiff's children's expenses advanced by the defendant as set forth on schedule L except for those items which the [c]ourt has crossed out which amount owed to the defendant totals $124,425.19. 19. The total which the plaintiff owes to the defendant, pursuant to paragraphs 17 and 18 of this Order, is $745,709.89 ($621,284.70 plus $124,425.19). 20. $250,000 shall be deducted from the plaintiff's one-half share of the defendant's 401(k) plan that is subject to equitable distribution, provided that the plaintiff shall receive credit of $200,000 from the $745,709.89 owed to the defendant, reducing the amount owed by the plaintiff to the defendant to $545,709.89. 21. Defendant shall continue to pay the plaintiff 30% of his current base income of $500,000 or $150,000 per year of $6,250 semi- monthly as alimony. 10 A-0746-13T4 26. Should the former marital residence, the Margaretville residence or vacant land, or any of the Florida properties be sold in the future, the plaintiff's share of the proceeds shall be paid to the defendant until she has paid in full the $545,709.89 as set forth in paragraph 20 above, reimbursement of the children's custodial accounts as set forth in paragraph 16 above, any child support arrearages owed from July 1, 2013, or her share of the expenses for the former marital residence, Margaretville residence or vacant land, Florida properties, or life insurance premiums from July 1, 2013. 27. Any alimony due to plaintiff from her 20% share of the defendant's commissions shall not be paid to her, but credited against her obligations to the defendant until all of her obligations, as set forth herein and the Final Dual Judgment of Divorce, are paid in full. 30. The parties are to negotiate with or take action against the merchant with respect to the propriety sale of jewelry by the plaintiff. Any recovery shall be divided equally by the parties after first paying the defendant the $10,000 that the plaintiff received. The trial court also awarded defendant the following credits: (1) $70,000 for counsel fees paid on plaintiff's behalf in the divorce and domestic violence actions from defendant's earnings after the divorce complaint was filed; (2) $44,813.25 for the surrender of the Northwestern Policy; and (3) $42,422.54 11 A-0746-13T4 representing plaintiff's forty percent share of Kaufman's and Solomon's fees. Plaintiff sought reconsideration, which was denied on September 18, 2013. In its written decision, the trial court stated: The [p]laintiff does not specifically set forth where the [c]ourt erred. The Plaintiff's brief is directed at only the issue as to whether the [p]laintiff agreed with the [d]efendant to complete construction of the Florida Properties and to withhold the decision to sell the [FMR] and the [Margaretville property]. The [c]ourt decision as to all other issues is not raised in the [p]laintiff's motion for reconsideration. As set forth in the [d]ecision, the amount of the capital improvements to complete construction of the Florida Properties is $359,035.08. The [p]laintiff argues that she never agreed to complete construction of the Florida Properties. The [p]laintiff never explained why she did not, therefore, request the sale of the Florida properties in her motions filed December 16, 2011 and March 30, 2012. The [p]laintiff did not address any issue as to the sale or completion of the Florida Properties in the [c]onsent [o]rder dated August 17, 2012. The [p]laintiff testified that she never read the Judgment of Divorce and accompanying decision which provided for the FMR and Margaretville to be sold by a date certain unless the parties agreed otherwise. The parties were aware that it appeared that both the FMR and Margaretville were encumbered by 12 A-0746-13T4 liens which exceeded their apparent fair market value ("FMV"). Whether the construction of the Florida Properties was to be completed was raised by the [c]ourt to the [p]laintiff. The [p]laintiff testified that she wanted to sell the FMR. The [p]laintiff secured a listing agreement for the FMR. The [p]laintiff secured a listing for vacant land associated with Margaretville but not for the residence. The [p]laintiff made no effort to secure a listing for the Florida Properties. The [p]laintiff concedes in their post hearing brief that the liens filed as against the Florida Properties exceed their FMV. The [p]laintiff never moved to enforce a sale of any of the properties pursuant to the JOD. The [d]efendant completed construction of the Florida Properties in order to secure certificates of occupancy so that if the general market improved the homes could be sold. The real estate market continued in a depressed state. As a result, the completed homes were leased in order to limit the cost of supporting the continuing mortgage costs and real estate taxes. The [c]ourt does not find the argument that it is not equitable for the [p]laintiff to be responsible for 50% of the capital costs and maintenance given the disparity in their income to be persuasive. The [p]laintiff seeks to retain 50% of any profit generated by the sale of the various properties. The [d]efendant offered to assume responsibility to the various properties subject to a diminished interest on the part of the [p]laintiff. The [p]laintiff declined [d]efendant's offer. 13 A-0746-13T4 On appeal, plaintiff argues: I. THE RECORD BELOW DOES NOT SUPPORT THE TRIAL COURT'S FINDINGS THAT THERE WAS A MUTUAL AGREEMENT THAT THE FLORIDA PROPERTIES WERE TO BE RETAINED BY THE PARTIES AND THAT CONSTRUCTION BE COMPLETED SOLELY BY DEFENDANT AS A JOINT ENDEAVOR. A. The Trial Court Erred in Finding That There Was An Agreement Between the Parties As to the Florida Properties. B. Alternatively, If There Was an Agreement Between the Parties to Retain the Florida Properties and For Defendant to be Solely Responsible for the Management and Maintenance Thereof and For Plaintiff to Share the Expenses Equally, The Agreement Should be Set Aside. II. THE TRIAL COURT FAILED TO CONSIDER THE VOLUNTARY NATURE OF THE PAYMENTS MADE BY DEFENDANT ON BEHALF OF THE PLAINTIFF AND CHILDREN AND THEREFORE, DEFENDANT SHOULD NOT BE ENTITLED TO VARIOUS CREDITS. III. THE DEFENDANT WAS AWARDED VARIOUS CREDITS TO WHICH HE WAS NOT ENTITLED PURSUANT TO THE COURT ORDERS. IV. THE TRIAL COURT FAILED TO PROPERLY ADDRESS THE ISSUE OF THE DISPOSITION OF JEWELRY AND INACCURATELY PROVIDED DEFENDANT WITH FULL CREDIT FOR MONIES PREVIOUSLY RECEIVED BY PLAINTIFF AFTER THE SALE OF JEWELRY. II. 14 A-0746-13T4 Generally, "findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)). "Therefore, an appellate court should not disturb the 'factual findings and legal conclusions of the trial judge unless [it is] 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.'" Id. at 412 (alteration in original) (quoting Rova Farms, 65 N.J. at 484). "The findings of the Family Part are entitled to particular deference in view of its 'special expertise in the field of domestic relations.'" Pressler & Verniero, Current N.J. Court Rules, cmt. 6.2 on R. 2:10-2 (2018) (quoting Cesare, 154 N.J. at 412-13). "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Cesare, 154 N.J. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). 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." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citations omitted). 15 A-0746-13T4 III. In Point I, plaintiff contends the record does not support the trial court's findings that the parties reached a mutual agreement to retain the Florida properties and for defendant to construct the residential units as a joint endeavor. Primarily, plaintiff asserts the purported agreement lacks a meeting of the minds and is not supported by valid consideration. Alternatively, plaintiff suggests, if there was an agreement, it should be set aside as the product of overreaching by defendant who took advantage of his then confidential relationship with plaintiff. Additionally, plaintiff argues the agreement must be set aside because the terms of the agreement were manifestly unfair or oppressive and dictated by defendant, the dominant party. We are unpersuaded by these arguments and affirm the trial court's ruling on the issues pertaining to the Florida properties substantially for the reasons expressed by the trial judge in his written opinion and September 16, 2013 order. We add the following comments. As to credibility, the judge stated he had "the opportunity to access the credibility of the parties, who both testified." Based on his findings, we surmise the judge tacitly found defendant's testimony to be more credible than plaintiff's. While the judge could have made more explicit credibility findings, the 16 A-0746-13T4 court essentially accepted defendant's version. "Thus, by that finding, the trial court essentially credited [defendant's] version and not [plaintiff's]." See N.J. Div. of Youth and Family Servs. v. M.C. III, 201 N.J. 328, 345 (2010). The record also demonstrates plaintiff's testimony was argumentative, sometimes evasive, and riddled with internal contradictions and inconsistencies. The factual findings rendered by the trial judge regarding the issues involving the Florida properties are amply supported by substantial, credible evidence in the record. As indicated by the judge, much of defendant's testimony was uncontroverted. Many facts were not disputed by plaintiff. The judge's conclusions logically flow from those findings. Applying the appropriate deference, we discern no basis to disturb the trial court's findings and conclusions as to issues pertaining to the Florida properties. IV. Plaintiff further argues the trial court: (1) failed to consider the voluntary nature of the payments made by defendant on behalf of plaintiff and the children (Point II), (2) erred by awarding defendant various credits to which he was not entitled (Point III), and (3) failed to properly address the disposition of the jewelry and erred by awarding defendant full credit for 17 A-0746-13T4 monies previously received by plaintiff after the sale of the jewelry (Point IV). Plaintiff further contends the trial court did not provide the requisite findings or analysis leading to its conclusions. A trial court must state the reasons for its conclusions. Ribner v. Ribner, 290 N.J. Super. 66, 76 (App. Div. 1996); R. 1:7- 4). As we explained in Ribner: The trial court must clearly state its factual findings and correlate them with relevant legal conclusions, so that parties and the appellate courts may be informed of the rationale underlying the conclusion. Without the benefit of such findings, it is impossible for an appellate court to perform its function of deciding whether the determination below is supported by substantial credible proof on the whole record. [Id. at 77 (citations omitted).] Accord Ricci v. Ricci, 448 N.J. Super. 546, 574-75 (App. Div. 2017); Filippone v. Lee, 304 N.J. Super. 301, 306 (App. Div. 1997). Here, the trial court did not make sufficient findings of fact and conclusions of law in his award to defendant of credits for expenses he paid, the entire cash surrender value of the Northwestern life insurance policy, and jewelry sales proceeds. The trial court did not express its reasoning for allowing credit for some expenses paid by defendant and not others. As a result, we are unable to perform our review function as to the credits awarded. 18 A-0746-13T4 Similarly, we are unable to determine the basis for awarding defendant the entire $44,813.25 cash surrender value of the Northwestern life insurance policy. The FJOD required the policy to be surrendered, with the proceeds used to pay marital debts and any unused excess to be equally divided. A subsequent February 14, 2012 order directed the policy to be surrendered and the proceeds equally shared. The trial court did not adequately explain the basis for determining defendant was entitled to the full cash surrender value. Finally, the trial court determined defendant was entitled to a credit for the entire $10,000 proceeds from the sale of the jewelry, except for any recovery from a separate action against the merchant jeweler, which would be divided equally. Plaintiff argues defendant never sought equitable distribution of the jewelry. Claiming she believed the jewelry was hers, plaintiff sold the jewelry to a third party for $10,000. The trial court did not provide a sufficient analysis for its ruling. We are constrained to vacate and remand the portions of the orders pertaining to the proper credits to be awarded to defendant for the expenses he paid, the Northwestern Policy proceeds, and the 19 A-0746-13T4 jewelry sale proceeds.1 The remand court shall reconsider these issues and make findings of fact and conclusions of law. Affirmed in part and vacated and remanded in part for further proceedings consistent with this opinion. We do not retain jurisdiction. 1 We recognize the judge who presided over the trial, post- judgment motions, and plenary hearing is now retired. 20 A-0746-13T4

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Docket No.: a1029-16
Decided: 2018-07-13
Caption: SANDRA WOYTAS v. GREENWOOD TREE EXPERTS, INC
Status: unpublished
Summary:
PER CURIAM Plaintiff Sandra Woytas, surviving widow of Timothy Woytas (decedent) and the administrator of his estate, appeals from an August 30, 2016 Chancery Division order granting summary judgment to defendant Christina Woytas,1 decedent's ex-wife, individually and on behalf of her and decedent's three children. We review the court's summary judgment disposition de novo, considering whether the evidence, "when viewed in the light most favorable to the non-moving party, [is] sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 115 (2014) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). Following our review of the record, and in 1 For ease of reference, and intending no disrespect, we refer to the defendants by their first names. 2 A-1029-16T1 light of applicable law, we are convinced the court correctly granted summary judgment in favor of Christina and her children, and affirm. I Christina and decedent divorced in February 2013. Their dual judgment of divorce incorporated their marital separation agreement (MSA), which required decedent maintain $750,000 in life insurance naming their three children as beneficiaries, and $400,000 in life insurance naming Christina as beneficiary. The MSA also included a handwritten, initialed provision stating: "In the event either party fails to maintain the life insurance . . . such party's estate shall be liable for any outstanding obligations owed under this agreement." The MSA further obligated decedent pay Christina alimony of $60,000 per year for twelve years, and $1551 monthly in child support "until such time as one of the children [is] emancipated." In accordance with the MSA, decedent obtained a $750,000 life insurance policy from Symetra Life Insurance Company (Symetra), naming his children as equal beneficiaries and Christina as trustee. Also pursuant to the MSA, decedent secured a $100,000 life insurance policy with Symetra, naming Christina as beneficiary. Decedent also continued to maintain a pre-existing 3 A-1029-16T1 $300,000 life insurance policy that named Christina as beneficiary. Decedent subsequently married plaintiff. After their marriage, he obtained a $500,000 life insurance policy from AIG naming plaintiff as beneficiary. Plaintiff alleges decedent secured that policy to support her and her two children from a prior marriage because she lost her right to lifetime alimony when she married him. Decedent committed suicide in August 2014. He died intestate, and in September 2014, the Morris County Surrogate appointed plaintiff as administrator of decedent's estate. Christina received $300,000 from the life insurance policy that predated the MSA; however, Symetra refused to pay the $100,000 and $750,000 policies based on two-year suicide exclusions. Instead, they returned decedent's paid premiums plus interest to Christina and the children. AIG similarly refused payment on the $500,000 policy naming plaintiff as beneficiary. Christina asserted a personal claim against decedent's estate for $100,000, and as guardian on behalf of the children, she asserted a separate claim for $750,000, representing the unpaid life insurance owed under the MSA. Defendant John Woytas, decedent's father, asserted a claim totaling $58,800 for unpaid portions of a promissory note and a personal loan he made to 4 A-1029-16T1 decedent.2 Plaintiff asserted a $500,000 claim for the unpaid life insurance policy naming her as beneficiary. In January 2016, plaintiff, individually and as administrator, filed a verified complaint in the Probate Part, asserting claims against: 1) Greenwood Tree Experts, Inc. and Greenwood Lawn Services, Inc., two corporations in which decedent owned equal one-third shares with defendants Raymond Woytas, his brother, and David Dubee, his cousin; and 2) Greenwood Continuity Trust, a trust established in a buy-sell agreement (collectively, Greenwood defendants). Plaintiff sought payment into the estate for decedent's share of the business and payments owed. Plaintiff eventually settled all claims against the Greenwood defendants for $550,000. In June 2016, Christina filed a motion for summary judgment seeking, in relevant part, an order declaring decedent breached the MSA by committing suicide, and that the children's claim for $750,000 and her claim for $100,000 had priority over all other claims against the estate. She also sought to prevent plaintiff from receiving a statutory commission as administrator, claiming plaintiff breached her fiduciary duties. 2 We previously granted defendant leave to supplement the record to reflect that John Woytas later released all claims against the estate after the entry of the order under review; as a result, he did not participate in this appeal. 5 A-1029-16T1 Before the court decided Christina's summary judgment motion, plaintiff, as administrator, filed a verified complaint seeking a judgment declaring the estate insolvent because it lacked sufficient assets to pay decedent's debts. She filed an accounting indicating the estate had $573,593.33 in assets, including: $550,000 from a settlement with the Greenwood defendants; $20,749.25 from decedent's length-of-service award program with the Whippany Fire Department; and $2844.08 from an account decedent had with a stock broker.3 The accounting listed $126,626.86 in administration expenses, leaving $446,966.47 available for distribution to the estate's claimants. Because the claims against the estate totaled $1,408,800, the accounting proposed paying each claim proportionately at 31.7 cents on the dollar. Following oral argument on Christina's motion for summary judgment, the court issued a written opinion and accompanying orders partially granting and partially denying that motion.4 The judge found that by committing suicide, decedent failed to maintain 3 The accounting also listed two assets that passed outside of the estate — a $285,205.56 payment from decedent's individual retirement account, which plaintiff received, and the $300,000 in life insurance benefits, which Christina received. 4 The judge initially granted Christina's motion to prohibit plaintiff from receiving a statutory commission as administrator of decedent's estate; however, the court later granted plaintiff's motion for reconsideration, and awarded her a $23,075 commission. 6 A-1029-16T1 the required life insurance, and therefore breached the MSA. He also found the claims of Christina and the children against the estate had priority over all other claims. Lastly, the judge found the children were entitled to the full $750,000 amount of the life insurance policy, as specified in the MSA; however, because the estate was insolvent, the children received approximately $454,467 — the entire corpus of the estate after accounting for various fees and expenses. On October 28, 2016, the court entered an order directing the Surrogate to disburse funds for decedent's two younger children to Christina as trustee.5 II On appeal, plaintiff first argues the court erred when it determined decedent's suicide was a breach of the MSA and summary judgment was not appropriate because there exists a disputed issue of material fact. We disagree. The question of whether suicide constitutes a breach of an MSA is an issue of first impression in New Jersey. Relying on persuasive authority, the trial court held decedent was obligated to maintain life insurance, and by committing suicide, he breached 5 The oldest child had already withdrawn her portion of the funds, after turning eighteen. 7 A-1029-16T1 that obligation. In arriving at that decision, the court relied on Tintocalis v. Tintocalis, 25 Cal. Rptr. 2d 655, 658-59 (Cal. Ct. App. 1993). The facts of Tintocalis are analogous to the instant action and concern California's counterpart to N.J.S.A. 2A:34-25, which permits the court to order a spouse "to maintain life insurance for the protection of the former spouse . . . or the children of the marriage . . . in the event of the payer spouse's . . . death." Tintocalis, 25 Cal. Rptr. 2d at 656. In Tintocalis, the court ordered the decedent to "'immediately secure' and 'maintain'" life insurance and name his ex-wife as the policy's beneficiary. Id. at 657. The decedent complied in securing the life insurance; however, he committed suicide fourteen months later, thus invalidating the policy. Ibid. The ex-wife asserted a claim against the decedent's estate for the value of the policy, arguing the decedent breached the court's order by committing suicide. Ibid. The court agreed, holding the decedent "took some steps to maintain the policy by paying the premiums but he thereafter defeated the policy by committing suicide. [The decedent's] actions cannot reasonably be equated with 'maintaining' the policy." Id. at 658. We are persuaded by the Tintocalis court's reasoning and agree with the court's holding that "[t]he order to 'maintain' 8 A-1029-16T1 life insurance carries the obligation not to do anything [that] would interfere with the benefits being paid thereunder." Id. at 657. We are further guided by our Supreme Court's explanation of the purpose of N.J.S.A. 2A:34-25's life insurance provision, which is to ensure a sufficient fund for the payor spouse's support obligation should he or she die before fulfilling that responsibility. Jacobitti v. Jacobitti, 135 N.J. 571, 581-82 (1994). With these principles in mind, we hold decedent breached the MSA when, by committing suicide, he failed to maintain the requisite life insurance policies. To hold otherwise would permit decedent to evade his support obligations, contrary to the Legislature's intent in enacting N.J.S.A. 2A:34-25. Moreover, we reject plaintiff's argument that decedent's intent in committing suicide has bearing on our disposition. Decedent failed to comply with the plain language of the MSA. Accordingly, as per the MSA, decedent's estate remains liable for that failure. III We next consider plaintiff's claim that the court erred by finding that under the MSA, the children were entitled to the entire $750,000 face value of the life insurance policy from decedent's estate. Plaintiff contends the court awarded the children a windfall because $750,000 exceeds the maximum amount 9 A-1029-16T1 of child support decedent would have paid had he lived until all three children were emancipated. A spousal agreement is viewed with "a predisposition in favor of its validity and enforceability." Petersen v. Petersen, 85 N.J. 638, 642 (1981); see also Quinn v. Quinn, 225 N.J. 34, 44-45 (2016) (internal quotation marks and citation omitted) ("Therefore, fair and definitive arrangements arrived at by mutual consent should not be unnecessarily or lightly disturbed."). There is no legal or equitable basis to reform the parties' MSA absent "unconscionability, fraud, or overreaching in the negotiations" of the MSA. N.H. v. H.H., 418 N.J. Super. 262, 282 (App. Div. 2011) (citation omitted). A marital agreement is enforceable in equity, and the language of the MSA controls so long as it is fair and just. Id. at 279-80 (citing Eaton v. Grau, 368 N.J. Super. 215, 224 (App. Div. 2004)). In the instant matter, the terms of the MSA expressly provide that decedent "shall . . . obtain a life insurance policy with a face value of $750,000 naming each child as a beneficiary in an equal amount and naming the Wife as the trustee of this policy. As each child is emancipated, the face value of this policy may be reduced . . . ." The MSA also provided decedent would pay the children's medical insurance, and contribute to their medical expenses, extracurricular activities, cell phone bills, and 10 A-1029-16T1 college expenses. Thus, based on the plain language of the MSA, decedent was required to maintain a life insurance policy to comprehensively support his children, which includes more than merely child support payments, but also medical and college expenses. Accordingly, we reject plaintiff's argument that, at most, the children are only entitled to the cumulation of decedent's monthly child support obligation. Decedent committed suicide prior to any of his children's emancipation. The terms of the MSA dictate the children are entitled to the benefits of a $750,000 life insurance policy. Awarding the children less than that amount would impermissibly rewrite the MSA. Thus, plaintiff's argument lacks persuasion, and in so holding, we need not address defendants' claims regarding plaintiff's alleged waiver of the argument. IV Lastly, plaintiff contends the court erred in finding the children's claims against the estate were entitled to priority over her claim; to wit, she argues the court impermissibly categorized future child support payments as a judgment, thereby elevating them above unsecured creditors. Plaintiff's argument lacks persuasion. 11 A-1029-16T1 The existence of a court order establishing a life insurance obligation gives it priority over a subsequent contractual arrangement made by a decedent. See Della Terza v. Estate of Della Terza, 276 N.J. Super. 46, 49 (App. Div. 1994). A parent obligated to maintain life insurance for the support of a child cannot effectively terminate that obligation by disregarding or taking an action inconsistent with that commitment. See Prudential Ins. Co. of Am. v. Prashker, 201 N.J. Super. 553, 557 (1985) ("[A]n insured by reliance on standard insurance law is not able to frustrate a judgment of a court."). Furthermore, the Chancery Division's Probate Part is a court of equity. In re Estate of Stockdale, 196 N.J. 275, 304 (2008). "Applying principles of fairness and justice, a judge sitting in a court of equity has a broad range of discretion to fashion the appropriate remedy in order to vindicate a wrong consistent with . . . principles of fairness, justice, and the law." Kingsdorf v. Kingsdorf, 351 N.J. Super. 144, 157 (App. Div. 2002) (quoting Graziano v. Grant, 326 N.J. Super. 328, 342 (App. Div. 1999)). An MSA incorporated "into a divorce decree . . . if found to be fair and just . . . is specifically enforceable in equity." N.H., 418 N.J. Super. at 279-80 (quoting Eaton, 368 N.J. Super. at 224). 12 A-1029-16T1 The State has recognized an important "interest in assuring continued support for unemancipated children, even after the death of a parent." Della Terza, 276 N.J. Super. at 49 (citing Grotsky v. Grotsky, 58 N.J. 354, 361 (1971)). "A person who is required to be named as the beneficiary of life insurance under a divorce decree has a vested equitable interest in such life insurance." Konczyk v. Konczyk, 367 N.J. Super. 551, 561 (App. Div. 2003). Moreover, N.J.S.A. 2A:17-56.23b(a) provides: A judgment for child support entered pursuant to . . . [N.J.S.A.] 2A:17-56.23a . . . and docketed with the Clerk of the Superior Court shall be a lien against the net proceeds of any settlement negotiated prior or subsequent to the filing of a lawsuit, civil judgment, civil arbitration award, inheritance or workers' compensation award. The lien shall have priority over all other levies and garnishments against the net proceeds of any settlement negotiated prior or subsequent to the filing of a lawsuit, civil judgment, civil arbitration award, inheritance or workers' compensation award unless otherwise provided by the Superior Court, Chancery Division, Family Part. . . . The lien shall stay the distribution of the net proceeds to the prevailing party or beneficiary until the child support judgment is satisfied. N.J.S.A. 3B:22-2 states that when the assets of an estate are insufficient to satisfy all claims against it, creditors should be paid in the following order: a. Reasonable funeral expenses; b. Cost and expenses of administration; 13 A-1029-16T1 c. Debts for the reasonable value of services rendered to the decedent by the Office of the Public Guardian for Elderly Adults; d. Debts and taxes with preference under federal law or the laws of this State; e. Reasonable medical and hospital expenses of the last illness of the decedent, including compensation of persons attending him [or her]; f. Judgments entered against the decedent according to the priorities of their entries respectively; [and] g. All other claims. The statute further provides, "no preference shall be given in the payment of any claim over any other claim of the same class, and a claim due and payable shall not be entitled to a preference over claims not due." N.J.S.A. 3B:22-2. Plaintiff misconstrues the court's priority analysis. She claims the court granted Christina and the children a "post-death" judgment for future child support, and then used that judgment as a basis for finding they were entitled to priority under N.J.S.A. 3B:22-2(f). The court, however, did not use the judgment it entered in favor of the children to find they were entitled to priority. Rather, it found the MSA's requirement that decedent maintain life insurance for his children's benefit, which was incorporated into the dual judgment of divorce, constituted a 14 A-1029-16T1 child support order, and decedent breached that order when he failed to maintain the required life insurance by committing suicide. We agree with the Chancery judge, and hold the children's claims against the estate have priority.6 The MSA — incorporated into the final judgment of divorce — clearly indicates decedent and Christina intended for the children to receive $750,000 in life insurance proceeds for support in the event of decedent's death. Decedent's suicide precluded payment of those proceeds; yet, the MSA specified that decedent's estate was liable for his life insurance obligations. In contrast, plaintiff contends decedent made her an oral promise to maintain life insurance that named her as beneficiary because she lost her right to permanent alimony when she married decedent. Unlike decedent's obligations under the MSA, this promise was not reduced to a judgment. Accordingly, the MSA clearly establishes the children's equitable interest in the proceeds of the life insurance policy, and basic principles of equity mandate that their claims in the estate have priority over all other creditors. See DeCeglia v. 6 Because our analysis diverges from the Chancery judge, we note that "we 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). 15 A-1029-16T1 Estate of Colletti, 265 N.J. Super. 128, 140 (App. Div. 1993) (quoting Aetna Life Ins. Co. v. Bunt, 754 P.2d 993, 998 (Wash. 1988)) ("[C]laims for child support . . . are not equivalent to the claims of 'creditors' . . . . [Rather, t]he basis for child support is the natural obligation of a parent to support his or her children; the validity of [the] claim does not depend upon either contract or judgment."). Affirmed. 16 A-1029-16T1

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Docket No.: a1852-15
Decided: 2018-07-13
Caption: PAULBERGER, Derivatively on Behalf of MERCK & CO., INC v. KENNETH C. FRAZIER
Status: unpublished
Summary:
PER CURIAM Plaintiff Paul Berger appeals from a December 4, 2015 order that dismissed his shareholder derivative lawsuit filed against the individual members of Merck & Company's (Merck's) Board of Directors (Board) and three members of Merck's management (collectively, defendants).1 The complaint alleged that 1 Defendants include: Kenneth C. Frazier, Merck's President and Chief Executive officer since 2011; Robert M. Davis, Merck's Executive Vice President and Chief Financial Officer (CFO) since 2014; Peter N. Kellogg, Merck's Executive Vice President and Chief Financial Officer from 2007 to April 2014; Leslie A. Brun, a member of the Board since 2008; Thoms R. Cech, a member of the Board since 2009; Thomas H. Glocer, a member of the Board since 2007; William B. Harrison, Jr., a member of the Board since 1999; C. Robert Kidder, a member of the Board since 2005; Rochelle B. Lazarus, a member of the Board since 2004; Carlos E. Represas, a member of the Board since 2009; Patricia F. Russo, a member of the Board since 1995; Craig B. Thompson, a member of the Board since 2008; Wendell P. Weeks, a member of the Board since 2004; and Peter C. Wendell, a member of the Board since 2003. 2 A-1852-15T1 defendants caused Merck to fail to disclose its tax liability on indefinitely reinvested overseas earnings, otherwise known as the Repatriation Tax (Tax), when it filed its 2013 Form 10-K with the Securities and Exchange Commission (SEC). We affirm dismissal of the complaint under Rule 4:6-2(e), for failure to state a claim upon which relief can be granted. I. Merck is a Fortune 500 company headquartered in New Jersey. Its common stock is traded on the New York Stock Exchange. It is a "global health care company." In 2013, its revenue was approximately $43.9 billon; it had $57.1 billion of earnings from its subsidiaries outside the United States. Plaintiff is a stockholder of Merck. The Financial Accounting Standards Board (FASB)2 has developed various accounting standards. Standard 740-30-50-2 requires disclosure by companies of "[t]he amount of the unrecognized deferred tax liability for temporary differences related to investments in foreign subsidiaries and foreign corporate joint ventures that are essentially permanent in 2 FASB "establishes financial accounting and reporting standards for public and private companies and not-for-profit organizations that follow Generally Accepted Accounting Principles." About Us, FASB, https://www.fasb.org/jsp/FASB/Page/LandingPage&cid=1175805 317407. 3 A-1852-15T1 duration if determination of that liability is practicable or a statement that determination is not practicable." Merck's Form 10-K for year end 2013, filed on February 27, 2014, provided that, [a]t December 31, 2013, foreign earnings of $57.1 billion have been retained indefinitely by subsidiary companies for reinvestment; therefore, no provision has been made for income taxes that would be payable upon the distribution of such earnings and it would not be practicable to determine the amount of the related unrecognized deferred income tax liability. [Emphasis added.] Plaintiff contends in his complaint that calculation of the Tax is routine, requiring only that "current tax laws and rates" be applied to "historical permanently reinvested earnings." He asserts that Merck's Form 10-K was misleading without the Tax information. On October 28, 2014, plaintiff demanded that the Board file a lawsuit against Merck's current and past directors for their failure to comply with Standard 740-30-50-2 when reporting the Tax. Plaintiff asserted that this failure breached their fiduciary duties to shareholders. The Board hired the law firm of Forman & Shapiro, LLP (F&S) to conduct an investigation of plaintiff's claims and to report its findings to the Board. F&S retained an accounting expert, 4 A-1852-15T1 interviewed partners at PricewaterhouseCoopers, who were the accountants for Merck, and spoke with certain current and former Merck employees. It reviewed records from Merck's Audit Committee and communications between the Board and the SEC. F&S reported its findings at the February 2, 2015 Board meeting, advising that calculation of the deferred tax liability was "not practicable" and that it was "reasonable" for Merck not to provide this Tax in its Form 10-K. On February 25, 2015, the Board declined to file the lawsuit requested by plaintiff, finding it was "not in the company's best interests." Plaintiff filed this shareholder derivative lawsuit on April 7, 2015. The complaint alleged defendants breached their fiduciary duty to Merck by causing Merck to fail to disclose the Tax in its Form 10-K filed on February 27, 2014 (for the year ending December 31, 2013) with the SEC. It included a single count against defendants for breach of their duties of "due care, loyalty, good faith, and other obligations to Merck." The relief sought included a declaration of the breach, an affirmative injunction requiring defendants to comply with the accounting standard to disclose the Tax, monetary damages and attorney's fees. The complaint alleged that other large multinational companies, such as Apple, Microsoft and Citigroup, made disclosure of the Tax. "On information and belief," the complaint averred 5 A-1852-15T1 that Merck periodically made an estimate of the Tax. Plaintiff also said that for three prior years, Merck calculated and reported a "reconciliation between the effective tax rate and the U.S. statutory [tax] rate, which included . . . foreign earnings and unremitted foreign earnings." The complaint alleged that potential changes to the tax laws could tax "accumulated unrepatriated foreign earnings of controlled foreign companies," creating a financial impact for Merck. Plaintiff complained that Merck's Board did not "investigate or consider the consequences" of violating this FASB standard even though a July 5, 2014 New York Times article had discussed the same issue and specifically referenced Merck. Another shareholder, the Beatrice Corwin Living Irrevocable Trust, requested access to books and records about the same issue. According to plaintiff, the Board's minimal response showed it did not investigate or consider the issue. In July 2015, defendants filed a motion to dismiss the verified complaint under Rule 4:6-2(e), for failure to state a claim. Defendants argued that plaintiff provided no factual support for its allegation that Merck could make the Tax calculation "practicably." Defendants averred that the complaint did not allege any acts or omissions by the individual directors that breached their fiduciary duties to the company. Plaintiff 6 A-1852-15T1 did not identify any purported harm to the company. Defendants also argued that the directors' decision not to institute suit was protected by the modified business judgment rule. Judge Thomas J. Walsh dismissed plaintiff's complaint under Rule 4:6-2(e) for failure to state a claim for breach of fiduciary duty on December 4, 2015, in an oral opinion. Plaintiff's complaint did not allege that defendants breached any "law, regulation or other similar authority" by reporting that Merck's deferred tax liability was not practicable to calculate. Plaintiff did not articulate any facts to support his claims. Plaintiff did not say how defendants breached any fiduciary duty or that Merck's practices were "not customary in the industry." Merck's certificate of incorporation "parallel[ed]" N.J.S.A. 14:2-7(3) and limited the liability of a director or officer. The court found the complaint made "no allegation that the Board knew of a duty to act in regard to disclosure and consciously failed to do so; nor [did] plaintiff's [c]omplaint assert any allegations regarding the Board's oversight of Merck's accounting practices." There was no obligation by the Board to react to the New York Times newspaper article. The trial court did not address defendants' modified business judgment rule defense or their contention that plaintiff did not suffer damages. 7 A-1852-15T1 On appeal, plaintiff claims the trial court erred because it was practicable for the company to calculate and disclose the Tax. Plaintiff argues that Rule 4:6-2(e) was not properly applied. Had it been, the court would have accepted as true all the allegations he made, including that the Tax could be calculated. Plaintiff alleged the Board members breached their duty to "keep informed, to read and understand Merck's financial statements, including its tax disclosures," by not considering the tax implications of the Tax. Also, the complaint should not have been dismissed based on the exculpatory provision in Merck's certificate of incorporation. This was extrinsic to the complaint. It should not have been enforced at the pleading stage, before discovery. It was improper to deny injunctive relief because the exculpatory clause did not address it. Plaintiff claims that the modified business judgment rule cannot be used as an alternate basis to affirm the trial court because the trial court did not consider it. Finally, plaintiff argues that Robert Davis, Merck's current chief financial officer (CFO), is a necessary party to this litigation to enforce injunctive relief. We conclude that plaintiff's arguments lack merit and we affirm the dismissal of this litigation. 8 A-1852-15T1 II. We review de novo the challenged order that dismissed plaintiffs' complaint for failure to state a cause of action, applying the same legal standard as the trial court. Frederick v. Smith, 416 N.J. Super. 594, 597 (App. Div. 2010). A motion for failure to state a claim must be denied if, giving plaintiffs the benefit of all their factual allegations and all favorable inferences, a cause of action has been alleged in the complaint. Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989). Conclusory allegations do not provide an adequate basis to deny a motion to dismiss under Rule 4:6-2. Id. at 768. We agree with the trial court that the complaint was properly dismissed under Rule 4:6-2(e). There is no dispute that FASB standard 740-30-50-2 allows a company to report that it is not practicable to estimate the Tax. Financial Accounting Standard (FAS) 109 explains that a determination or calculation may be impracticable where "the cost to develop that information is excessive[.]" FAS No. 107, incorporated into a different section of the ASC, indicates that "practicable" means, "that an estimate . . . can be made without incurring excessive costs."3 3 See Statement of Financial Accounting Standards No. 107, Accounting for Income Taxes, 7 (Dec. 1991), http://www.fasb.org/jsp/FASB/Document_C/DocumentPage?cid12182201 23701&acceptedDisclaimer=true. 9 A-1852-15T1 Practicability, therefore, is a "dynamic concept," meaning what is practicable for one entity might not be for another and what is not practicable in one year might be practicable in another. We reject plaintiff's contention that we are required to accept as true his allegation that Merck can "practicably" estimate the Tax. That is a conclusion that he has not supported factually. Under Rule 4:6-2(e), we are required to accept as true facts that are alleged, but not conclusory allegations. Scheidt v. DRS Techs., Inc., 424 N.J. Super 188, 193 (App. Div. 2012). "[P]leadings reciting mere conclusions without facts and reliance on subsequent discovery do not justify a lawsuit." Glass v. Suburban Restoration Co., 317 N.J. Super. 574, 582 (App. Div. 1998); see Lederman v. Prudential Life Ins. Co. of Am., 385 N.J. Super. 324, 349 (App. Div. 2006). Plaintiff makes three arguments to support this conclusion, none of which are persuasive. Plaintiff contends on "information and belief" that Merck actually estimated the Tax. He provided no evidence or facts to support this. This claim is meaningless because it was based on information and belief, not on personal knowledge even though the complaint was verified. See Monmouth Cty. Social Serv. v. P.A.Q., 317 N.J. Super. 187, 193-94 (App. Div. 1998) (providing that a complaint that is made without 10 A-1852-15T1 personal knowledge, it is a nullity and insufficient to invoke the court's jurisdiction); see also R. 1:4-7. Next plaintiff says that Merck was required to make a reconciliation between the effective tax rate and the U.S. statutory tax rate and did so in 2011, 2012, and 2013. Defendants acknowledge that they were required to make a reconciliation between the effective tax rate and U.S. statutory tax rate, but that the calculation simply applied a 35% tax rate to foreign earnings. What is important here is that plaintiff did not explain how this reconciliation shows that Merck can practicably estimate the Tax at issue. This then is another bare conclusion, not supported by facts. Plaintiff contends that other multinational companies, such as Apple and Microsoft, disclose the amount of the Tax. However, that does not mean that Merck can do the same or that its corporate structure is similar. These are entirely different corporations with separate overseas business holdings. Equating one company's capabilities with another is speculative. Therefore, we agree with the trial court that the complaint was properly dismissed under Rule 4:6-2(e) because it relied on a newspaper article and conclusory statements without any supporting facts. Without factual support, we cannot "accept as true" plaintiff's conclusion that Merck can calculate the Tax "practicably." 11 A-1852-15T1 The breach of fiduciary duty claim also was properly dismissed by the trial court. The complaint alleged a single count for breach of fiduciary duty by Merck's directors and officers. Plaintiff argued that Merck's shareholders "have a right to expect that directors will exercise reasonable supervision and control over the policies and practices of a corporation," citing Francis v. United Jersey Bank, 87 N.J. 15, 36 (1981). He claims that defendants had a "duty to look" which included "reading and understanding financial statements, and making reasonable attempts at detection and prevention of . . . illegal conduct." Id. at 31, 39. Whether or not Francis sets forth the applicable standard, the complaint did not allege facts sufficient to meet the standard. The complaint did not cite a law or regulation violated by Merck's 2013 Form 10-K. It did not identify any inadequacies with Merck's internal controls or its financial reporting process. It did not say what accounting standards were violated. There was no obligation by the Board to act based on a newspaper article that mentioned the company. There were no factual allegations made against individual Board members. We discern no error by the trial court in dismissing the complaint in the alternative based on the exculpation clause in 12 A-1852-15T1 Merck's certificate of incorporation for directors and officers. It provided that all current and former directors and officers of the Corporation shall not be personally liable to the Corporation or its stockholders for damages for breach of duty owed to the Corporation or its stockholders, except that the provisions . . . shall not relieve a director or officer from liability for any breach of duty based upon an act or omission (a) in breach of such person's duty of loyalty to the Corporation or its stockholders, (b) not in good faith or involving a knowing violation of law or (c) resulting in receipt by such person of an improper personal benefit. The certificate of incorporation was referenced by plaintiff in his complaint. The trial court could rely on it in deciding the Rule 4:6-2(e) motion. See Myska v. N.J. Mfrs. Ins. Co., 440 N.J. Super. 458, 482 (App. Div. 2015) (quoting E. Dickerson & Son, Inc. v. Ernst & Young, LLP, 361 N.J. Super. 362, 365 n.1 (App. Div. 2003) ("a court may consider documents specifically referenced in the complaint 'without converting the motion into one for summary judgment.'"). Plaintiff's complaint did not allege facts showing the individual defendants breached their duty of loyalty, acted in bad faith, knew about any violation of law or benefited from the Form 10-K filing. We also reject plaintiff's argument that Robert Davis was a necessary party to the litigation. He was not CFO when the 2013 13 A-1852-15T1 Form 10-K was filed in February 2014. He is not needed for injunctive relief, given our decision here. In light of our opinion, we have no need to address any of plaintiff's arguments about the modified business judgment rule. Affirmed. 14 A-1852-15T1

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Docket No.: a0095-15
Decided: 2018-07-12
Caption: STATE OF NEW JERSEY v. DAVIS SANTIAGO
Status: unpublished
Summary:
PER CURIAM Defendant Davis Santiago appeals from his July 17, 2015 convictions for driving while intoxicated (DWI), N.J.S.A. 39:4- 50, which were his second and third convictions under that statute. He was convicted following de novo review in the Law Division of two municipal court appeals. Defendant claims that it was error to preclude him in both cases from calling an expert witness to testify about his "pre-existing physical impediments" and, in one of the cases, to admit the results from the Alcotest. He also appeals from the July 24, 2015 order that denied reconsideration of his request to stay the imposed fines and penalties.1 We affirm both convictions. I. On August 30, 2013, defendant was charged with DWI, following a motor vehicle stop in Montvale. The police stopped him again on September 13, 2013, in Park Ridge and arrested him on a new DWI charge. The Montvale case was tried on October 23, 2014, in municipal court. Defendant was convicted of DWI based on the Alcotest results that showed a .15 percent blood alcohol concentration (BAC). This was his second offense for driving while intoxicated. The Park Ridge case was tried on November 20, 2014, before the same municipal court judge. Defendant again was convicted of 1 Because this issue was not raised in his merits brief, it is deemed waived. Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014). 2 A-0095-15T4 DWI. This was his third conviction. The conviction was based on observation evidence, not on the result of the Alcotest. Defendant appealed both cases to the Law Division. Following de novo review, a Superior Court judge found defendant guilty of DWI in both cases. In the Montvale case, the judge found a per se violation of N.J.S.A. 39:4-50, based on the Alcotest and also convicted defendant based on observation evidence. Because this was his second violation, his driver's license was suspended for two years, he was required to attend the Intoxicated Drivers Resource Center (IDRC) for two days, install an interlock device for a year, and pay fines, penalties and costs. In the Park Ridge case, the judge held there was probable cause for the motor vehicle stop. The court based defendant's conviction on observation evidence, and not on the Alcotest. The court denied defendant's request, in both cases, to have Dr. Paul Greenberg, a podiatrist, testify about defendant's feet, knee and back, finding his 2014 report was not relevant because it did not address whether defendant's physical conditions in 2013, affected his ability to perform the roadside sobriety tests. In the Park Ridge case, defendant was sentenced to 180 days in jail, ninety days of which could be served at a treatment center. His driver's license was suspended for ten years, an 3 A-0095-15T4 interlock device was required and he was ordered to pay fines, penalties and costs. He was sentenced to twelve hours at IDRC. He was to perform thirty days of community service. This sentence was to be served consecutive to the Montvale sentence. A. The Montvale Case On August 30, 2013, at about 1:18 a.m., Montvale Police Sergeant Douglas McDowell was on patrol when he saw a car cross over the double centerline as it approached him, causing McDowell to steer to the right to avoid the car. He turned to follow the car. The driver went right at an intersection, turning so widely that the vehicle entered into the adjacent left hand turn lane. The driver then over-corrected going "really close to the curb line." The driver pulled into a bar/restaurant where McDowell stopped him and asked for identification. McDowell described that defendant "was fumbling the documents." He "passed over his driver's license . . . several times before he got it." His "speech was slow and slurred, . . . his eyes were bloodshot and watery." McDowell smelled alcohol on his breath. McDowell asked defendant to step out of his vehicle. He was "very . . . wobbly, unsteady." He held onto the door and side of the car. He was "swaying" and "lost his balance." 4 A-0095-15T4 McDowell asked defendant to perform the "walk-and-turn" and the "one-leg stance" tests. On the first test, he did not take the proper number of steps; he did not count out loud as he had been instructed; he had his arms out for balance, stepped backwards and did not walk in a straight line, failing the test. For the one leg-standing test, defendant miscounted and put his foot on the ground, failing that test. McDowell concluded that defendant was intoxicated. Once at the station, McDowell described that defendant's "eyes were bloodshot, watery, his speech was slow and slurred." Montvale Patrolman Jeffrey Hanna also observed that defendant's eyes were watery and bloodshot. He detected the odor of alcohol from defendant. He believed based on his observations and experience that defendant was intoxicated. On the Drinking Driving Questionnaire, defendant answered that he was not injured or under the care of a doctor. He admitted having three to four beers between 10:30 p.m. to midnight with a meal at 10 p.m. He did not say anything about physical problems. The Alcotest machine at the Montvale department did not work properly. Defendant was taken to Park Ridge Police Department for the test. Hanna observed defendant for twenty minutes, and commenced testing at 3:18 a.m. The first test was taken at 3:46 5 A-0095-15T4 a.m. The third was taken at 3:51 a.m. They both showed a reading of .15 percent BAC. The second test could not be used because the "minimum [breath] volume [was] not achieved." Hanna described the procedures, which involved inserting a new mouthpiece for the tests. The Montvale case was listed for trial on June 9, 2014. Defendant's expert witness, Kevin M. Flanigan, was not available until July. Just days before trial, defendant's counsel served an expert report from Dr. Richard Saferstein, to testify about the Alcotest. Because of a professional conflict with Dr. Saferstein, the municipal court judge disqualified himself sua sponte. In disqualifying himself, the municipal court judge stated: "You have made your bed, and now you're going to sleep in it . . . . While I will recuse myself, . . . I am also going to indicate within that order that the only expert that you can use in this matter is Dr. Saferstein [.]" The June 11, 2014 order also transferred the case for reassignment, providing that "the defense expert shall be none other than Richard Saferstein, Ph.D." The case was reassigned to another municipal court judge. A week before the October 23, 2014 trial, defendant served an expert report dated August 19, 2014 from Dr. Greenberg, a podiatrist. The report concluded that defendant's "gait evaluation" was 6 A-0095-15T4 "abnormal" because of bilateral heel spurs, bunions, shortened Achilles tendons, knee surgery, adhesions from hernia repair, loss of weight and tight shoes. Defendant was not able to perform the "one leg stand" and "walk and turn" tests when Dr. Greenberg examined him on August 13, 2014. At trial, no one could remember why the June 11, 2014 order appeared to limit defendant to one expert, and no transcript was available. The judge barred Dr. Greenberg's testimony based on the June 11, 2014 order. McDowell and Hanna testified at the trial to the facts involving defendant's arrest, field sobriety testing and Alcotest. Dr. Saferstein testified about the Alcotest. He alleged that Hanna did not testify directly about changing the mouthpiece before the third test. He also claimed the observation period had not been long enough. Defendant admitted having three beers with his meal. He testified that he swerved into the other lane because he was texting. He denied making a wide right turn at an intersection. He denied having difficulty retrieving his driver's license. He denied having any difficulty performing any of the field sobriety tests, but claimed he could not do them that day because of pain in his feet and legs. 7 A-0095-15T4 Defendant testified that he suffered from heel spurs that caused him "to hobble" and "can't really stay on [his] feet a long time." He had be treated with cortisone injections in the past, had left knee surgery in 2009 for a torn meniscus and had bilateral hernia surgery in 1998. He claimed he told McDowell at the scene that he was going to have difficulty performing the tests while wearing his shoes. The municipal court judge found the testimony of the two officers to be credible. He held that there was probable cause for the motor vehicle stop and arrest based on McDowell's observations. He rejected defendant's arguments attacking the reliability of the Alcotest, finding that the tests were administered properly. The municipal court judge convicted defendant of operating his vehicle on August 30, 2013, while intoxicated in violation of N.J.S.A. 39:4-50. B. The Park Ridge Case At 2:10 a.m. on September 13, 2013, Officer John Szot of the Park Ridge Police Department saw a vehicle make a left turn onto Pascack Road and accelerate very quickly "grabbing [his] attention." The driver made a right turn at a red light. The vehicle was moving quickly. Szot saw the vehicle make a wide turn 8 A-0095-15T4 onto another street. He turned on the siren and overhead lights, but the vehicle did not stop. The driver, later identified as defendant, put on his left directional signal, turned left, and then pulled into his driveway. Szot testified defendant had been driving over the posted speed limit, failed to stop at a red light and failed to keep right before making a wide turn. Defendant also failed to stop for the siren and lights. Defendant produced his driver's license at the officer's request. Szot detected a faint odor of alcohol coming from the vehicle, but a strong odor of cologne. Defendant was "sweating profusely." He "had bloodshot, watery eyes, his . . . movements were slow, lethargic, he was shaking a little bit because he . . . appeared to be nervous." He also was slurring his words. His face was "very flush." Defendant produced the requested registration but not his insurance card. Defendant was "fumbling" looking for the documents. Defendant told Szot he was coming from a friend's house. He denied having had any alcohol. Defendant could not satisfactorily recite the alphabet from D to Q; did not accurately count backwards from 69 to 54; and staggered as he got out of his vehicle. Szot again noticed an odor of alcohol as he conducted the field sobriety tests. Defendant did not tell Szot he would have 9 A-0095-15T4 any problem performing the tests because of a physical condition. Defendant did not successfully perform the heel-to-toe test, raising his arms for balance, stepping off the line, turning incorrectly and taking the wrong number of steps. He also did not count aloud as instructed. On the one-leg stand test, defendant raised his arms, put the other foot down, and swayed. Szot testified that based on his experience and observation, defendant was intoxicated and placed him under arrest. Once at the police station, Szot testified the "odor of an alcoholic beverage became more apparent." He observed defendant for a full twenty minutes beginning at 2:53 a.m. Defendant told Szot as they completed the in-custody screening form that he had surgery on his left knee and heel spurs on both feet. Sergeant Peter Mauro performed the Alcotest. He noted that defendant's eyes were "bloodshot and watery." He smelled an odor of alcohol on defendant's breath. Defendant was slurring his words. Mauro also concluded that defendant was intoxicated. Mauro entered defendant's "pedigree" information into the Alcotest machine and waited for the twenty-minute observation period to elapse. He checked to make sure everyone was free of electronic devices. He put a new mouthpiece on the hose for the first and second test. On cross-examination, he testified that 10 A-0095-15T4 the observation period commenced at 2:53 a.m. and the first test was completed at 3:13 a.m., although there may have been a discrepancy in the clocks that were used. Mauro could not access the computer to enter the readings "through the calculator," so he called an officer at the Montvale police department who ran the readings through the calculator and physically brought the results over to Mauro. The reading was .13 percent BAC. The municipal court judge "reaffirmed" his prior order of June 11, 2014, that barred expert witnesses other than Dr. Saferstein. Also, Flanigan was not available to testify about the Alcotest. The court concluded there was probable cause for the motor vehicle stop, denying defendant's motion to suppress the police videotape. The municipal court found Szot's testimony credible that he could not catch up to defendant and that "[defendant] was clearly going in excess of a speed that's required on a residential road" in the Borough. The municipal court judge found defendant guilty of DWI based on observation evidence from the police officers who he found to be credible. He rejected the Alcotest results, however, because there was reasonable doubt about whether the twenty-minute observation period had elapsed. 11 A-0095-15T4 C. Superior Court De Novo Review Defendant appealed the convictions under the process codified in Rule 3:23-1 to -9. On July 15, 2015, both convictions were heard de novo in the Law Division based on the municipal court record. See R. 3:23-8. The trial court found that Dr. Greenberg's report had been properly excluded because it was not served on the State until a week before the Montvale trial. Independent of this discovery violation the report also was "not relevant" because it never gave an opinion about whether defendant could have performed the field sobriety tests when he was arrested in in 2013. "There [was] nothing in the report that indicate[d] that the defendant [was] unable to perform these tests a year earlier." Further, Dr. Greenberg's testimony would have been limited to the "four corners of the report," meaning that he could not have offered an opinion at trial about defendant's abilities as of 2013. The Law Division found defendant guilty of DWI in the Montvale case based on the Alcotest result of .15 percent BAC and on observation evidence by the police. The judge deferred to the credibility findings of the municipal court judge. He also found the officers' testimony, observations, and opinions to be credible. The court found probable cause for the motor vehicle 12 A-0095-15T4 stop. The court rejected defendant's argument that the Alcotest was improperly administered. Although the testimony about changing the mouthpieces between the second and third tests was "sketchy," the court was satisfied from the transcripts that the officer changed the mouthpieces. The trial court found defendant guilty of DWI in the Park Ridge case based solely on the observation evidence. Reviewing the transcript de novo, the court found there was probable cause for the motor vehicle stop of defendant based on "violation of the motor vehicle laws." The court found the officer's testimony to be credible. Szot had to travel in excess of the posted speed limit to catch up with defendant; he observed defendant's failure to stop; and defendant did not stop despite the officer's siren and lights. The judge also denied defendant's motion to suppress the police video tape. The court reviewed Szot's testimony about defendant's odor of alcohol, his appearance, slow movements, flushed face and cognitive testing, finding that the officer "had a right to ask [defendant] to step out of the vehicle." The trial court convicted defendant based on observation evidence that was "beyond a reasonable doubt." The officer's testimony was corroborated by the video tape. The field sobriety 13 A-0095-15T4 tests were properly given. Defendant did not testify at trial. The court found defendant's failure to perform the sobriety tests resulted from being under the influence of alcohol and not from any medical or physical disability. Defendant also failed cognitive tests, noting there would be no physical reason for this. II. On appeal, defendant raises the following issues: POINT I APPELLANT WAS PRECLUDED FROM INTRODUCING EXPERT TESTIMONY IN VIOLATION OF HIS DUE PROCESS RIGHTS. A. The Lower Courts Misinterpreted and Overextended Judge Norton's Recusal Order. B. Dr. Greenberg's Testimony is Relevant. C. At a Minimum, Dr. Greenberg's Testimony was Subject to a Rule 104 Hearing. D. Dr. Greenberg's Preclusion was Related in Part to Ineffective Assistance of Counsel (Not Raised Below). POINT II THE OCTOBER 23, 2014 TRIAL COURT IMPROPERLY ADMITTED EVIDENCE PERTAINING TO THE ALCOTEST AS THE STATE FAILED TO PROVE THAT PROPER PROCEDURES WERE FOLLOWED. 14 A-0095-15T4 POINT III APPELLANT WAS IMPROPERLY STOPPED ON SEPTEMBER 13, 2013 AND COUNSEL SHOULD HAVE MADE AN APPROPRIATE MOTION TO DISMISS (Raised in Part Below). On appeal, we "consider only the action of the Law Division and not that of the municipal court." State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001) (citing State v. Joas, 34 N.J. 179, 184 (1961)). Under Rule 3:23-8(a)(2), the Law Division makes independent findings of fact and conclusions of law de novo, based on the record from the municipal court. See State v. States, 44 N.J. 285, 293 (1965). We determine "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). Our review of legal determinations is plenary. See State v. Handy, 206 N.J. 39, 45 (2011). We are satisfied that the State produced sufficient observation evidence in both cases to convict defendant of driving while under the influence beyond a reasonable doubt. The thrust of the Motor Vehicle Act is safety on the highway. N.J.S.A. 39:4-50(a) prohibits the operation of a motor vehicle under the influence of intoxicating liquor. The phrase "under the influence" means a substantial deterioration 15 A-0095-15T4 or diminution of the mental faculties or physical capabilities of a person. State v. Tamburro, 68 N.J. 414, 420 (1975). In a case involving intoxicating liquor, "under the influence" means a condition which so affects the judgment or control of a motor vehicle operator "as to make it improper for him to drive on the highway." State v. Johnson, 42 N.J. 146, 165 (1964). [State v. Cryan, 363 N.J. Super. 442, 455 (App. Div. 2003).] An officer's subjective observation of a defendant is a sufficient ground to sustain a DWI conviction. See Cryan, 363 N.J. Super. at 456-57 (sustaining DWI conviction based on observations of defendant's bloodshot eyes, hostility, and strong odor of alcohol); see also State v. Cleverley, 348 N.J. Super. 455, 465 (App. Div. 2002) (sustaining DWI conviction based on officer's observation of the defendant's driving without headlights, inability to perform field sobriety tests, combativeness, swaying, and detection of odor of alcohol on the defendant's breath); Oliveri, 336 N.J. Super. at 251-52 (sustaining DWI conviction based on officer's observations of watery eyes, slurred and slow speech, staggering, inability to perform field sobriety tests, and defendant's admission to drinking alcohol earlier in the day). In the Montvale case, the police officers testified about defendant's odor of alcohol, watery and blood shot eyes, and slow 16 A-0095-15T4 speech that was slurred. He was wobbly and unsteady. He failed the field sobriety tests in a number of ways, including not taking the proper number of steps and not counting out loud as instructed. He had driven over the center line and turned widely. In the Park Ridge case, the officers testified about defendant's odor of alcohol, particularly when he was at the station, that his speech was slow and slurred, eyes bloodshot and watery, and his face was flush. He fumbled for his documents. He staggered and took the wrong number of steps in the field sobriety tests that he failed. He could not recite the alphabet or count backwards properly. He had accelerated rapidly and turned wide. He had not stopped for the police officer's siren and lights. A defendant's demeanor, physical appearance, slurred speech, and bloodshot eyes, together with an odor of alcohol, are sufficient to sustain a DWI conviction. State v. Bealor, 187 N.J. 574, 588-89 (2006); State v. Morris, 262 N.J. Super. 413, 421-22 (App. Div. 1993). The Law Division judge did not err in finding that the observation evidence satisfied these standards beyond a reasonable doubt and in convicting defendant of driving while intoxicated, N.J.S.A. 39:4-50. We reject defendant's argument that there was no probable cause for the motor vehicle stop in Park Ridge on September 13, 17 A-0095-15T4 2013. "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 (2004) (alterations in original) (quoting Schneider v. Simonini, 163 N.J. 336, 361 (2000)). A police officer has justification to stop a motor vehicle where he has an "articulable and reasonable suspicion" that the driver has committed a motor vehicle offense. State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997). Here, the municipal court and Law Division judges found Szot's testimony to be credible. We defer to that finding. "Under the two-court rule, appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Locurto, 157 N.J at 474. Szot testified he saw defendant accelerate quickly, proceed through a red light, turn right, turn widely and fail to stop for the officer once his siren and lights were activated. Under the totality of the circumstances, these facts were enough for an objectively 18 A-0095-15T4 reasonable police officer to believe that defendant had committed a motor vehicle in violation. Any error with respect to not permitting Dr. Greenberg to testify was harmless in light of our decision here that the convictions are affirmed based on observation evidence. See State v. Castagna, 187 N.J. 293, 312 (2006) (quoting State v. Macon, 57 N.J. 325, 337-38 (1971)) (providing based on Rule 2:10-2 that "[w]e will disregard '[a]ny error or omission [by the court] . . . unless it is of such a nature as to have been clearly capable of producing an unjust result.'"). There was overwhelming observation evidence of defendant's guilt in both cases based on his driving, appearance, smell, behavior and cognitive inabilities. Defendant admitted he had been drinking in the Montvale case. Dr. Greenberg's testimony about defendant's physical condition would not have explained away any of the other evidence of intoxication. If there were errors by trial counsel, "[o]ur courts have expressed a general policy against entertaining ineffective- assistance of counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Castagna, 187 N.J. 293, 313 (2006), (quoting State v. Preciose, 129 N.J. 451, 460 (1992). 19 A-0095-15T4 Finally, we reject defendant's argument that the Alcotest procedures were flawed in the Montvale case. Defendant contends that there was no direct testimony that the officer removed cell phones and other devices before starting the test. The State bears the burden of proving compliance by clear and convincing evidence. State v. Campbell, 436 N.J. Super. 264, 270 (App. Div. 2014). However, the Court provided in Chun that "there is ample support for the finding that the Alcotest is well-shielded from the impact of any potential RFI that might otherwise affect the reported results or limit our confidence in the accuracy of the test results." State v. Chun, 194 N.J. 54, 89 (2008). We said in Carrero that "even if sources of RFI happened to be found in the testing area at the [police station] where [defendant's] blood- alcohol level was tested, those sources would not suffice to call into reasonable question the accuracy or validity of the Alcotest results for the purpose of a DWI prosecution." State v. Carrero, 428 N.J. Super. 495, 510 (App. Div. 2012), rev'd on other grounds, 225 N.J. 582 (2016). Defendant also contends there was no affirmative testimony by the officer that he put a new mouthpiece on the machine after the second test and before the third in the Montvale case. However, we agree that the record supported the trial court's 20 A-0095-15T4 finding that proper procedures were followed in the testing. The officer described the process. "You hit continue, and the defendant blows again. And the same process. Um, again, with a new mouthpiece, not the old one . . . ." He described the procedures in detail. The officer responded to the question "and that's what you remember doing" after he described this and other procedures, with the answer "I do remember doing that, yes." Based on the record, we have no basis to attack the findings of the Law Division judge that the Alcotest was properly performed. Thus, there also was independent credible evidence to convict defendant of DWI on a per se basis in the Montvale case. See N.J.S.A. 39:4-50. Defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Affirmed. 21 A-0095-15T4

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Docket No.: a0454-16
Decided: 2018-07-12
Caption: LARISSA TROFIMOVA v. IGOR TROFIMOV
Status: unpublished
Summary:
PER CURIAM Defendant Igor Trofimov and plaintiff Larissa Trofimova were divorced on September 19, 2016, by way of a final dual judgment. Defendant appeals virtually every financial aspect of the order. After our review of the record, the arguments on appeal, and the relevant precedents, we affirm in part, reverse and vacate in part, and remand. The parties married on October 24, 1981, and have one emancipated child. Plaintiff has a Master's Degree in Mathematics and Computer Science and is fully employed. However, the trial judge found she deferred the development of her own career when the couple relocated to advance defendant's career, first from Russia to Germany, and then to the United States. Defendant is, by his own account, a renowned scientist who "has advanced the science in his field." In 2012, the same year the parties separated, they entered into a separation agreement. Plaintiff filed a motion to enforce, which resulted in the court issuing two pendente lite orders on January 30, 2015. These orders enforced the separation agreement in which defendant assumed certain expenses, such as the cost of maintaining the marital home until sale. Defendant was ordered to pay outstanding payments to plaintiff of his health and car insurance. In March 2015, the parties participated in a mediation session, during which defendant paid $10,000 towards arrears and reimbursements on the January 30, 2015 order. Thereafter, on July 1, 2015, the parties entered into a consent order for pendente 2 A-0454-16T1 lite support totaling $1832 per month, payable through probation. Defendant agreed to produce outstanding discovery to forensic accountants, who had been retained to provide expert reports for both parties, and provide a personal property list. Defendant did neither. During the marriage, the parties acquired interests in various companies, pension and retirement plans, and other assets. Plaintiff has a 401(k) through her employer with a balance in excess of $212,000 and a separate IRA. Defendant only acknowledged one IRA, despite listing two on his February 2011 Case Information Statement (CIS). Defendant was not specific as to the amount in the one IRA he acknowledged. Defendant's share in a company he created with four friends, known as Akela Laser Corporation (Akela), was one of the assets subject to equitable distribution. Defendant is the Chief Technology Officer and owns a 28.57% ownership interest in the company; it is his main source of income. Plaintiff also initially held an interest in the company, but sold her shares for $6000 and deposited the proceeds into the parties' joint checking account. At trial, the court-appointed expert testified the fair market value of defendant's interest in Akela was $214,000. Plaintiff owns Princeton Technology Advisers Company (PTAC). At trial, defendant testified plaintiff could retain PTAC 3 A-0454-16T1 entirely. The court-appointed expert assessed PTAC's value at $133,000. In his August 31, 2016 post-trial findings of fact, the trial judge concluded plaintiff was credible and defendant was not. He found defendant incredible based on his demeanor and responses while testifying, and his lack of compliance with prior court orders. The judge described defendant as "cagey rather than forthcoming," and cited as an example defendant's reluctance to even disclose where he was living——New Jersey or California. Additionally, defendant "stonewalled the production of documents for examination by the accounting experts." As the judge observed, defendant claimed he signed the separation agreement, "only under duress and without reading it." The judge disbelieved this, given defendant's level of education, and the fact he was "used to reviewing contracts and grants." Defendant raises the following points on appeal: POINT ONE THE LOWER COURT ERRED WHEN IT FAILED TO REFERENCE, ANALYZE OR CONSIDER N.J.S.A. 2A:34- 23.1 FACTORS IN SUPPORT OF ITS AWARD OF EQUITABLE DISTRIBUTION FOR THE BUSINESSES, RETIREMENT ASSETS AND BANK ACCOUNTS (Absent from Dal-Da20).1 A. MARITAL BUSINESSES 1 Defendant failed to cite specific parts of the record in his point headings, as required by Rule 2:6-2(a)(6). Instead, defendant repeatedly notes "Absent from Dal-Da20." 4 A-0454-16T1 B. MARITAL FINANCIAL BANK ACCOUNTS C. RETIREMENT ACCOUNTS ACQUIRED DURING THE MARRIAGE POINT TWO THE LOWER COURT ERRED WHEN IT FAILED TO STATE FINDINGS OF FACT AND CONCLUSIONS OF LAW THROUGHOUT THE FINAL DUAL JUDGMENT OF DIVORCE (Absent from Dal-Da20). A. THE COURT ERRED WHEN IT ORDERED ESCROW OF PROCEEDS FROM THE SALE OF THE PARTIES' FORMER MARITAL HOME B. THE COURT ERRED WHEN IT ORDERED PTAC, AN ASSET FORMED DURING THE MARRIAGE, EXEMP[T] FROM EQUITABLE DISTRIBUTION C. THE LOWER COURT ERRED WHEN IT DENIED CREDIT OF MONIES [PLAINTIFF] SQUANDERED POST-SEPARATION D. THE LOWER COURT ERRED WHEN IT DENIED CREDIT OF MONIES [DEFENDANT] PAID PENDENTE LITE POINT THREE THE LOWER COURT ERRED WHEN IT FAILED TO STATE FINDINGS OF FACT, CONCLUSIONS OF LAW AND THE ISSUES ABSENT FROM THE RECORD OR ADDRESSED IN THE COURT'S OPINION LETTER (Absent from Dal- Da20). A. THE LOWER COURT ERRED WHEN IT ORDERED [DEFENDANT] TO MAINTAIN A LIFE INSURANCE POLICY FOR SIX (6) YEARS B. THE LOWER COURT ERRED WHEN IT ORDERED [DEFENDANT] TO PAY HIS SHARE OF EQUITABLE DISTRIBUTION BY WAY OF THE PROBATION DEPARTMENT OF THE FAMILY DIVISION 5 A-0454-16T1 C. THE LOWER COURT ERRED WHEN IT ORDERED [DEFENDANT] TO PAY 4% INTEREST RATE ON THE OUTSTANDING MONIES OWED ON THE EQUITABLE DISTRIBUTION AWARD D. THE LOWER COURT ERRED WHEN IT ORDERED [DEFENDANT] TO RELEASE LITIGATION DOCUMENTATION POST-DIVORCE POINT FOUR THE LOWER COURT ERRED WHEN IT FAILED TO REFERENCE, ANALYZE OR CONSIDER NEW JERSEY FACTORS IN SUPPORT OF ITS COUNSEL FEE AWARD (Absent from Dal-Da20). I. Appellate review of a trial court's decision is limited, as "findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). "[M]atrimonial courts possess special expertise in the field of domestic relations. . . . Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 412-13. "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." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (citing N.J. Div. of Youth & Family Servs. v. G.L., 6 A-0454-16T1 191 N.J. 596, 605 (2007)). Deference is extended to the family court's factual findings because of its ability to make first-hand credibility judgments. Ibid. "However, a judge's legal conclusions are subject to our plenary review." Milne v. Goldenberg, 428 N.J. Super. 184, 197-98 (App. Div. 2012) (citations omitted). The trial court has the discretion to allocate marital assets to the parties in matters of equitable distribution. La Sala v. La Sala, 335 N.J. Super. 1, 6 (App. Div. 2000) (citing Borodinsky v. Borodinsky, 162 N.J. Super. 437, 443-44 (App. Div. 1978); Jacobitti v. Jacobitti, 263 N.J. Super. 608, 613 (App. Div. 1993). On appeal, these decisions are reviewed, "to determine whether the court has abused its discretion." La Sala, 335 N.J. Super. at 6. "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, 428 N.J. Super. at 197 (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). We affirm equitable distribution awards "as long as the trial court could reasonably have reached its result from the evidence presented, and the award is not distorted by legal or factual mistake." La Sala, 335 N.J. Super. at 6 (citing Perkins v. 7 A-0454-16T1 Perkins, 159 N.J. Super. 243, 247-48 (App. Div. 1978)). The award will be affirmed even if we would not have made the same ruling as the trial court. Perkins, 159 N.J. Super. at 247-48. "Reversal is warranted only when a trial court's findings reflect a mistake must have been made because the factual findings are 'so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Clark v. Clark, 429 N.J. Super. 61, 70 (App. Div. 2012) (quoting Rova Farms Resort, Inc., 65 N.J. at 484 (quotation omitted)). N.J.S.A. 2A:34-23.1 specifies the factors that a court should consider when determining equitable distribution of marital assets. These include the duration of the marriage, the contribution each party made to the acquisition of assets, the standard of living, and the economic circumstances of each party at the time of the division of property. N.J.S.A. 2A:34-23.1(a), (c), (d), and (f). The statute requires judges to make findings of fact on the evidence relevant to the issues being decided. N.J.S.A. 2A:34-23.1 We do not agree the judge did not make adequate factual findings; he made such findings as to each asset. The court must first identify the property eligible for distribution, determine the value of those assets, and then decide the manner in which equitable allocation should be made. Rothman 8 A-0454-16T1 v. Rothman, 65 N.J. 219, 232 (1974). Each case must be examined on its own merits and facts. II. Defendant first challenges the trial court's equitable distribution of the parties' businesses, retirement assets, and bank accounts. The judge gave great weight to the thirty-three year length of the marriage. He acknowledged the parties' moves from Russia to Germany, and then to the United States——made to advance defendant's career——delayed the development of plaintiff's career. The judge's reliance on these factors is based on well- established precedent and demonstrates one example of the explicit fact-finding in which he engaged. In rendering his valuation of the parties' interest in their respective companies, the judge relied upon the opinion of a court- appointed accounting expert. With regard to PTAC, the judge found plaintiff was the sole owner of that $133,000 asset. The judge fixed plaintiff's share of Akela at forty percent of defendant's equity, or $85,600. We find no basis to disturb the judge's decisions with regard to these assets. In making such decisions, judges may rely on expert opinions at their discretion. See Carey v. Lovett, 132 N.J. 44, 64 (1993) (applying that principle to malpractice cases); see also Brown v. Brown, 348 N.J. Super. 466, 9 A-0454-16T1 478 (App. Div. 2002) (applying that principle to expert testimony on valuation issues). Review of equitable distribution is subject to abuse of discretion, and none has been demonstrated here. The judge's decisions are not "inexplicably departed from established policies, or rest[ing] on an impermissible basis." Milne, 428 N.J. Super. at 197 (quoting Flagg, 171 N.J. at 571 (quotation omitted)). The challenge to the equitable distribution of the marital estate lacks merit. Defendant also asserts he should have received a share of PTAC. In his trial testimony, however, defendant acknowledged plaintiff owned the company and said "[t]hat's her company, whatever she wants to do with it." Defendant had stopped working for the company years prior and did "not have time to work there." Defendant denied having an interest in PTAC when asked directly by the court. When asked if he wanted to be compensated through equitable distribution for his share, defendant responded "whatever they assessed the value, that's hers." Under these circumstances——where defendant explicitly abdicated any interest in PTAC——allocation of ownership solely to plaintiff was not an abuse of discretion. 10 A-0454-16T1 III. Defendant contends the judge erred when he ordered defendant's share of the proceeds from the sale of the marital home be held in escrow pending his satisfaction of equitable distribution and counsel fee obligations. It is obvious the judge did so based on defendant's unjustified failure to comply with prior orders and to respond fully and truthfully in the discovery process and trial of the matter. Since defendant had seemingly relocated to another state or intended to do so, the creation of a fund with which to make equitable distribution payments seems an exercise in ordinary prudence. It was not an abuse of discretion. Again, defendant refused to identify even his current state of residence or disclose plans to relocate. Perhaps if defendant had not repeatedly avoided giving such basic information, these measures would not have been necessary. IV. Defendant wanted to be credited $50,000 for funds plaintiff removed from the parties' joint bank account post-separation, and reimbursement for all pendente lite payments made to plaintiff pursuant to Mallamo v. Mallamo, 280 N.J. Super. 8 (App. Div. 1995). In this regard, the judge stated: There is no question that [plaintiff] used joint funds to maintain the household after [defendant] left in October 2012. She 11 A-0454-16T1 submitted a spreadsheet setting forth her disposition of the money from the joint account for joint housing expenses. It also appears that [defendant] used money from the joint account for his own personal expenses. While [defendant] should receive some credit for [plaintiff]'s use of funds from the joint account, . . . any credit is washed away by his failure to pay joint expenses or payments pursuant to the Separation Agreement and Court Order. Based on these findings, the judge properly denied defendant's request for reimbursement of the pendente lite support payments made. The court allocated the proceeds from the sale of the home equally, which supports the pendente lite award requiring defendant to pay half of the Schedule A "shelter" expenses. Importantly, the court based the pendente lite order on the parties' own separation agreement, where defendant explicitly agreed to pay half of the expenses for the house. Defendant acknowledges this agreement, but claims since plaintiff was not awarded alimony, and the contract is silent as to a refund, he is entitled to reimbursement under Mallamo. It is true "pendente lite support orders are subject to modification prior to entry of final judgment and at the time of entry of final judgment." Mallamo, 280 N.J. Super. at 12 (citations omitted). However, the fact that the court did not ultimately award alimony does not alone require a refund of 12 A-0454-16T1 pendente lite support paid. The pendente lite payments in this case were not alimony. The payments represented only fifty percent of plaintiff's Schedule A "shelter" expenses for the former marital residence which defendant agreed to pay in the separation agreement. V. Defendant makes a number of related arguments challenging the mechanisms chosen by the trial judge to enforce equitable distribution. The court's order that equitable distribution payments be made through the probation department was mistaken. The probation department has authority over matters involving only "alimony, maintenance or child support." See R. 5:4-7. We are uncertain as to the manner in which the language requiring defendant to maintain life insurance equivalent to the unpaid balance of equitable distribution was included in the final judgment of divorce. It is possible plaintiff's attorney added that clause without any objection being made by defendant's counsel. The judge then signed the final judgment as submitted without comment. We are unable to find any indication in the record that the provision was required by the judge, as opposed to simply being an add-on by counsel to guarantee payment. We leave resolution of that question to counsel. 13 A-0454-16T1 If the court did in fact order the maintenance of life insurance in order to ensure payment, the language can remain. See generally Claffey v. Claffey, 360 N.J. Super. 240 (App. Div. 2003). If the paragraph was included solely at plaintiff's counsel's initiative, albeit without objection by opposing counsel, it must be deleted from the final judgment and defendant is thus relieved of that obligation. The court ordered interest imposed on an annual basis if defendant decided to pay the minimum of $1800 a month by way of equitable distribution, as opposed to a lump sum satisfaction of the decree. The court did not abuse its discretion in doing so. The judge's comments regarding defendant's evasiveness, lack of cooperation with the discovery process, and lack of credibility adequately inform his decision to impose interest. See Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996) (requiring specified, articulate findings of fact and conclusions of law in court's decision, not naked conclusions). VI. Defendant challenges the judge's order that he provide plaintiff with the financial information and documentation regarding PTAC for the 2016 tax year so she can file her 2016 income tax return. At that time, only defendant was employed by the company and had access to the company's records. 14 A-0454-16T1 Defendant's delay in supplying the necessary documents meant plaintiff was unable to file her return. The nature of the documentation is clearly spelled out. This argument requires no further discussion in a written opinion. VII. Defendant objects to the court's imposition of a counsel fee obligation. The judge made a forty percent across-the-board award, resulting in a $31,488.10 obligation. Although the judge did not specify the factors he considered pursuant to Rule 5:3-5(c), the discussion throughout the opinion made clear he had those very factors in mind. The court's obligation is to consider the factors, not mechanically reiterate them. R. 5:3-5(c). The judge did find the requested fees to be "fair and reasonable," and that much work was required due to the "recalcitrance of [defendant]." Plaintiff faced substantial difficulties in attempting to enforce the separation agreement, enforce subsequent court orders, and prepare for the final hearing. A forty percent award was therefore appropriate. An award of counsel fees rests in the discretion of the court. Williams v. Williams, 59 N.J. 229, 233 (1971). The court must consider the factors established under N.J.S.A. 2A:34-23, Rule 5:3-5(c), Rule 4:42-9, and RPC 1.5(a). We find that the judge's decision was adequately informed by those factors. 15 A-0454-16T1 Affirmed in part, but reversed as to the requirement that equitable distribution payments be made through the probation department. The life insurance question must be resolved by counsel, and if no agreement is reached on the point, it should be submitted to the trial judge for disposition. Affirmed in part, reversed and vacated in part, and remanded. 16 A-0454-16T1

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Docket No.: a1096-17
Decided: 2018-07-12
Caption: ALAN MARCUS v. DENNIS MCNERNEY
Status: unpublished
Summary:
PER CURIAM Plaintiffs Alan Marcus and The Marcus Group, Inc. filed suit against defendants Dennis McNerney and Cathy McNerney (husband and wife) for comments they posted on the PolitickerNJ.com website (PolitickerNJ) that were allegedly defamatory, an invasion of privacy – false light, and in violation of the Computer Related Offenses Act (CROA), N.J.S.A. 2A:38A to -6. We granted plaintiffs leave to appeal the trial court's grant of partial summary judgment to defendants dismissing all CROA claims. We conclude that, as a matter of law, the postings do not fall within the protections of CROA, and, therefore, we affirm. I Marcus – active in New Jersey politics since the 1960's and having served in leadership positions in the Bergen County Republican Committee – is the Chief Executive Officer and sole owner of The Marcus Group, Inc., which offers lobbying, strategic counseling, advertising, public relations and crisis management services to private and public entities. In 2010, Marcus was an advisor to Kathleen Donovan, the Republican candidate for the 2 A-1096-17T1 office of Bergen County Executive, who defeated McNerney,1 the two-term incumbent. After the election, Marcus served as Chairman of Donovan's transition team. In the ensuing years, Marcus' role and influence in the county government came under scrutiny by the Bergen County Board of Chosen Freeholders and the media, as well as the United States Attorney's Office, which investigated a public relations contract awarded to The Marcus Group by Bergen County Community College. Pertinent to this appeal, plaintiffs sued McNerney claiming that leading up to Donovan's successful 2014 re-election campaign, McNerney, in his name and using fictitious identities, posted scores of defamatory comments on PolitickerNJ accusing Marcus of fraud, blackmail, corruption, and exchanging "sex for contracts," to scandalize Marcus and to defeat Donovan. Contending PolitickerNJ required its invited users to agree not to post: "defamatory, abusive, threatening or harassing speech; personal attacks of any kind of any kind[;]. . . content that is untrue, inaccurate, deliberately, misleading, or trade libelous, . . . [or] creat[e] a misleading screen name that misrepresents the poster's identity in an identifiable fashion," plaintiffs asserted 1 All references to "McNerney" are to Dennis since Cathy was dismissed as a party and is not involved in this appeal. 3 A-1096-17T1 that under the CROA they were entitled to damages. Relying upon N.J.S.A. 2A:38A-3(c), plaintiffs claimed they were financially damaged because McNerney's posts were a "purposeful or knowing, and unauthorized access[] or attempt to access any computer, computer system or computer network." In granting partial summary judgment dismissing the CROA claims, Judge John D. O'Dwyer issued a written rider to his order stating that viewing the allegations in the light most favorable to plaintiffs, McNerney's postings on PolitickerNJ did "not constitute purposeful and knowing conduct as contemplated by CROA."2 The judge explained the posts did not violate the CROA because they "did not purposefully and knowingly access the website's computer network in an unauthorized manner." II When reviewing an order granting summary judgment, we apply "the same standard governing the trial court." Oyola v. Xing Lan Liu, 431 N.J. Super. 493, 497 (App. Div. 2013). A court should grant summary judgment when the record reveals "no genuine issue 2 Judge O'Dwyer also ruled that Marcus was a public figure who must establish by clear and convincing evidence that any posting must be done with malice; that some of the alleged defamatory statements as barred by the one-year statute of limitations under N.J.S.A. 2A:14-3; that all claims against Cathy are dismissed because she had no involvement with the postings. We do not address these rulings because the leave to appeal was limited to the alleged violations of the CROA. 4 A-1096-17T1 as to any material fact" and "the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). We accord no deference to the trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (citations omitted). Guided by these standards, we are convinced that the judge properly interpreted the CROA in his dismissal of plaintiff's CROA claims. The CROA provides: A person or enterprise damaged in business or property as a result of any of the following actions may sue the actor therefor in the Superior Court and may recover compensatory and punitive damages and the cost of the suit, including a reasonable attorney's fee, costs of investigation and litigation: a. The purposeful or knowing, and unauthorized altering, damaging, taking or destruction of any data, data base, computer program, computer software or computer equipment existing internally or externally to a computer, computer system or computer network; b. The purposeful or knowing, and unauthorized altering, damaging, taking or destroying of a computer, computer system or computer network; c. The purposeful or knowing, and unauthorized accessing or attempt to access any computer, computer system or computer network; d. The purposeful or knowing, and unauthorized altering, accessing, tampering with, obtaining, intercepting, damaging or destroying of a financial instrument; or e. The purposeful or knowing accessing and reckless altering, damaging, destroying or obtaining of any data, data base, computer, 5 A-1096-17T1 computer program, computer software, computer equipment, computer system or computer network. [N.J.S.A. 2A:38A-3] Plaintiffs argued that McNerney knowingly posted comments on PolitickerNJ thereby engaging in an "unauthorized access" and "unauthorized altering" of the website's computers prohibited by the CROA. To support their vision of the CROA, plaintiffs rely upon Fairway Dodge v. Decker Dodge, 191 N.J. 460, 464 (2007), where our Supreme Court held that the defendant was liable in using his employer's computer in an unauthorized manner to copy customer lists for a competitor. Plaintiffs argue that the Court's statutory interpretation of the "unauthorized" element of the CROA in Fairway Dodge, equates to McNerney's use of PolitickerNJ in a manner expressly prohibited by the website, thereby causing damage to a plaintiff. Thus, they contend that their CROA claims should not have been summarily dismissed. We conclude that plaintiff's overly broad interpretation of the CROA distorts the statute's clear meaning and is therefore incorrect. Our rules of statutory construction are well known. "It is a basic rule of statutory construction to ascribe to plain language its ordinary meaning." Bridgewater-Raritan Educ. Ass'n v. Bd. of Educ. of Bridgewater-Raritan Sch. Dist., Somerset Cty., 6 A-1096-17T1 221 N.J. 349, 361 (2015) (citing D'Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110, 119-20 (2007)). It is a primary purpose of a court to "seek to effectuate the 'fundamental purpose for which the legislation was enacted.'" Twp. of Pennsauken v. Schad, 160 N.J. 156, 170 (1999) (quoting N. J. Builders, Owners & Managers Ass'n v. Blair, 60 N.J. 330, 338 (1972)). Yet, "[w]hen all is said and done, the matter of statutory construction . . . will not justly turn on literalisms, technisms or the so-called formal rules of interpretation; it will justly turn on the breadth of the objectives of the legislation and the commonsense of the situation." Jersey City Chapter, P.O.P.A. v. Jersey City, 55 N.J. 86, 100 (1969). Clearly, the CROA's plain language provides a civil remedy for a person or entity whose business or property is damaged by someone who knowingly gains, or attempts to gain, unauthorized access, tampering or destruction to the person's or entity's computer system. There is no doubt that McNerney did not access, tamper, or destroy plaintiffs' computer system; his posts were on PolitickerNJ, which, based on the record before us, has not objected to them. Accordingly, plaintiffs' reliance on Fairway Dodge is misplaced. There, the Court concluded no CROA violation occurred where there was no evidence that two of the named defendants "acted purposefully or knowingly" in accessing 7 A-1096-17T1 plaintiff's computer to obtain information. Fairway Dodge, 191 N.J. at 469-70. However, two other named defendants who admitted to accessing plaintiff's computer without authorization were liable under the CROA. Id. at 464. Thus, the CROA violations in Fairway, which involved the defendants' unauthorized access to the plaintiff's computer, is not the situation presented here. McNerney, like others viewing PolitickerNJ, was invited to post comments on the website regarding his thoughts and opinions. Even agreeing with plaintiffs – as Judge O'Dwyer did – that some of McNerney's posts violated PolitickerNJ's user requirements prohibiting comments that are defamatory, abusive, threatening, personal attacks, untrue, inaccurate, or misleading, the CROA does not apply to their contentions. Contrary to plaintiffs' argument, PolitickerNJ's user guidelines do not define what is prohibited under the CROA, the statute's language does. We thus agree with McNerney that under plaintiff's reading of the CROA, every breach of a social media outlet's user requirements could be used to invoke the CROA. There is nothing in the statute's plain language that calls for such an inaccurate and distorted interpretation. Accordingly, McNerney posts concerning Marcus on PolitickerNJ did not violate the CROA. Affirmed. 8 A-1096-17T1

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Docket No.: a1438-15
Decided: 2018-07-12
Caption: STATE OF NEW JERSEY v. THERESA WILLIAMS
Status: unpublished
Summary:
PER CURIAM Defendant Theresa Williams appeals from the trial court's order denying her motion to withdraw her plea. This is our third occasion to review defendant's case. Defendant entered a guilty plea on April 4, 2011 to second-degree attempted extortion; and on June 3, 2011, was sentenced in accordance with the plea agreement to a downgraded sentence of three years. The court denied her motion to withdraw her plea on October 22, 2015. We affirm. I. In her direct appeal, we rejected defendant's sole point that her attorney provided ineffective assistance of counsel; we concluded defendant should have first raised the claim in a petition for post-conviction relief in the trial court. State v. Williams, No. A-5505-10 (App. Div. June 20, 2013) (slip op. at 5) (Williams I). However, we sua sponte remanded for reconsideration of the sentence, because the trial court failed to justify the downgraded sentence in compliance with N.J.S.A. 2C:44-1(f)(2) and State v. Moore, 377 N.J. Super. 445, 450 (App Div. 2005). Williams I, slip op. at 6-7. After our initial remand, the court adhered to its sentence. We thereafter affirmed the sentence, concluding the court made appropriate findings essential to justify the downgrade in accordance with N.J.S.A. 2C:44-1(f)(2). State v. Williams, No. 2 A-1438-15T2 A-0834-13 (App. Div. Dec. 5, 2014) (slip op. at 11-12) (Williams II). But, we remanded for the court to consider defendant's motion to withdraw her guilty plea, which she filed on August 1, 2013, the day of the court's sentencing hearing on remand. Id. at 12. Although the trial court appropriately declined to hear the withdrawal motion on that day, we held the court should have considered it at a later time, after giving the State an appropriate opportunity to respond. Id. at 12-13. The subsequent proceedings in the trial court pertained to defendant's motion to withdraw. In her plea allocution in 2011, defendant admitted that in December 2010, she attempted to extort "money or property" from an elderly widow by threatening to disclose a tape recording depicting the widow's late husband engaged in sexual relations with defendant. She testified she participated in the extortion scheme with a codefendant, Ryan Persaud. She agreed she participated in telephone and in-person contacts with the victim. In addition to her signed plea forms, defendant signed a guilty plea stipulation, stating that she attempted to obtain money from the widow by threatening to disclose an embarrassing recording. She did not deny her participation in the crime in her presentence interview. Rather, the presentence report states, "When asked if there were any factors contributing to the 3 A-1438-15T2 commission of the instant offense[,] the defendant stated that while he was still alive, [the husband] told her to do it and made a voice recording of himself saying he wanted her to have the money." At her sentencing hearing, she expressed remorse, both in a handwritten letter to the court, and orally, specifically admitting that she made the explicit tape recording. Defendant, an undocumented immigrant from Guyana, maintained to the court before that initial sentencing, that she was employed for many years by the widow and her late husband as a household worker, and that the husband sexually abused and exploited her as a teenager. She asserted that the man ultimately regretted his years of abuse. While suffering from a terminal illness, he suggested that she seek the payment from his widow. After our first remand, the trial court credited defendant's claim that she had been promised the money. The trial court noted that the "interest of justice" prong of N.J.S.A. 2C:44-1(f)(2) was met, in view of defendant's contention that the widow's late husband had suggested that she seek money from his widow. The court concluded that defendant may have had a sense, albeit misdirected, that she was entitled to the funds. According to the State's version of the crime, Persaud initially approached the widow at her home in Bergen County, 4 A-1438-15T2 accompanied by a woman other than defendant. The victim notified the police. With her consent, police recorded subsequent telephone conversations in which Persaud threatened the widow that he would disclose an embarrassing tape if she did not pay $500,000. She offered to make an initial payment of $75,000 at a meeting at her home. Police surveilled the area the day of the meeting. They observed defendant in the vehicle with Persaud and a driver. However, Persaud aborted the meeting after the victim refused to meet him outside her house, insisting instead that he come inside (where she was accompanied by police). Meanwhile, defendant left the vehicle and headed on foot to a bus stop. Persaud attempted to drive away. Police arrested all three. Persaud gave a statement admitting to the scheme, stating that defendant provided him with the sexually explicit videotapes; identified the widow to him; and provided him with her telephone number and address. Six months after her sentencing, defendant executed an affidavit professing her innocence, which was prepared in support of her ineffective assistance of counsel claim raised on direct appeal. The affidavit was then submitted to the court in support of the motion to withdraw her guilty plea ultimately heard in 2015. 5 A-1438-15T2 Defendant claimed that her own abusive father sent her to the United States in 1995, when she was about thirteen years old, to work as a housecleaner under the supervision of her aunt. She began working for the Bergen County couple shortly thereafter. Sexually victimized by her aunt's husband, she left her aunt and lived with a family friend, while continuing to work for the Bergen County couple, whom she considered something of surrogate parents. However, the husband began to engage in sexual relations with her, which she did not feel empowered to refuse or report. She claimed that he also videotaped the encounters, starting when she was fifteen years old. Her employment, and the encounters, continued until 2004, but for one last sexual encounter with the husband in 2007, more than ten years after the first. She claimed the encounter was taped. Then, after another period of sparse contact, the man met her for the last time in 2010 to tell her that he was terminally ill. He apologized for the pain he had caused her. He gave her "two cds, two audio recorders, and a small digital camera." She claimed that in one recording the man expressed his wish that she receive $500,000 from his wife after his death. A second recording advised defendant that she was to request the money from his wife. The man allegedly instructed defendant to give the cds to his neighbors if his wife refused. Defendant said the recordings included 6 A-1438-15T2 instances of abuse when she was fifteen, and three later incidents, including the last one in 2007. Defendant claimed she gave the recordings to Persaud only for safe-keeping, because she was afraid her then-fiancé would discover them, and she had not decided what to do with the recordings. After the elderly man died, defendant claimed Persaud told her that he had viewed the tapes, and urged her to let the widow know about them. Defendant said she refused, and claimed she did not speak to Persaud again about the videos. Defendant provided an alternative explanation for Persaud's two visits to the widow's home. In the first, she claimed that she only intended to introduce Persaud to the widow to ask her for work for Persaud and his woman companion. (The husband had owned a real estate company.) However, defendant asked to be dropped off at a nearby park, rather than face the widow, because the thought of seeing her, or returning to the home, sickened defendant. She claimed she was unaware that Persaud attempted to extort money from the widow. The day of the arrests, defendant claimed she accompanied Persaud to the couple's Bergen County town to scout out locations for a store Persaud hoped to open. Defendant eventually realized that Persaud was heading toward the couple's home. She asked Persaud to explain what he was doing. He said that he had been 7 A-1438-15T2 speaking with the widow and she was ready to give him the money that her husband had promised defendant. He claimed to have all the tapes, to exchange for the money. Defendant claimed she grabbed the recorders and cds, left the car and walked to a bus stop, intending to return to Queens, where she lived. A few minutes later, she refused Persaud's offer for a ride back to New York. She was arrested soon thereafter. She claimed she had the recorders and cds in her possession, although the police later reported they seized them from Persaud. Defendant blamed her attorney for her decision to plead guilty, rather than go to trial. In her December 2011 affidavit, she said her attorney disbelieved her; he told her the tapes did not substantiate her claims; and he misinformed her about the immigration consequences of her plea. He told her she would serve less than a year on a three year sentence. Defendant claimed, "Not knowing any better and fearful of remaining in prison for ten years, I agreed to follow my lawyer's advice." She added that she was "distraught, scared and lost" while she awaited sentencing. She later discovered, in immigration proceedings, that her conviction would likely lead to her removal. In an additional certification, executed in August 2015, defendant described the contents of the two recorders, two cds, and camera. She maintained that in one recording, the widow's 8 A-1438-15T2 husband expressed his desire that she receive $500,000 after his death, and apologized for what he and his wife had done to her. Neither the recordings, nor transcripts of their contents, are before us. Instead, defendant has provided photographic images of the devices and a disc, with the notation that it is blank. II. The court found that defendant had knowingly, voluntarily and intelligently entered her guilty plea, as required by Rule 3:9-2. In assessing defendant's motion to withdraw her plea, the trial court applied the four factors prescribed in State v. Slater, 198 N.J. 145 (2009): (1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant's reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused. [Id. at 157-58.] With respect to the first factor, the court held that defendant failed to present specific, credible facts proving her innocence. The court noted that defendant was Persaud's undisputed source for the recordings, and the victim's name, address and telephone number. "The defendant's claim that she was attempting 9 A-1438-15T2 to make introductions for job opportunities, or scout out store locations, simply does not ring true, especially in light of the extortion attempt and the defendant's view that she was promised and owed money from [the husband]." The court also found incredible defendant's claim she gave the recordings to Persaud because he was a "trusted friend." The court noted that defendant's admissions in her plea stipulation, sentencing letter of apology, and plea form directly contradicted her claim of innocence. The court also rejected defendant's claimed reasons for withdrawing her guilty plea. Defendant had submitted mental health reports from when she was incarcerated, noting that she was depressed and had difficulty coping with imprisonment; and an evaluation prepared in 2012, concluding she suffered from post- traumatic stress disorder. The court rejected the argument that mental health conditions prompted her to plead guilty despite her innocence. The court noted that defendant denied suffering from any mental health disorder in her presentence interview, and she affirmed during her plea colloquy that nothing impaired her ability to enter her guilty plea. The court recognized "the seriousness and profound impact of sexual abuse," but noted that defendant never formally complained to authorities about the alleged abuse. The court observed that defendant had raised her claim when she 10 A-1438-15T2 faced deportation and sought a money judgment against the husband's estate. The court recognized that defendant entered into a plea bargain. Citing State v. Munroe, 210 N.J. 429, 443 (2012), the court acknowledged that the factor is given the least weight, but should not be discounted entirely. Lastly, the court found that the State would suffer prejudice if forced to try the case so many years later. The court noted that the widow had been diagnosed with Alzheimer's disease. During oral argument, the prosecutor asserted that fact, and invited the court to review transcripts of the victim's most recent deposition taken in the civil action defendant apparently filed against the husband's estate. The court concluded that defendant failed to demonstrate that allowing her to withdraw her plea would serve the interest of justice, or was necessary to correct a manifest injustice. On appeal, defendant presents one point for our consideration: POINT ONE [DEFENDANT]'S GUILTY PLEA IS REQUIRED UNDER THE LAW TO BE WITHDRAWN AND THE CONVICTION VACATED. 11 A-1438-15T2 III. A. We will disturb a trial court's decision on a motion to withdraw a guilty plea when it is "clearly erroneous," State v. Simon, 161 N.J. 416, 444 (1999), or the trial court exercised a "clear error of judgment," Munroe, 210 N.J. at 448 (quoting State v. Koedatich, 112 N.J. 225, 313 (1988)). "A denial of a motion to vacate a plea is 'clearly erroneous' if the evidence presented on the motion, considered in light of the controlling legal standards, warrants a grant of that relief." State v. Mustaro, 411 N.J. Super. 91, 99 (App. Div. 2009); see also State v. O'Donnell, 435 N.J. Super. 351, 372 (App Div. 2014). The defendant bears the burden of establishing a basis for relief. Slater, 198 N.J. at 156 (noting that a defendant's representations in entering a guilty plea "create a 'formidable barrier' the defendant must overcome") (quoting Blackledge v. Allison, 431 U.S. 63, 74 (1977)). The four Slater factors apply, whether a defendant seeks to withdraw a plea before or after sentencing. Id. at 158. But, "[t]iming matters." Id. at 160. After sentencing, a court may permit a defendant to withdraw a plea only "to correct a manifest injustice." R. 3:21-1. The motion "must be substantiated by strong, compelling reasons." Slater, 198 N.J. at 160. 12 A-1438-15T2 That heavier "burden[] of proof" requires a different "weighing and balancing process . . . ." Id. at 158. Post- sentencing, "'the court weighs more heavily the State's interest in finality and applies a more stringent standard' than that which is applied to a withdrawal application made before sentencing has occurred." State v. Johnson, 182 N.J. 232, 237 (2005) (quoting State v. McQuaid, 147 N.J. 464, 487 (1997)); see also Munroe, 210 N.J. at 441 (stating "the interest in finality is greater after sentence and entry of a judgment of conviction, and thus the standard for withdrawing a guilty plea is more onerous"). "[T]he longer a defendant delays in seeking to withdraw a plea, the greater burden he or she will bear in establishing 'manifest injustice,' because the prejudice to the State under [factor] four will generally increase. Moreover, a defendant's reasons for delay may also weigh against relief under factor two." O'Donnell, 435 N.J. Super. at 370; see Slater, 198 N.J. at 160 (stating that "[i]n general, the longer the delay in raising a reason for withdrawal, or asserting one's innocence, the greater the level of scrutiny needed to evaluate the claim"). B. Defendant's challenge to the court's application of the "colorable claim of innocence" factor warrants our most in-depth discussion. We begin with a review of the governing principles. 13 A-1438-15T2 "A core concern underlying motions to withdraw guilty pleas is to correct the injustice of depriving innocent people of their liberty." Id. at 158. "A bare assertion of innocence is insufficient to justify withdrawal of a plea. Defendants must present specific, credible facts and, where possible, point to facts in the record that buttress their claim." Ibid. "[T]he evidence presented in support of the claim of innocence must be specific and raise a legitimate dispute for the jury, but need not clearly exonerate the defendant." State v. Lipa, 219 N.J. 323, 334 (2014). Put another way: "A colorable claim of innocence is one that rests on 'particular, plausible facts' that, if proven in court, would lead a reasonable factfinder to determine the claim is meritorious." Munroe, 210 N.J. at 442 (quoting Slater, 198 N.J. at 158-59). In considering the "colorable claim of innocence" factor, the trial court must not usurp the function of a jury. "[T]he motion judge need not be convinced that [a defendant's innocence claim] is a winning argument because, in the end, legitimate factual disputes must be resolved by the jury." Munroe, 210 N.J. at 442; see also Lipa, 219 N.J. at 333-34. However, the trial judge must still distinguish between "a colorable claim of innocence" and a "bald assertion." Id. at 334. Doing so requires a judge to engage 14 A-1438-15T2 in some weighing of evidence to determine whether facts are "credible" or "plausible." Id. at 333-34. "[C]ourts may look to 'evidence that was available to the prosecutor and to the defendant through our discovery practices at the time the defendant entered the plea of guilt.'" Slater, 198 N.J. at 158-59 (quoting State v. Smullen, 118 N.J. 408, 418 (1990)). "Although the State is not obligated to offer any evidence at a motion to withdraw," it may do so to "undermine the colorable nature" of a defendant's claim of innocence. Id. at 163. On the other hand, a court may consider the State's failure to offer evidence that belies a defendant's claim. Ibid. (noting the State's failure to offer evidence to contradict the defendant's claim that he did not rent a motel room where drugs were found); Munroe, 210 N.J. at 445 (considering the State's failure to offer witness statements contradicting the defendant's claim he could not retreat from a knife-wielding victim). In Slater, Munroe, and Lipa, the defendants sought to withdraw their guilty pleas before sentencing. In each case, the Court found that the trial court erred in denying the motion. In Slater, the defendant pleaded guilty to possession with the intent to distribute cocaine after police discovered the drugs and a scale in a motel room he occupied. 198 N.J. at 151. Slater admitted in his plea colloquy that he was "going to sell or share some" of 15 A-1438-15T2 the drugs. Id. at 152. Less than two weeks later, before sentencing, Slater sought to withdraw his plea, contending that he had not rented the motel room; he was just visiting; he was unaware the drugs were in the room; and the drugs did not belong to him. Id. at 152-53. Slater's story was supported by the record evidence that the police approached the motel room in search of two white men who allegedly possessed cocaine; but, Slater was African-American. Id. at 151-52, 163. Also, the State failed to disprove Slater's claim that he did not rent the room and was only visiting. Id. at 163. Applying Slater, the Court in Munroe held that the defendant, who pleaded guilty to aggravated manslaughter, presented a colorable claim of innocence in his presentence motion to withdraw his plea. 210 N.J. at 446-47. The defendant supported a self- defense claim with evidence that the victim threatened him with a knife, and a parked car blocked the defendant's retreat. Id. at 445. A police report confirmed the deceased victim was found with a box cutter in his hand. Id. at 447. The State presented no witness statements contradicting Munroe's claim he had no room to retreat. Id. at 445-46. Munroe's admission in his initial plea colloquy that he shot the victim at close range was not inconsistent with his later claim of self-defense. Id. at 445. "[N]ot a word that defendant uttered in court during his plea 16 A-1438-15T2 colloquy was inconsistent with either the account he gave to the probation officer who prepared his presentence report or his sworn testimony when he moved to withdraw his guilty plea." Ibid.1 In Lipa, the defendant raised a colorable claim of innocence when he denied he sexually assaulted a victim three times. 219 N.J. at 326-28. He presented photographic evidence of a knee injury that, he claimed, made it impossible for him to climb into the victim's second-floor bedroom window, as she alleged. Id. at 333. The Court noted that the victim's assertion that Lipa was inebriated when he committed the offenses tended to undermine the claim that he had the physical capacity to commit the offense as described. Ibid. Lipa also presented evidence that the victim made allegedly false sexual assault claims against others in the past. Ibid. Unlike Munroe, however, Lipa's claim of innocence was factually inconsistent with his admissions during the plea colloquy, but the Court noted they were presented in answer to leading questions. Id. at 327. 1 Although the Court likened Munroe to Slater, Munroe's claim of innocence appears stronger. Munroe did not address his state of mind in his allocution, and his admission that he pulled the trigger that killed the victim was entirely consistent with his self-defense claim. On the other hand, Slater's claim of innocence was inconsistent with his admission that he possessed the cocaine with the intent to sell or share it. 17 A-1438-15T2 We draw from these cases the principle that a defendant may present a plausible claim of innocence, even if inconsistent with his or her prior admission of guilt. But, a claim of innocence is more likely to be deemed "colorable" if it does not directly, or completely contradict the factual admissions in the initial allocution of guilt. Evidence corroborating a defendant's claim of innocence supports the claim's plausibility, as does the State's failure to present evidence on easily verifiable facts that would undermine the defendant's claims. Turning to defendant's claim of innocence, she contends that the crime of attempt was never consummated because Persaud left the scene before transferring the tapes for the money, and defendant abandoned the vehicle and headed to a bus stop, allegedly with the recordings. Alternatively, she contends her actions constituted renunciation. She does not highlight her claim that she was unaware of Persaud's extortion scheme, or her explanation as to why she twice accompanied him to the town where the victim lived. We note at the outset that defendant does not expressly contend she failed to present an adequate factual basis under Rule 3:9-2. Rather, she seems to argue that the record evidence did not support her admission of guilt. 18 A-1438-15T2 We acknowledge that an adequate factual basis is a threshold determination, which precedes analysis of the Slater four-factor test for withdrawing a plea. See State v. Tate, 220 N.J. 393, 404-05 (2015). Defendant admitted that she and Persaud contacted the victim, by telephone and in person, seeking money from the victim in return for not disclosing a sexually explicit videotape that would cause the victim embarrassment. We are satisfied that defendant's allocution sufficiently established the elements of the offense of attempt to commit extortion. See N.J.S.A. 2C:20- 5(c) (stating a person commits theft by extortion if the person "purposefully and unlawfully obtains property of another by . . . purposely threaten[ing] to . . . [e]xpose or publicize any secret or any asserted fact, whether true or false, tending to subject any person to hatred, contempt or ridicule . . . .);2 N.J.S.A. 2C:5-1(a)(3) (stating a person is guilty of attempt if, acting with the required culpability, "does . . . anything which, under the circumstances as a reasonable person would believe them to be, 2 Notably, defendant does not raise the affirmative defense "that the property obtained was honestly claimed as restitution or indemnification for harm done in the circumstances or as lawful compensation for property or services." N.J.S.A. 2C:20-5. Despite her claim that the husband told her to release the tapes if his wife did not pay her, defendant contends she never followed through. 19 A-1438-15T2 is an act . . . constituting a substantial step in the course of conduct planned to culminate in [her] commission of the crime").3 We are unpersuaded by defendant's argument that the record demonstrates there was, in fact, no attempt. It is of no moment that money did not pass hands on the aborted second trip to the victim's home. Persaud's recorded conversations disclose an undeniable effort to extract $500,000 from the victim, by threatening to disclose embarrassing materials. Even if defendant did not appear with Persaud in his visit to the victim's home, or participate in the phone calls to the victim, she took substantial steps, by providing Persaud with the tapes and the victim's information, in the course of conduct designed to culminate in the extortion of $500,000 from the victim. We also reject defendant's claim that she presented a colorable claim of innocence by renouncing the scheme. She could renounce only if she had the requisite culpability in the first place. Renunciation applies only "[w]hen the actor's conduct would otherwise constitute an attempt under [N.J.S.A. 2C:5-1(a)(2) or (3)] . . . ." See N.J.S.A. 2C:5-1(d). To establish the affirmative defense, a defendant "must prove by a preponderance of the evidence that he [or she] abandoned his [or her] effort to 3 The indictment did not specify the relevant subsection of the attempt statute. But, subsection (a)(3) appears to apply. 20 A-1438-15T2 commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his [or her] criminal purpose." Ibid. Defendant contends in her December 2011 affidavit that she never intended to commit extortion. To establish a colorable claim of innocence after a plea of guilty, a defendant should surely present only one version of the facts. "Although a party may argue inconsistent principles of law, he [or she] cannot be heard . . . to contend for two diametrically opposed sets of facts." In re Estate of Perrone, 5 N.J. 514, 527 (1950). Even if we presume defendant only meant to argue that her actions foiled Persaud's plan of which she was previously unaware, she failed to establish a colorable claim of innocence. The facts essential to her claim of innocence are neither "credible" nor "plausible." The trial court fairly concluded that defendant's version of events simply did not ring true. Notably, defendant did not present the trial court with any competent evidence of the recordings' contents to verify her allegations. In any event, evidence that she was a victim of the husband's assaults – as reprehensible as that would be – does not prove her ignorance of Persaud's scheme. Moreover, there is no evidence – except her own 21 A-1438-15T2 say so – that she took the embarrassing materials when she left the car, in order to foil Persaud's plan. Defendant's contradictory assertions differ greatly from the claims the Court has deemed "colorable." The defendant in Munroe presented facts that supplemented the allocution of guilt, and constituted a defense. 210 N.J. at 445. By contrast, defendant has presented facts in her December 2011 affidavit that directly contradict the facts presented in her allocution, and presentencing statements. Lipa presented evidence that supported his claim of innocence – including photographs of his knee injury. 219 N.J. at 333. Defendant presents no comparable evidence to corroborate her claimed innocence. Rather, her admission of guilt is supported by the undisputed facts that she provided the tapes to Persaud and accompanied him on two trips to the victim's town. Significantly, defendant filed her motion after sentencing, when the burden is heavier. In sum, we agree with the trial court that defendant failed to present a colorable claim of innocence. This factor disfavors permitting defendant to withdraw her plea. C. Defendant's challenge to the court's analysis of factors two, three and four, does not warrant an equally extended discussion. Factor two requires a court to consider "whether defendant has 22 A-1438-15T2 presented fair and just reasons for withdrawal, and whether those reasons have any force." Slater, 198 N.J. at 159. Defendant contends her attorney was ineffective by failing to review discovery materials and misinforming her about the immigration consequences of her plea. However, the discovery materials, even if they contained all that defendant alleges, would, at most, have established that she was a victim of the husband's exploitation. It would not have established her claim that she was ignorant of Persaud's scheme, and did not participate in it. Indeed, her claim that the husband actually advised her to disseminate the tapes to neighbors if his wife did not pay her, would seem to support the State's case that she actually attempted to follow his directions. As for the claim that her plea counsel mistakenly advised her about the immigration consequences of her plea, we previously noted: [I]n her plea hearing, the judge elicited defendant's acknowledgement that "as a result of your guilty plea . . . you will be subject to [a] deportation proceeding[.]" Defendant also signed a form, in addition to the plea form promulgated pursuant to Directive #14- 08, advising her that "there is a substantial likelihood that you will be deported, and your deportation should not be a surprise, but should be anticipated as a result of this guilty plea." [Williams I, slip op. at 3 n.1.] 23 A-1438-15T2 Lastly with respect to factor two, defendant contends that she pleaded guilty because she was suffering from the emotional and psychological effects of years of abuse. She has presented evidence that she was despondent and depressed while incarcerated. Yet, she has presented no compelling evidence that any emotional or psychological condition led her to plead guilty, as opposed to maintain her innocence of the charges against her. In sum, defendant has failed to present compelling reasons for withdrawing her plea on that basis. Turning to factor three, the trial court acknowledged the existence of a plea bargain is generally not "given great weight in the balancing process." See Slater, 198 N.J. at 161. Yet, the interests in finality, which must be balanced against a defendant's interest in withdrawing a plea, are shared not only by the State, but by the crime victim. "The victims of an offense also have an obvious interest in the finality of criminal proceedings." Id. at 155. The plea bargain here not only saved the State from the burden of a trial; it shielded the victim from the emotional turmoil of testifying at such a trial, and the embarrassment of a public trial, whether she testified or not. The revival of these issues, long after the case was apparently resolved, exacts an even greater 24 A-1438-15T2 toll on the victim, than if the defendant had insisted upon a trial in the first place. Just as "[c]ourts taking pleas are undoubtedly conscious of the need to end the suffering" of child- sexual-assault victims, see Smullen, 118 N.J. at 418, the court must be conscious of the need to end the suffering of the victim in this sexually-tinged extortion case. This factor weighs against granting defendant's motion to withdraw her plea. Lastly, we discern no error in the court's determination that the State would suffer prejudice if forced to try this case many years after the events. See Slater, 198 N.J. at 161 (factor four). The trial court accepted the assistant prosecutor's representation that the victim, who was then ninety years old, had Alzheimer's disease. We recognize that the State did not present competent evidence of the victim's medical condition. The assistant prosecutor merely contended that indications of the victim's disability would be evident in her recent deposition. On the other hand, defendant bore the burden to establish grounds for her withdrawal. She has not attempted to contest the assistant prosecutor's point by providing us with the victim's deposition transcript. In sum, we discern no abuse of discretion in the court's analysis of the Slater factors, and its denial of defendant's post-sentence motion to withdraw her plea. To the extent not 25 A-1438-15T2 addressed, defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Affirmed. 26 A-1438-15T2

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Docket No.: a1640-16
Decided: 2018-07-12
Caption: STATE OF NEW JERSEY v. AMANDA S. GUSRANG
Status: unpublished
Summary:
PER CURIAM A Law Division judge denied defendant Amanda Gusrang's motion to suppress the results of a warrantless blood sample taken to determine her blood alcohol content following a fatal motor vehicle accident in which she was the responsible driver. In a written opinion, the judge found that exigent circumstances justified the warrantless search, thus making the results admissible. After the motion was denied, defendant entered a guilty plea to the single count of the indictment, which charged her with second-degree vehicular homicide, N.J.S.A. 2C:11-5(a). In accord with the plea agreement, the judge sentenced defendant in the third-degree range to three years in state prison, subject to a three-year period of parole ineligibility, restitution, and appropriate fines and penalties. Defendant now appeals the denial of the motion to suppress. We affirm. We glean the facts from the testimony presented during the suppression hearing. At approximately 8:29 p.m. on December 6, 2013, during a rainy night, Pemberton Township Police Officer Thomas Lucas was on routine patrol, following a patrol car driven by Officer John Glass. The officers immediately pulled over upon seeing the headlights of stopped cars. The roadway was bordered by farm fields, which were very muddy from the rain. A silver Toyota Prius had rolled on the driver's side in a field next to the roadway. As they made their way to the car, the mud came up to the officers' shins. The only person in the vehicle was the driver, John Anderson, who lay still and face-down in the mud. 2 A-1640-16T4 Fearing that Anderson would drown, Lucas broke the rear passenger window and lifted Glass into the car so he could attempt to move the victim. With the help of a bystander, Lucas was able to push the roof of the vehicle up enough to allow Glass to get Anderson's head out of the mud. However, they were unable to move Anderson out of the Prius, as one of his arms was pinned underneath. The accident location was miles away from the nearest hospital. While the officers were attempting to extricate Anderson, a bystander cried out that there was a second vehicle down the road. Lucas left Glass with Anderson and drove to the other car, a Mercury Sable approximately 100 yards from the Prius. Defendant was standing outside the vehicle and did not appear to be seriously injured, although she had some blood on her t-shirt. She told Lucas that she was on the way home from work as a bartender at a nearby establishment. Lucas noticed the smell of alcohol in his vehicle once defendant was seated in the back of his patrol car, as he drove back to assist Glass. Because of the muddy conditions, efforts to remove Anderson from the mud required several rescue and first responder teams, an ambulance, paramedics, the Pemberton Township Fire Department, and the Fort Dix Fire Department. Seven out of the eight on-duty Pemberton Township officers responded to the scene of the accident, 3 A-1640-16T4 in addition to two off-duty officers and one Pemberton Borough Officer. Lucas and others described the scene as "chaotic." Lucas told Sergeant Michael Giebel that defendant smelled of alcohol. Defendant was still in the back seat of Lucas's patrol car when Officer John Hall moved it to make room for a fire truck. When Hall got out of the car, Giebel told him to take defendant to the ambulance and escort her to the hospital for a blood draw. The recommendation actually came from Officer Steven Price, the traffic safety officer Giebel called for assistance in investigating the collision. Price gave the instruction upon being informed that defendant smelled of alcohol. Hall and defendant arrived at the hospital at 9:17 p.m. Another officer brought a blood draw kit retrieved from the Pemberton Township police station. Defendant was carried into an exam room on a stretcher. Hall told Erin Mosely, the registered nurse who was treating defendant, that defendant was in custody for a DUI, and that he would ask defendant for consent to do a blood draw. According to Hall, defendant "began saying . . . she's under arrest for DUI because she only had two shots . . . something to the effect that she's only had two shots. She said that numerous times." Hall read the consent form to defendant as she was being treated for an injury to her left arm. Defendant then "said go 4 A-1640-16T4 ahead, something to the effect of go ahead . . . and pushed her [right] arm out." When Mosely finished with the hospital's bloodwork, she drew the samples for Hall, who placed them into the blood kit. As soon as Mosely was available, he had her complete the blood extraction form. Hall testified that he did not obtain a search warrant because he was concerned about the length of time it would take to obtain one, and the possibility that the alcohol in defendant's blood would dissipate in the interim. Hall did not get defendant's signature on the consent form once she agreed to the blood draw because there were at least two or three people attending to her, and he did not want to interfere with her medical care. When Hall reentered defendant's room to have her the sign the consent form, she said "I'm not signing shit." Hall then read defendant her Miranda1 rights before asking her the questions on the Driving Under the Influence Questionnaire. Defendant told Hall that she had only consumed two shots of Jameson whiskey at her workplace between 7:00 p.m. and 7:30 p.m., and that she had eaten dinner at 5:30 p.m. Defendant's blood alcohol reading, approximately one hour after the incident, was .22 percent. 1 Miranda v. Arizona, 384 U.S. 436 (1966). 5 A-1640-16T4 Hall contacted Price regarding defendant's refusal to sign the consent form. He then called the Burlington County Prosecutor's Office, and was instructed to obtain a taped statement from Mosely. This was done, but the tape was lost. Defendant was released to her grandfather at around 11:18 p.m. that night. For the judge, the key fact was the nature of the accident. Because of the precarious way Anderson was trapped in his vehicle, officers from multiple agencies were needed in the attempt to get him out of the mud. The investigation required the attention of all the Pemberton Township police officers, leaving only one on- duty officer available for patrol. The investigation lasted over four hours, and the roadway remained closed until almost 1:00 a.m. Defendant raises the following points on appeal: POINT I THERE WERE NO EXIGENT CIRCUMSTANCES TO JUSTIFY A WARRANTLESS SEARCH POINT IA MISSOURI V. MCNEELY POINT IB NEW JERSEY APPELLATE DIVISION ANALYSIS OF MCNEELY REQUIRES THE WARRANTLESS BLOOD DRAW TO BE SUPPRESSED POINT II APPELLATE DIVISION DECISION STATE V. DONNA JONES IS INAPPLICABLE POINT III NO EVIDENCE OF KNOWING AND VOLUNTARY CONSENT 6 A-1640-16T4 I. On appeal, we defer to the trial court's findings of fact where supported by "sufficient evidence in the record." State v. Hubbard, 222 N.J. 249, 262 (2015) (citations omitted). Findings of fact are set aside only when clearly mistaken. Id. at 262. Our review of the trial court's legal conclusions, however, is always plenary. State v. Hathaway, 222 N.J. 453, 467 (2015) (citation omitted). The United States Constitution and the New Jersey State Constitution both guarantee the right to be free from unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. The seizure of blood from a suspect is considered a search under both constitutions. Schmerber v. California, 384 U.S. 757 (1966); State v. Ravotto, 169 N.J. 227 (2001). Consistent with the above constitutional provisions, "police officers must obtain a warrant from a neutral judicial officer before searching a person's property, unless the search falls within one of the recognized exceptions to the warrant requirement." State v. Diloreto, 180 N.J. 264, 275 (2004) (citation omitted). One such exception is the presence of exigent circumstances. State v. Johnson, 193 N.J. 528 (2008). In Schmerber v. California, the Supreme Court upheld a DWI suspect's warrantless blood test where the officer "might 7 A-1640-16T4 reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened 'the destruction of evidence.'" 384 U.S. at 770 (quoting Preston v. United States, 376 U.S. 364, 367 (1964)). The Supreme Court later clarified that "in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant." Missouri v. McNeely, 569 U.S. 141, 165 (2013). Accordingly, the New Jersey Supreme Court has held that "potential dissipation of the evidence may be given substantial weight as a factor to be considered in the totality of the circumstances." State v. Adkins, 221 N.J. 300, 303 (2015). In making that decision, the Court noted: We are constrained to adhere to the McNeely Court's totality-of-the-circumstances approach notwithstanding that our case law, like that of many sister states, had provided de facto, if not de jure, support for law enforcement to believe that alcohol dissipation in and of itself supported a finding of exigency for a warrantless search of bodily fluids in suspected driving-under- the-influence cases. [Ibid.] 8 A-1640-16T4 "Our courts are tasked with focusing 'on the objective exigency of the circumstances' that officers face in each specific, unique instance." State v. Zalcberg, 232 N.J. 335, 352 (2018) (quoting Adkins, 221 N.J. at 317). Defendant argues that the judge erred in finding exigent circumstances to justify a warrantless search, claiming that State v. Jones, 441 N.J. Super. 317 (App. Div. 2015) (hereafter Jones II), aff'g State v. Jones, 437 N.J. Super. 68 (App. Div. 2014) (hereafter Jones I) is inapplicable. Jones I stated: The fact that the Supreme Court rejected a per se exigency rule in McNeely should not be misinterpreted as a retreat from its recognition that the dissipation of alcohol in the blood merits considerable weight in a totality of the circumstances analysis. It must be emphasized that both the Missouri Supreme Court and the United States Supreme Court described the facts in McNeely as "'unquestionably a routine DWI case' in which no factors other than the natural dissipation of blood-alcohol suggested that there was an emergency." McNeely, [569] U.S. at [147] . . . . [Jones I, 437 N.J. Super. at 78.] We went on to distinguish McNeely from the circumstances in Jones I: "[t]here was no accident; no injured defendant who needed to be extricated from [their] heavily damaged car; no other injured person who had to be transported to the hospital; no concentration 9 A-1640-16T4 of disabled cars and emergency vehicles at a busy intersection; and no police investigation beyond the DWI arrest." Ibid. As the Court further clarified in Zalcberg, in each case there must be a close analysis of the specific circumstances, including the obligations and practical burdens the individual accident imposes on the responding police officers. 232 N.J. at 351. As in Zalcberg, here the officers' failure to apply for a warrant was attributable to, as the judge described it, the "complexity of the situation and the reasonable allocation of limited police resources -- not a lack of emergent circumstances, as argued by defendant." That the officer who obtained the blood sample without first obtaining a warrant did so after waiting in the hospital for some time for defendant to be treated does not support defendant's position. Applying the Zalcberg analysis to the situation, the legitimate exigency is not undermined by this delay. Defendant needed treatment, a reasonable first priority. She herself contributed to the difficulties Hall faced. Instructed to obtain a blood draw, he obtained defendant's initial consent, and after he waited for her treatment to be completed, was confronted with her change of heart. That night, the department and related agencies focused on the ultimately fruitless effort 10 A-1640-16T4 to remove the victim before he expired, and then to remove his body, investigate, and clear the roadway. Pemberton Township is a small department, and the incident left a largely rural area short on police coverage for hours. Examining the totality of the circumstances, the dissipation of alcohol in the blood created an exigency which legally justified the warrantless search. The trial judge correctly focused on the "objective exigency" of the circumstances that the officers faced here. Zalcberg, 232 N.J. at 352; Adkins, 221 N.J. at 317. He concluded that "[t]here is no question that the responding Pemberton Township officers were confronted with an emergency situation," explaining the many compounding variables. His factual findings were based upon "sufficient credible evidence in the record" and are entitled to deference. Elders, 192 N.J. at 243; Johnson, 42 N.J. 146, 161 (1964). II. Defendant contends that consent cannot operate as an exception to the warrant requirement in this case. We do not reach that issue, as we find that the exigencies presented by this incident on that particular night in this particular locale created an objective exigency that rendered correct the trial judge's decision to deny the motion to suppress. Affirmed. 11 A-1640-16T4

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Docket No.: a1968-16
Decided: 2018-07-12
Caption: STATE OF NEW JERSEY v. RAHEEM A. PAMPLIN
Status: unpublished
Summary:
PER CURIAM Defendant appeals from the October 21, 2016 order of the trial court denying his petition for post-conviction relief (PCR) without granting an evidentiary hearing. He argues he established "a prima facie case of ineffective assistance of counsel" "under the two-pronged test set forth in Strickland [v. Washington, 466 U.S. 668, 687 (1984)]" based on "his trial counsel's failure to file a severance motion and consolidation motion" for his three indictments prior to his first trial. He asserts that because his co-defendant "refused to enter into a plea deal," a motion to sever "would have saved [him] from trial, while a consolidation motion would have reduced his overall sentence or increased his chances of negotiating a better plea deal overall." We disagree and affirm. We glean the following facts from the record. On December 11, 2007, an Essex County grand jury returned Indictment No. 07- 12-4002 (the first indictment), charging defendant and co- defendant Quadir Graham with third-degree conspiracy, N.J.S.A. 2C:5-2 (count one); third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count two); third- degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count three); and third-degree possession of a controlled dangerous substance with 2 A-1968-16T3 intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7 (count four). The following year, on January 11, 2008, another Essex County grand jury returned Indictment No. 08-01-0126 (the second indictment), charging defendant with third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(3) (count two); and third-degree possession of a controlled dangerous substance with intent to distribute within 1000 feet of a school zone, N.J.S.A. 2C:35-7 (count three). While the Essex County indictments were pending, on December 23, 2008, a Bergen County grand jury returned Indictment No. 08- 12-2231 (the third indictment), charging defendant with second- degree possession of a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:35-5(a)(1), (b)(2) (count one); second- degree employing a juvenile in a drug distribution scheme, N.J.S.A. 2C:35-6 (count two); second-degree possession of a firearm during a drug offense, N.J.S.A. 2C:39-4.1(a) (count three); and second- degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four). On March 5, 2009, following a jury trial on the first indictment, defendant was convicted on count two, and the jury 3 A-1968-16T3 hung on the remaining counts. On April 13, 2009, defendant entered a negotiated guilty plea to count two of the second indictment pursuant to a plea agreement wherein the State agreed to dismiss the remaining charges in both the first and second indictments. On September 23, 2009, prior to sentencing on the first two indictments, defendant was tried in absentia by a jury and found guilty on all counts in the third indictment. On March 26, 2010, defendant was sentenced on the third indictment to an aggregate extended term sentence of thirty-six years with thirteen-and-one- half-years of parole ineligibility. Thereafter, on September 13, 2011, defendant was sentenced to a four-year term of imprisonment each on the first and second indictments, to run concurrent with each other and concurrent with the third indictment. Defendant's convictions and sentences on the first and second indictments were affirmed on appeal in our unpublished opinion, State v. Pamplin, No. A-1582-12 (App. Div. Sept. 22, 2014), which we incorporate by reference. As to the third indictment, we affirmed the convictions but remanded for resentencing in our unpublished opinion, State v. Pamplin, No. A-1008-10 (App. Div. Sept. 4, 2012), which we also incorporate by reference. We later affirmed the aggregate twenty-seven-year term of imprisonment with thirteen-and-one-half years of parole ineligibility imposed at the 4 A-1968-16T3 resentencing hearing on our Excessive Sentence Oral Argument calendar, R. 2:9-11, by order filed August 29, 2013. Defendant filed a petition for PCR on the third indictment alleging, among other things, that his trial counsel was ineffective for failing "to move to [c]onsolidate Bergen [County] charges with Essex [County] matters resulting in a higher aggregate sentence and extended term." The PCR court rejected all of defendant's arguments without granting an evidentiary hearing, and we affirmed in an unpublished opinion. State v. Pamplin, No. A- 3581-14 (App. Div. Aug. 25, 2017). On June 16, 2015, defendant filed a timely pro se petition for PCR on the first and second indictments, which is the subject of this appeal. Defendant alleged that his trial counsel was ineffective for failing to file a "motion for [c]onsolidation pursuant to [Rule] 3:25A-1, of [his] multi[-]county indictments/offenses, resulting in higher overall sentence(s)." Defendant's assigned PCR counsel filed a supplemental PCR petition and supporting brief, arguing that trial counsel "failed to consolidate [d]efendant's Bergen County matter with the Essex County matter even after [d]efendant requested that it be done." According to PCR counsel, defendant was prejudiced because it placed defendant "in a poor position to negotiate pleas in both cases." PCR counsel also submitted a supporting affidavit in 5 A-1968-16T3 which defendant averred that he requested his trial counsel to file a motion to consolidate, but he failed to do so. Defendant also stated that trial counsel "failed to discuss any motions with [him] and did not file a [m]otion to [s]uppress or a [m]otion for [s]everance." On October 21, 2016, following oral argument, the PCR court rejected defendant's arguments and denied the petition, concluding defendant failed to satisfy the Strickland test to warrant PCR relief or an evidentiary hearing. Specifically, as to trial counsel's failure to file a consolidation motion, relying on State v. Rountree, 388 N.J. Super. 190, 213 (App. Div. 2006), the court acknowledged that defendant satisfied the first Strickland prong. However, the court found that the second Strickland prong had not been met because, had a consolidation motion "been filed[,] it would [not] have affected [defendant's] ability to resolve the issue by plea agreement" so "that the result would have been different." To support its finding, the court pointed out that defendant "ha[d] not shown that he was prevented from obtaining a plea in the Bergen County matter," and "the sentence in Essex County was run concurrent to the sentence in Bergen County." Turning to defendant's claim that his trial counsel was ineffective for failing to file a severance motion, citing State v. Robinson, 253 N.J. Super. 346, 364 (App. Div. 1992), the PCR 6 A-1968-16T3 court noted that while Rule 3:15-2(b) provided relief from prejudicial joinder, there was "a general preference to try co- defendants jointly," and under State v. Brown, 170 N.J. 138, 160 (2001), "[d]anger by association [was] not enough to support a motion to sever." The court determined there was "nothing . . . in [the] record that indicate[d] the severance was . . . reasonable, and the motion should have been filed" and found no prejudice from trial counsel's failure to file a severance motion. The court entered a memorializing order on the same date and this appeal followed. On appeal, defendant raises the following single point for our consideration: IT WAS AN ABUSE OF DISCRETION FOR THE PCR COURT TO DENY DEFENDANT AN EVIDENTIARY HEARING. 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 only if the defendant has presented a prima facie claim of ineffective assistance, material issues of disputed fact lie outside the record, and resolution of the issues necessitate a hearing. R. 3:22-10(b); State v. Porter, 216 N.J. 343, 355 (2013). "Rule 3:22-10 recognizes judicial discretion to 7 A-1968-16T3 conduct such hearings." State v. Preciose, 129 N.J. 451, 462 (1992). A PCR court deciding whether to grant an evidentiary hearing "should view the facts in the light most favorable to a defendant to determine whether a defendant has established a prima facie claim." Id. at 463. To establish a prima facie claim of ineffective assistance of counsel, a defendant must demonstrate the reasonable likelihood of succeeding under the test set forth in [Strickland, 466 U.S. at 694], and United States v. Cronic, 466 U.S. 648 (1984), which [our Supreme Court] adopted in State v. Fritz, 105 N.J. 42, 58 (1987). [Ibid.] Under the Strickland standard, a defendant must make a two- part showing, State v. O'Neil, 219 N.J. 598, 610 (2014), by demonstrating that trial counsel's performance was both deficient and prejudicial. State v. Martini, 160 N.J. 248, 264 (1999). The performance of counsel is "deficient" if it falls "below an objective standard of reasonableness" measured by "prevailing professional norms." Strickland, 466 U.S. at 687-88. This standard of "reasonable competence," Fritz, 105 N.J. at 60, "does not require the best of attorneys," State v. Davis, 116 N.J. 341, 351 (1989), and the defendant must overcome a "strong presumption 8 A-1968-16T3 that counsel rendered reasonable professional assistance." State v. Parker, 212 N.J. 269, 279 (2012). "[A] defendant must also establish that the ineffectiveness of his attorney prejudiced his defense" by showing "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 279- 80 (quoting Strickland, 466 U.S. at 694). "A 'reasonable probability' simply means a 'probability sufficient to undermine confidence in the outcome' of the proceeding." O'Neil, 219 N.J. at 611 (quoting Strickland, 466 U.S. 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." Fritz, 105 N.J. at 52 (alteration in original) (quoting Strickland, 466 U.S. at 687). Defendant bears the burden of proving both prongs of an ineffective assistance of counsel claim by a preponderance of the evidence. State v. Gaitan, 209 N.J. 339, 350 (2012). Applying these principles, we conclude that the PCR court properly denied defendant's petition without granting an evidentiary hearing. Assuming that a motion for consolidation would have been granted as authorized by State v. Pillot, 115 N.J. 558, 568 (1989), as the PCR court noted, defendant presented no evidence of a plea offer or that he was prevented from accepting 9 A-1968-16T3 a plea offer in the Bergen County case for any reason other than his own conduct. Indeed, defendant failed to appear for trial on the Bergen County indictment and was tried in absentia. Further, other than "bald assertions," which are insufficient for PCR, Cummings, 321 N.J. Super. at 170, defendant presented no evidence that he would have received a more favorable overall plea offer if the cases had been consolidated. The Bergen County case was clearly the most serious of the three, and defendant received significantly less severe concurrent sentences in the Essex County cases despite going to trial on the first indictment.1 "Defendant's ineffective-assistance arguments therefore fail to meet the second Strickland prong, that is, failure to consolidate did not likely make a difference." Rountree, 388 N.J. Super. at 213. As to trial counsel's failure to file a motion to sever, it is well established that "[i]t is not ineffective assistance of 1 We note that ordinarily, in circumstances as those presented to defendant in the first indictment, it is unlikely that the State would have rebuffed defendant's offer to enter a negotiated guilty plea conditioned upon incriminating his recalcitrant co-defendant at trial. See, e.g., State v. Jaffe, 220 N.J. 114, 116 (2014) (State accepted defendant's guilty plea to one offense if he agreed to testify against his co-defendants in exchange for a reduced sentence); State v. Dalziel, 182 N.J. 494, 498 (2005) (prosecutor accepted defendant's negotiated guilty plea to one offense and truthful testimony against co-defendant in exchange for dismissal of all other charges). 10 A-1968-16T3 counsel for defense counsel not to file a meritless motion." State v. O'Neal, 190 N.J. 601, 619 (2007). As we explained in defendant's direct appeal of his first and second indictments, defendant's conviction on the first indictment stemmed from police observing defendant and co-defendant Graham engaged in a hand-to- hand drug sale to an unidentified buyer, during which defendant "act[ed] as a lookout for Graham" and after which police recovered "fifteen decks of what was . . . later confirmed as heroin" and "$518 from defendant" in a search incident to his arrest. Pamplin, No. A-1582-12, slip op. at 2, 9. As the PCR court noted, where "much of the same evidence is needed to prosecute each defendant, a joint trial is preferable." State v. Sanchez, 143 N.J. 273, 281 (1996) (quoting State v. Brown, 118 N.J. 595, 605 (1990)). Inasmuch as a severance motion would not have been successful, defendant's trial attorney was not ineffective because he failed to file one. Moreover, given the concurrent sentences on the Essex County indictments, defendant cannot show the requisite prejudice to warrant PCR or an evidentiary hearing. Affirmed. 11 A-1968-16T3

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Docket No.: a2263-17
Decided: 2018-07-12
Caption: STATE OF NEW JERSEY v. MARKEITH BRYSON
Status: unpublished
Summary:
PER CURIAM We granted the State leave to appeal from an interlocutory January 10, 2018 order suppressing the testimony of two of the State's witnesses and the medical records of the victim pursuant to Rule 3:13-3(f). We reverse and remand. We glean the following facts from the record. On March 1, 2017, police were dispatched to a location in Florence Township after reports of a shooting. Shortly thereafter, Burlington City police stopped a vehicle being driven by Eugene Greshan. During the stop, police discovered he had been shot multiple times. When questioned by police regarding the shooting, Greshan denied knowing who shot him and was unwilling to acknowledge he was shot. On March 15, 2017, Albert Morton claimed to be an eyewitness to the shooting and gave a videotaped statement to detectives identifying defendant Markeith Bryson as the shooter. On April 4, 2017, Nahjee Cox also claimed to be an eyewitness to the shooting and gave a videotaped statement to detectives identifying defendant as the shooter. On July 6, 2017, a grand jury indicted defendant for: first- degree attempted murder, N.J.S.A. 2C:5-1(a)(1) and 2C:11-3(a)(1) (count one); second-degree aggravated assault, N.J.S.A. 2C:12- 1(b)(1) (count two); third-degree aggravated assault, 2C:12- 1(b)(2) (count three); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count four); unlawful 2 A-2263-17T2 possession of a weapon, N.J.S.A. 2C:39-5(b)(1) (count five); and fourth-degree aggravated assault, 2C:12-1(b)(4) (count six). Defendant was detained pretrial with a scheduled release date of January 6, 2018, pursuant to N.J.S.A. 2A:162-22. On August 18, 2017, defendant demanded discovery of audiovisual tapes and transcripts of all witness statements. During a September 5, 2017 pre-trial conference, defendant informed the trial court the State had yet to provide audiovisual tapes and transcripts of any witness statements. Defendant further alerted the trial court and the State to this discovery issue in his pretrial memorandum dated November 22, 2017. Defendant also indicated the State failed to provide Greshan's medical records. On November 22, 2017, defendant again alerted the trial court of the State's failure to provide the witness statements in any form. Two days later, the State provided defendant with the tapes of the witness statements but no transcripts. Trial was initially set to commence on November 28, 2017, but was adjourned to January 3, 2018, at the State's request. The State conceded the witness statements were not sent for transcription until November 28, 2017. Additionally, the State did not subpoena Greshan's medical records until December 4, 2017. On January 2, 2018, only one day before trial, the State provided defendant with the victim's medical records and the 3 A-2263-17T2 transcripts of three statements, including defendant's. The court adjourned trial for one day for unrelated reasons. On January 4, 2018, the State provided defendant with transcripts of the interviews given by Morton and Cox, but the latter was incomplete. A weather-related court closure delayed commencement of the trial until January 5, 2018.1 Defendant moved to exclude the testimony of the other four individuals as well as Greshan's medical records due to the State's failure to timely provide discovery. The trial court requested additional briefing and heard further argument on January 9, 2018. Defendant narrowed his motion to exclude only the testimony of Morton and Cox and Greshan's medical records. The State represented it would not be using the videotaped statements or the transcripts of those statements in its case-in-chief. On January 10, 2018, the trial court granted defendant's motion to exclude Morton and Cox's testimony and the victim's medical records. The judge found the State failed to comply with the request for discovery," a point which "has not been contested by the State," and the remedy for which "is within the broad discretion of the [c]ourt." The judge concluded exclusion of the 1 Although defendant's speedy trial release date was scheduled for January 6, 2018, he remained incarcerated because the trial court determined trial had commenced. 4 A-2263-17T2 testimony of Cox and Morton and the victim's medical reports was the "appropriate remedy" for the State's failure to comply with defendant's discovery requests. The judge specifically found: (1) "[t]he plain language of [the discovery] rule prohibits the late production of transcripts"; (2) "defendant is prejudiced by the late production of this discovery" because it "does not allow the defendant to properly prepare for cross-examination" and granting a continuance, as the State requested, "may result in a defendant being incarcerated beyond the period that a trial would normally take"; (3) "[g]ood cause for the late production is absent" as the State had notice, as early as August 18, 2017, that it was required to provide defendant with the tapes and transcripts of witness statements thirty days prior to the trial date of November 28, 2017, yet failed to do so; (4) the materiality of the evidence not properly disclosed during discovery led to "defendant's inability to investigate while the trial [was] proceeding"; and (5) there was "somewhat in this case a pattern about discovery and that the alternative remedy of an adjournment would result in manifest and harmful prejudice to the defendant." The judge entered an order reflecting his ruling on January 10, 2018. On January 11, 2018, the trial court granted the State's motion for stay of trial and defendant's release pending appeal. 5 A-2263-17T2 We granted the State's emergent motion for leave to appeal and to continue the stay of the trial court's ruling.2 On appeal, the State raises the following point: [THE TRIAL COURT] ERRED IN CONCLUDING THAT EXCLUSION OF THE WITNESSES' TESTIMONY WAS THE APPROPRIATE REMEDY FOR THE STATE'S LATE PROVISION OF THE TRANSCRIPTS OF THE WITNESSES' OUT-OF-COURT STATEMENTS. "A trial court's resolution of a discovery issue is entitled to substantial deference and will not be overturned absent an abuse of discretion." State v. Stein, 225 N.J. 582, 593 (2016). This court "need not defer, however, to a discovery order that is well 'wide of the mark,' or 'based on a mistaken understanding of the applicable law.'" State v. Hernandez, 225 N.J. 451, 461 (2016) (citation omitted) (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)). Additionally, the "review of the meaning or scope of a court rule is de novo" with no deference "to the interpretations of the trial court . . . unless we are persuaded by [its] reasoning." State v. Tier, 228 N.J. 555, 561 (2017) (citing Hernandez, 225 N.J. at 461). The State argues the trial court abused its discretion in excluding Morton and Cox's testimony at trial. We agree. 2 The State does not appeal the exclusion of Greshan's medical records. 6 A-2263-17T2 Rule 3:13-3(b)(1)(G) provides discovery shall include record of statements, signed or unsigned, of witnesses and co-defendants which are within the possession, custody or control of the prosecutor and any relevant record of prior conviction of such persons. The prosecutor also shall provide the defendant with transcripts of all electronically recorded co-defendant and witness statements by a date to be determined by the trial judge, except in no event later than 30 days before the trial date set at the pretrial conference, but only if the prosecutor intends to call that co-defendant or witness as a witness at trial. In turn, Rule 3:13-3(f) provides, in pertinent part: If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, it may order such party to permit the discovery of materials not previously disclosed, grant a continuance or delay during trial, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate. To be sure, the State should have provided the transcripts by December 4, 2017. However, a trial judge is not limited to preclusion of the testimony as a remedy. "The rule specifically provides for discretion in formulating a sanction for a discovery violation." State v. Clark, 347 N.J. Super. 497, 509 (App. Div. 2001) (citations omitted). In resolving discovery disputes and 7 A-2263-17T2 imposing sanctions, "[a]n adjournment or continuance is a preferred remedy where circumstances permit." Ibid. It is well understood "the sanction of preclusion is a drastic remedy and should be applied only after other alternatives are fully explored[.]" State v. Washington, 453 N.J. Super. 164, 190 (2018) (alteration in original) (quoting State v. Scher, 278 N.J. Super. 249, 272 (App. Div. 1994)); see also State v. Dimitrov, 325 N.J. Super. 506, 511 (App. Div. 1999) ("[I]t is axiomatic that '[b]efore invoking the ultimate sanction of barring a witness, the court should explore alternatives.'" (second alteration in original) (quoting State v. Volpone, 150 N.J. Super. 524, 530 (App. Div. 1977)); Zaccardi v. Becker, 88 N.J. 245, 253 (1982) (explaining "although it is the policy of the law that discovery rules be complied with, it is also the rule that drastic sanctions should be imposed only sparingly"). However, "repeated and flagrant derelictions" of discovery rules "may require application of the sanction of preclusion." State v. Burnett, 198 N.J. Super. 53, 61 (App. Div. 1984). When adjournment of the trial will avoid the risk of prejudice resulting from untimely discovery, trial courts have discretion to choose that option rather than suppression. See State v. Utsch, 184 N.J. Super. 575, 580 (App. Div. 1982). Here, continuance, not exclusion, was the appropriate remedy. 8 A-2263-17T2 Exclusion of the testimony on the ground that the discovery rights of defendant were violated was not warranted. Mindful of the general policy of admissibility, the judge should have availed himself of other means of protecting defendant from surprise. Ample protection of defendant's interest could have been achieved by according defense counsel an opportunity to interview the complaining witness, by granting a brief continuance, or by some other procedure which would have permitted defense counsel to prepare to meet the evidence. [State v. Lynch, 79 N.J. 327, 335-36 (1979) (quoting State v. Moore, 147 N.J. Super. 47, 51 (App. Div. 1977)).] The present circumstances favored granting a continuance rather than excluding the testimony. First, defendant was provided with copies of the videotaped statements on November 24, 2017, some thirty-nine days before the January 3, 2018 trial date. Second, defendant has now had well more than thirty days to prepare cross-examination as a result of the stay of the trial court's ruling pending appeal, eliminating any alleged prejudice. Third, the delay in providing the transcripts did not result from an effort by the State to gain a tactical advantage. Furthermore, the trial court failed to address whether the testimony of Morton and Cox "was so important that its exclusion [would have] an effect on the fairness of the trial." Washington, 453 N.J. Super. at 192 (alteration in original) (quoting State v. Williams, 214 N.J. Super. 12, 22 (App Div. 1986)). "The trial of 9 A-2263-17T2 criminal cases involves important interests of the State, the alleged victims, and the public, not just those of defendant alone." Ibid. (citations omitted). Here, the State asserts it is unable to prove its case if the testimony of Morton and Cox is precluded. Thus, the State will be forced to dismiss the charges if the trial court's ruling stands. Important public policy reasons militate against this result. "We recognize that trial courts are vested with the discretion to fashion an appropriate sanction for a violation of discovery obligations." State v. Richardson, 452 N.J. Super 124, 137 (App. Div. 2017) (citing State v. Dabas, 215 N.J. 114, 141 (2013)). However, under these circumstances, the trial court should have ordered a continuance of trial, which would have allowed the State to present, and the defendant to respond to, this important testimonial evidence. By declining to do so, and instead excluding the testimony, the trial court abused its discretion. Finally, we note N.J.S.A. 2A:162-22, the speedy trial section of the Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to -26, did not preclude a continuance of trial. Washington, 453 N.J. Super. at 193. "'If the trial does not commence within' 180 days of indictment, not counting excludable time, a defendant may be entitled to the speedy trial statute's remedy: that 'the eligible defendant shall be released from jail.'" Ibid. (quoting N.J.S.A. 10 A-2263-17T2 2A:162-22(a)(2)(a)). Defendant may apply for release from jail and, in response, the State may request excludable time under N.J.S.A. 2A:162-22(b)(1)(g). "Thus, the speedy trial statute was not a basis for denying the continuance." Ibid. "[C]ourts should consider discovery issues separately from speedy trial issues" as it is "improper to impose a discovery sanction based on a perceived failure to comply with the speedy trial statute." Id. at 187. We reverse the order to the extent that it bars the testimony of Morton and Cox and remand for trial. Reversed and remanded. 11 A-2263-17T2

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Docket No.: a5097-16
Decided: 2018-07-12
Caption: STATE OF NEW JERSEY v. TATYANA ROZENTULER
Status: unpublished
Summary:
PER CURIAM Defendant Tatyana Rozentuler appeals from the June 23, 2017 Law Division conviction following a trial de novo on the municipal court record. See R. 7:13-1. The charge she was convicted on was the motor vehicle offense of following too closely,1 N.J.S.A. 39:4-89.2 The judge sentenced Rozentuler to payment of a $50 fine and court costs of $33. On July 13, 2017, he denied Rozentuler's stay application. We denied a similar motion on August 24, 2017. We now affirm. On this appeal, Rozentuler presents the following points for our consideration: I. MIDDLESEX COUNTY SUPERIOR COURT ERRED ON IGNORING THE VERIFIABLE MATHEMATICAL CALCULATIONS . . . WHICH WERE PROVIDED BY THE DEFENSE AS BEING BASED ON APPROXIMATIONS . . . IGNORING VIDEO EVIDENCE . . . AND CHOOSING INSTEAD TO BELIEVE THE QUESTIONABLE AND INCONSISTENT EYEWITNESS ACCOUNT . . . OF OFFICER VELEZ IN ORDER TO PROVE THE STATE'S CASE BEYOND THE REASONABLE DOUBT II. MIDDLESEX COUNTY SUPERIOR COURT ERRED ON ACCEPTING STATE'S ARGUMENTS WITHOUT RAISING QUESTIONS AS TO HOW THE DEFENDANT'S CAR ENDED UP TWO FEET BEHIND THE OFFICER'S CAR ON THE "STRAIGHT STRETCH OF THE ROAD" BEFORE THE POINT WHERE OFFICER VELEZ PULLED OVER TO LET MRS. ROZENTULER TO PASS III. COURT DID NOT ALLOW THE DEFENDANT TO REPRESENT ALL ARGUMENTS BY CONSTANTLY INTERRUPTING THE DEFENDANT AND MAKING REMARKS THROUGHOUT THE DEFENDANT'S TESTIMONY IV. MIDDLESEX COUNTY SUPERIOR COURT RELIED ON THE OPINION OF THE MUNICIPAL COURT WHEN 1 Also known as "tailgating." 2 Rozentuler was also found guilty of failure to produce her driver's license, N.J.S.A. 39:3-29(a), but she does not appeal that conviction. 2 A-5097-16T3 DETERMINED [sic] THE CREDIBILITY OF THE WITNESS FOR TO THE STATE . . . HOWEVER THE MUNICIPAL COURT REPEATEDLY SHOWED PREJUDICE AGAINST THE DEFENDANT AND DOES NOT APPEAR TO BE IMPARTIAL TOWARD THE DEFENDANT Having reviewed the record in light of the applicable legal standards, we find no merit in any of these arguments. I. Township of East Brunswick Officer David Velez testified that on November 15, 2016, a rainy morning, at approximately 7:14 a.m., he was proceeding northbound on Jensen Road in an unmarked vehicle. He looked in his rear view mirror and saw a vehicle within two to three feet of his car. It was so close he was unable to see either the front license plate or the car's headlights. He pulled over for the vehicle to pass; after it did, he stopped the car and issued the summons for tailgating. Velez testified that a safe distance between vehicles at twenty-five miles per hour is two and one-half car lengths apart, whereas Rozentuler was only two to three feet behind him. The only defense witness was Rozentuler's husband, who was driving about 100 feet behind her when she was pulled over. At the point where he could see his wife's car in front of him, on a curve, she was not tailgating. In fact, defendant was stopped on a straight stretch of road; again, her husband was at least 100 feet behind her. The municipal court judge found both witnesses 3 A-5097-16T3 credible, and concluded that after the curve in the roadway, given the distance he was traveling behind his wife——varying from 100 to 200 feet——he would have been unable to see Rozentuler's proximity to the police car. II. During her presentation to the Law Division, Rozentuler presented mathematical calculations in an attempt to undermine Velez's testimony. In response to this argument, the Law Division judge stated the calculations were based on a false premise, because the speeds of the vehicles involved varied and her formulations assumed a constant. He ignored the argument, because he did not believe that in "real life" the attack on the officer's accuracy of perception could succeed based on "rigid determinations." Instead, he relied upon the officer's perceptions while observing the car behind him in the rearview mirror. As the judge said, the officer pulled over because he believed the conduct was dangerous. Given that he was found to be credible by the municipal court judge, and based on the judge's own review of the record, the officer's observations controlled and warranted the conviction. III. Rozentuler asserts the Law Division judge erred because he did not sufficiently question Velez's testimony. Neither the 4 A-5097-16T3 Municipal Court judge nor the Law Division judge perceived there to be such inaccuracies as to warrant an acquittal. Rozentuler also claims the Municipal Court judge constantly interrupted her presentation and "favor[ed]" the State during the proceeding. This bias, she argues, is proven by a sequence of events, including the municipal court's slow response to inquiries. Therefore, she argues, the Law Division judge should not have relied upon the Municipal Court judge's findings of credibility. Since Rozentuler represented herself in the Law Division, as she does on appeal, she is no doubt unaware she cannot raise new arguments in this court not addressed by the trial court. We have nonetheless considered her points, not previously made, about the alleged bias in the municipal court. Based on our review of the record, although Rozentuler obviously disagrees with the factual findings, nothing that was said by either judge displays any bias for the State or prejudice against defendant. As our Supreme Court has recently reiterated, at a trial de novo, "the court makes its own findings of fact and conclusions of law but defers to the municipal court's credibility findings." State v. Robertson, 228 N.J. 138, 147 (2017). Such deferral is not cast in stone, but depends upon the Law Division judge giving due, though "not necessarily controlling," regard to the Municipal 5 A-5097-16T3 Court judge's opportunity to view the witness's demeanor. Id. at 148 (citing State v. Johnson, 42 N.J. 146, 157 (1964)). When we review the trial court's findings, we focus on whether "sufficient credible evidence . . . in the record" justifies the Law Division's findings. Ibid. (quoting Johnson, 42 N.J. at 162). We rarely "undertake to alter concurrent findings of facts and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Ibid. (citing State v. Locurto, 157 N.J. 463, 474 (1999)). In our view, the Law Division's deferral to the credibility findings of the Municipal Court judge was warranted, and, in any event, the Law Division judge made independent credibility findings based on his review of the record. There is nothing in this record that raises a doubt as to the fairness of the ultimate holding that defendant violated the law with regard to tailgating. Affirmed. 6 A-5097-16T3

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Docket No.: a0736-16
Decided: 2018-07-11
Caption: STATE OF NEW JERSEY v. AMADO SANCHEZ
Status: unpublished
Summary:
PER CURIAM Defendant Amado Sanchez appeals from his conviction for second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), third- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). He also appeals from the sentence of seven years in prison subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. The charges arose from a June 15, 2014 incident, in which defendant allegedly cut the victim, Mr. Pajuada, on the arm with a large knife. Pajuada and his former girlfriend Ms. Rodriguez1 testified about the incident, as did defendant. On this appeal, defendant raises the following points of argument: I. THE TRIAL COURT IMPROPERLY PRECLUDED DEFENDANT FROM ELICITING TESTIMONY ABOUT THE COMPLAINING WITNESS'S DISMISSED CHARGES AND INADEQUATELY CHARGED THE JURY AS TO THE PENDING CHARGES OF THE STATE'S OTHER EYEWITNESS, DEPRIVING DEFENDANT OF HIS RIGHTS TO CONFRONTATION, DUE PROCESS, AND A FAIR TRIAL. A. The Trial Court Improperly Precluded Defendant From Eliciting Testimony About Complaining Witness Pajuada's Aggravated Assault Charges For Stabbing A Man, Which Were Dismissed Eight Weeks Before Defendant's Trial. 1 The witnesses' first names are irrelevant to our opinion, and we omit them to protect their privacy. 2 A-0736-16T4 B. The Trial Judge's Inadequate Instruction Regarding Charges Pending Against Rodriguez, The Only Other Eyewitness, Unfairly Neutralized The Effect Of That Testimony. (Not raised below) II. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON SELF-DEFENSE, WHICH WAS CLEARLY INDICATED BY TESTIMONY THAT THE COMPLAINING WITNESS ACTED AS THE AGGRESSOR AND BEAT DEFENDANT WITH A RAKE PRIOR TO THE INTRODUCTION OF A KNIFE INTO THE FIGHT. III. THE MATTER MUST BE REMANDED FOR RESENTENCING BECAUSE THE TRIAL COURT FAILED TO GIVE ANY REASONS SUPPORTED BY THE RECORD FOR THE TWO AGGRAVATING FACTORS IT FOUND AND FAILED TO TAKE INTO ACCOUNT RELEVANT MITIGATING FACTORS THAT WERE SUPPORTED BY THE RECORD. After reviewing the record, we find no merit in any of those contentions. We affirm the conviction and the sentence. I We summarize the most pertinent trial evidence, in light of the issues raised. There was no dispute that someone cut Pajuada on the arm. The wound severed an artery and required several surgeries to repair. The issue was whether defendant, or someone else, stabbed Pajuada. According to Pajuada, at the time of the incident, he had known defendant for several years, and the two of them did not get along. In the early morning hours of June 15, 2014, Pajuada got into a fight with defendant's cousin Luis. Pajuada testified that 3 A-0736-16T4 Luis had a broken bottle, and Pajuada punched him. However, Pajuada was not injured in that fight. After the fight with Luis, several other people confronted Pajuada, and during that confrontation, defendant pulled out a large knife and tried to stab Pajuada in the torso. Pajuada testified that defendant "was stabbing me in the body, but I moved and so he got me in the arm." After being injured, Pajuada chased defendant for a short distance, before collapsing due to loss of blood. Pajuada testified that on the night of the fight, he was unarmed. Pajuada gave a statement to the police the day after the assault, and another statement a month later. In both statements, he identified defendant as the one who cut him. In a statement to the police the day after the assault, Rodriguez also named defendant as the assailant, and she showed the police a Facebook photo of defendant on her cell phone. Rodriguez testified that at the time of the incident, she had known defendant for several years, and the two of them were friends. She had been Pajuada's girlfriend, had a child with him, and still had a friendly relationship with him. On the night of June 15, 2014, she went to an "after hours" drinking house2 on Ferry Street. Pajuada was already there. Defendant and Luis, 2 The house was also referred to as a "speakeasy." 4 A-0736-16T4 whom Rodriguez described as a "young boy," arrived a few minutes later. Someone told Rodriguez that Luis had a knife, and she took it away from him and hid it. According to Rodriguez, defendant got into an argument with Pajuada, and the two men and Luis went outside the house. Once outside, Luis and Pajuada got into a physical confrontation. Luis had a broken bottle in his hand, but Rodriguez grabbed it from him. Pajuada pushed Luis down, and defendant yelled at Pajuada to leave his cousin alone. Rodriguez admitted that Pajuada then challenged defendant to "fight like a man." Shortly thereafter, defendant pulled out a large knife and started brandishing it at Pajuada. Rodriguez tried to intervene but Pajuada pushed her out of the way. According to Rodriguez, Pajuada was unarmed at first, but grabbed a rake after defendant pulled out the knife. She testified that defendant had a clear path to leave the scene and could have walked away from the fight, as she was begging him to do, but he did not. After defendant "stabbed" Pajuada, defendant ran away, and Pajuada ran after him until he collapsed, bleeding. Rodriguez ran after Pajuada, and tried to stop the bleeding with a tourniquet. When the police arrived, Rodriguez told them defendant stabbed Pajuada. She repeated that statement later at the police station. 5 A-0736-16T4 In his trial testimony, defendant implicitly blamed his cousin Luis for injuring Pajuada. Defendant stated that he was at the Ferry Street house with Luis at around 3:40 a.m. on June 15, 2014. Pajuada was there, too, and got into an argument with Luis. Pajuada and Luis went outside, but defendant remained in the house "talking to a friend." A few minutes later, defendant and the friend went out the kitchen door to smoke a cigarette. Defendant testified that, after stepping outside, he saw that Pajuada and Luis were having a fight. Luis had a bottle in his hand and Pajuada had "a jack knife." They were both bleeding. According to defendant, Pajuada pushed Luis to the ground. Defendant walked over and lifted Luis up and told him to run, because Pajuada had a knife. Luis started running away, with Pajuada chasing him. Defendant walked away from the scene. Defendant denied having a weapon, and said he did not know how Pajuada "got injured." II Defendant contends that the trial court erred in precluding the defense from cross-examining Pajuada about a 2011 assault charge, which the State dismissed about eight weeks before defendant's 2016 trial began. At an in limine hearing prior to the trial, the prosecutor represented to the court that the State dismissed the charge because her office could not "get in contact 6 A-0736-16T4 with the victim." The defense did not question that representation. The defense also conceded that the prosecutor's office had told Pajuada that the assault charge against him had no connection to the charges against defendant. In other words, the State did not offer Pajuada a deal to dismiss the charge against him in return for his truthful testimony against defendant. The trial judge concluded that, under the circumstances, the fact that Pajuada previously faced an assault charge, which had been dismissed, admittedly with no deal, was not probative as to his credibility as a witness in this case. The judge further reasoned that, as a crime victim, Pajuada had the right to testify, without being questioned about irrelevant, dismissed charges. As the Supreme Court recently reaffirmed in State v. Bass, 224 N.J. 285 (2016), ordinarily, a witness's pending or resolved criminal charges are appropriate subjects for cross-examination, to show possible bias. Id. at 304-05. [T]he case law envisions that a trial court will undertake a careful evaluation of a defendant's claim that a witness is biased. The nature of the witness's alleged offense, and the sentencing exposure that he or she confronts by virtue of that offense, is a significant factor. If a witness faces a pending investigation or unresolved charges when he or she gives a statement to law enforcement, cooperates with the prosecution in preparation for trial, or testifies on the State's behalf, that investigation or charge is an appropriate subject for cross- 7 A-0736-16T4 examination. The trial court should also review the terms of the witness's plea agreement. [Id. at 305.] In the circumstances of this case, we agree with the trial judge that the prior, dismissed charge was not probative as to Pajuada's credibility. Pajuada had told essentially the same story since the night of the assault, when he was interviewed in the hospital. There is no evidence that he changed his story to incriminate defendant, after the State dropped the charges. Further, the defense did not question the prosecutor's explanation that the State dropped the charges because the victim could not be found, and there was no plea deal. Under those circumstances, Pajuada was not beholden to the State at the time of defendant's trial, and the State had nothing to hold over him, as it would if Pajuada were on probation or had promised to give testimony in exchange for dismissal of the charges. Lastly, on this record, if there was error in precluding defendant from eliciting evidence of the dismissed charge, the error was harmless. See R. 2:10-2; Bass, 224 N.J. at 307-08. For the first time on appeal, defendant also contends that the judge gave an inadequate jury instruction, after allowing the defense attorney to cross-examine Rodriguez about pending charges against her. The charges were filed in 2016, and there was no 8 A-0736-16T4 evidence that the State had offered Rodriguez a plea deal or otherwise suggested to her that she might get favorable treatment if she testified against defendant. Nonetheless, the trial judge properly allowed defense counsel to elicit from Rodriguez the fact that she had been charged with assault by auto and two weapons offenses, for which she could be sentenced to prison if convicted. After Rodriguez gave that testimony, the judge gave the jury a limiting instruction, telling them that they could only consider the testimony as it bore on Rodriguez's credibility. He told them they might consider whether someone who did not follow society's rules might also be likely not to give truthful testimony, and cautioned them that a person charged with a crime is nonetheless entitled to a presumption of innocence. At the next break, the judge specifically asked both attorneys if they had any objections to the limiting instruction he had just given. Defense counsel responded, "I have nothing, Your Honor." In summation, defense counsel made the point that Rodriguez was "currently being prosecuted by this prosecutor's office in a different case" and "testified in favor of the State in order to save herself." She argued that the jury could determine that Rodriguez hoped that testifying "would help her receive favorable treatment from the State in how they handle those charges." In response, the prosecutor argued that Rodriguez had been telling 9 A-0736-16T4 the same consistent story "since the early hours of June 15, [2014]." In his final charge to the jury, the judge thoroughly instructed the jury about how to consider the pending charges as possible evidence of bias. He explained to the jury that they could consider the pending charges against Rodriguez only to the extent that you determine that it has biased [her] in favor of the State, that is to say if you believe that [] Rodriguez testified as she did because of the charges, and because she hoped that her testifying would help her to receive favorable treatment from the State in how they handled those charges. The judge also, correctly, told the jury not to consider the "mere fact" of the pending charges as meaning that Rodriguez was guilty of the charges, or that she was "less likely to comply with our society's rules and, therefore, more likely to ignore the oath requiring truthfulness." Rather the issue was whether the pending charges influenced her to testify favorably to the State. There were no objections to the charge. Although the instructions the judge gave immediately after Rodriguez testified were not on point, the judge corrected the error in the final jury instructions. We find that the final charge adequately conveyed to the jury the concepts discussed in 10 A-0736-16T4 Bass, and in the Model Charge on Testimony of a Cooperating Witness. We find no plain error. R. 2:10-2. III Defendant next argues that the judge should have charged the jury as to self-defense. The argument is without sufficient merit to warrant discussion beyond these brief comments. R. 2:11- 3(e)(2). Beginning with defense counsel's opening statement, and continuing throughout the trial, the defense theory was that defendant had nothing do to with the stabbing of Pajuada. At the end of the testimony, the judge noted that a self-defense charge would be inconsistent with the defense theory, but he gave defense counsel until the next trial day to tell him whether she wanted a self-defense charge. Defense counsel did not request a self- defense charge, and giving due regard to the defense theory of the case, the judge did not give the charge. Defense counsel did not object to any aspect of the judge's final instructions. We find no error, much less plain error, in the judge's course of action. R. 2:10-2. In the context of this case, giving a self-defense charge would have undermined the defense. See State v. Perry, 124 N.J. 128, 162-64 (1991); State v. Vasquez, 265 N.J. Super. 528, 550 (App. Div. 1993). 11 A-0736-16T4 IV Finally, we address defendant's sentencing arguments. The judge found aggravating factors three and nine but did not give them any particular weight. See N.J.S.A. 2C:44-1(a)(3); N.J.S.A. 2C:44-1(a)(9). The judge also considered the particular seriousness of the victim's injury, which required five surgeries. The judge found mitigating factor seven, defendant's lack of any prior criminal convictions. N.J.S.A. 2C:44-1(b)(7). The judge considered all of the other mitigating factors defendant proposed and explained why he found they did not apply. After considering the factors he found, the judge imposed a seven-year term, which was in the mid-range for a second-degree crime. See N.J.S.A. 2C:43-6(a)(2). We find no abuse of discretion in the sentence. See State v. Case, 220 N.J. 49, 64-65 (2014); State v. Bolvito, 217 N.J. 221, 228 (2014). No further discussion of this point is warranted. R. 2:11-3(e)(2). Affirmed. 12 A-0736-16T4

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Docket No.: a1056-17
Decided: 2018-07-11
Caption: IN THE MATTER OF THE CIVIL COMMITMENT OF P.W.
Status: unpublished
Summary:
PER CURIAM P.W. appeals from the Law Division's October 11, 2017 judgment, ordering his continued commitment to the Special Treatment Unit (STU), the secure facility designated for the custody, care and treatment of sexually violent predators pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. For the reasons that follow, we affirm. P.W. is a forty-nine-year-old man with a significant history of committing sexual offenses against children dating back to 1987. In September 1997, P.W. was charged with sexual assault, child abuse, and endangering the welfare of a child for touching and fondling a nine-year-old boy's genitals. He pled guilty to endangering the welfare of a child and was sentenced to five years at the Adult Diagnostic Treatment Center (ADTC). Just days before the September incident, on or about August 29, 1997, P.W. walked into a basement where children were playing and fondled another young boy's genitals, and warned him that if he told anyone, he would "kick [his] ass." Because of this threat, the child did not disclose the incident to his mother until September 15, 1997. Reportedly, the child's sister was also present and witnessed P.W. touch her brother. In addition, she reported that P.W. attempted to touch her in her private area as well. P.W. pled guilty to endangering the welfare of a child and was sentenced to the ADTC for five years to run concurrent to the sentence he received from the September incident. In 2002, while on parole, P.W. informed a parole officer that he had just touched a seven-year-old boy on his genitals 2 A-1056-17T5 while in a grocery store. P.W. was arrested and charged with sexual assault, endangering the welfare of a child and child abuse. In January 2003, he pled guilty to sexual assault and was sentenced to five years in the ADTC. The State petitioned for P.W.'s involuntary commitment under the SVPA in 2006, and on February 7, 2007, the Law Division entered a judgment committing P.W. to the STU. A first review hearing was conducted on April 4, 2008, and P.W.'s commitment was continued. In 2009, STU entered into a court ordered discharge plan for an appropriate placement for P.W., but he expressed "concerns of reoffending [if he was] placed back into the community" and the plan was abandoned. Subsequent hearings have been held each year prior, resulting in P.W.'s continued commitment. The most recent review, which is the subject of this appeal, was conducted by Judge Honora O'Brien Kilgallen on October 11, 2017. At the hearing, P.W. did not challenge the fact he committed the requisite sexually violent criminal offense or suffered from pedophilia, which predisposes him to 3 A-1056-17T5 commit acts of sexual violence.1 The focus of the trial was the third required finding that P.W. is highly likely to reoffend. At the hearing, the State relied on the unrefuted expert testimony of psychiatrist Roger Harris, M.D., who opined that P.W.'s risk to sexually reoffend remained high. After interviewing P.W. and reviewing previous psychiatric evaluations, STU treatment records, and related documents, Harris prepared a report, which was admitted into evidence without objection. Similarly, the Treatment Progress Review Committee's (TPRC) report prepared by Jamie R. Canataro, Psy.D. 1 The Supreme Court has explained the proofs required at the initial hearing and subsequent reviews as follows: At the commitment hearing, the State must establish three elements: (1) that the individual has been convicted of a sexually violent offense; (2) that he suffers from a mental abnormality or personality disorder; and (3) that as a result of his psychiatric abnormality or disorder, "it is highly likely that the individual will not control his or her sexually violent behavior and will reoffend[.]" Although the first two elements derive directly from the statute, to comport with substantive due process concerns, this Court interpreted the third statutory element as requiring the State to show that a person is "highly likely," not just "likely," to sexually reoffend. [In re Civil Commitment of R.F., 217 N.J. 152, 173 (2014) (citations omitted).] 4 A-1056-17T5 was also admitted into evidence by consent. The doctor prepared the report after she participated in the TPRC's review and interview of P.W. Additionally, P.W. testified by making a formal statement at the hearing. Harris concluded that P.W. is "highly likely to sexually reoffend if placed in a less restrictive setting than" STU. Harris testified to P.W.'s prior sexual offenses, stating that his evaluation shows "that his arousal is more to boys" than girls, and that he acts on his arousals despite his prior incarcerations. According to Harris, P.W. reported that he had not masturbated to images of young girls in the three months prior to the evaluation, but did admit to "masturbating to images of eight to nine-year-old girls once to twice a week for three months" prior to that, and "three to four times a week eight months" before. Harris concluded that P.W. "demonstrates that he is unable to control his sexual arousal," and that it is "actually alarming[] that he has been at ADTC twice and . . . at the STU for over a decade, and he is still engaging in those behaviors that put him at high risk to sexually reoffend." During his evaluation, Harris also focused on P.W.'s reported schizophrenia, finding that "[h]e doesn't display current frank psychotic symptoms" and "[h]e denies hearing voices . . . [or that] people are trying to hurt him." The 5 A-1056-17T5 doctor noted that it has been difficult for evaluators to "understand whether he has an autism spectrum disorder or whether he has a schizophreniform disorder." Based on P.W.'s "self-report of having an arousal to girls and boys," and his actions due to his arousals, "resulting in both arrest and convictions," Harris found that P.W. "does not have the necessary volitional control," of his "sexual arousal pattern." Harris diagnosed P.W. with pedophilic disorder and schizophrenia. He explained that there is "probably a secondary characteristic of the schizophrenia [that] does interfere with some of his ability to use treatment[,]" such as being socially awkward and his poor interpersonal skills. Harris also gave P.W. a score of six on the Static-99R,2 indicating an above average risk to sexually reoffend.3 2 "The Static-99 is an actuarial test used to estimate the probability of sexually violent recidivism in adult males previously convicted of sexually violent offenses." R.F., 217 N.J. at 164 n.9. Our Supreme Court "has explained that actuarial information, including the Static-99, is 'simply a factor to consider, weigh, or even reject, when engaging in the necessary factfinding under the SVPA.'" Ibid. (quoting In re Commitment of R.S., 173 N.J. 134, 137 (2002)). 3 At the hearing, Harris pointed out a discrepancy in his report where he incorrectly stated that P.W.'s score is a three, when in fact it was a six. 6 A-1056-17T5 Canataro's report that was prepared after the TPRC examined P.W. on April 18, 2017, recommended that, despite P.W.'s more than ten years at the STU, he remain in Phase Three A, an early treatment phase. Based on a review of P.W.'s sexual offense history, clinical interview, and STU treatment notes, the TPRC concluded that P.W. "continues to demonstrate mediocre treatment gains[,]" and should continue with his current treatment program as "he remains highly likely to sexually offend if not confined to a secure facility such as the STU at this time." Canataro explained that even though the "STU entered into a court order to continue" a discharge plan to release P.W. in 2009, P.W. "consistently voices concerns of reoffending should he be placed back into the community," and thus, still remains a high risk of sexually reoffending. According to the report, P.W. should continue with his treatment plan, incorporating programming that addresses "his interpersonal style . . . to understand how others perceive him[,]" and his "emotional regulation concepts." In his statement to the judge, P.W. testified that as a child he was diagnosed with ADHD and hyperactivity, and as of 2016, he was diagnosed with autism. He spoke at length about his request to set up a structure and receive additional resources once he left ADTC, but claimed that the Department of 7 A-1056-17T5 Human Services would not help him. P.W. further stated that when he realized he was a few months from being released, he "became a little alarmed because [he] was scared . . . personally of being put back into that build up that [he] was in," knowing that parole and SSI could not assist him with his needs. He stated that his therapist told him that "even though [he did not] fit the criteria for commitment," he was going to recommend that he be committed to Ann Klein, "where they can take the responsibility of helping [him] to set up the things in which" he needed on the outside. Following this discussion, P.W. stated that he never heard anything else regarding commitment, and instead he received paperwork to sign, believing he would be discharged. P.W. claimed that the main reason he was not discharged in 2007, at his first hearing, was because he did not have the proper support set up on the outside for his release. According to P.W., there was an agreement with the Attorney General to discharge him because they believed that he "wasn’t a high risk as long as [he] had the structured support" on the outside. He pointed out that over the past eleven years since being committed, he has "tried to explain [that he] need[ed] the support, and they [kept] saying there is no support . . . ." P.W. clarified the type of support he needed, stating "when I am 8 A-1056-17T5 out there I can still remain in contact with . . . people in the Annex . . . so I can talk with them . . . [and] I can have emotional support, people to talk to when I’m feeling alone, or to get advice for when I need it." He admitted that he knows he has issues, but claimed that he feels as though the "criteria is so stacked up against [him,]" and that he is "being punished more because of [his] mental health problems [than] because of [his] sex offending problem." P.W. submitted to the court a "realistic" discharge plan that he believed would better suit his needs. He stated that "even if [he] can’t be released to the streets," he wanted to be "released to someplace which is less restrictive where they" could help him transition back to the community. He told the court that he "was supposed to get out when [he] was about 37" and was only sentenced to five years, but "now [he has done] over 16 years for [his offense]." In an oral opinion placed on the record after the presentation of the evidence, Judge O'Brien Kilgallen found by clear and convincing evidence that P.W. "has been convicted of a sexual violent offense," that he "suffers from a mental abnormality or personality disorder, namely pedophilia," that in tandem affect him "cognitively, emotionally and volitionally, which predisposes him to sexual violence" and causes him "to 9 A-1056-17T5 have serious difficulty controlling sexually violent behavior." The judge noted that the TPRC report found that P.W. should remain in Phase Three of treatment, and that "he is an individual who despite his time exposed to sex offender treatment, his deviant sexual arousal remains strong, and he chooses to continue to behaviorally reinforce this arousal at times." Judge O'Brien Kilgallen rejected P.W.'s argument regarding the third prong, finding that he offered no opposition to Harris's expert conclusion that P.W. is "highly likely to sexually reoffend and is in need of confinement." The court concluded that P.W. should remain confined at the STU. On the same day, Judge O'Brien Kilgallen entered a memorializing order continuing P.W.'s commitment and this appeal followed. On appeal,4 P.W. argues Judge O'Brien Kilgallen erred in concluding that the State met its burden of proof. P.W. contends that the judge erred in finding that the State demonstrated that he is highly likely to reoffend because the judge did not take into consideration "P.W.'s limited sex offending history" or his treatment over the past decade. P.W. 4 By agreement of the parties and with the permission of the court, the appeal was argued without briefs. We summarize the points raised by appellant based upon the presentation at oral argument. 10 A-1056-17T5 relies on In re Civil Commitment of V.A., 357 N.J. Super. 55 (App. Div. 2003), arguing that the judge should have considered whether someone "could be less than highly likely with an appropriate conditional discharge plan" before continuing their commitment in "the most restrictive environment." He contends that he "should be afforded the opportunity to participate in a lesser strict environment through the process of conditional discharge." We reject these arguments and affirm. "The scope of appellate review of a commitment determination is extremely narrow. The judges who hear SVPA cases generally are 'specialists' and 'their expertise in the subject' is entitled to 'special deference.'" R.F., 217 N.J. at 174 (citations omitted). "The SVPA authorizes the involuntary commitment of an individual believed to be a 'sexually violent predator' as defined by the Act. The definition of 'sexually violent predator' requires proof of past sexually violent behavior through its precondition of a 'sexually violent offense.'" In re Commitment of W.Z., 173 N.J. 109, 127 (2002) (citation omitted). It also requires that the person "suffer[] from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a 11 A-1056-17T5 secure facility for control, care and treatment." Ibid. (quoting N.J.S.A. 30:4-27.26). "[T]he mental condition must affect an individual's ability to control his or her sexually harmful conduct." Ibid. "Inherent in some diagnoses will be sexual compulsivity (i.e., [pedophilia]). But, the diagnosis of each sexually violent predator susceptible to civil commitment need not include a diagnosis of 'sexual compulsion.'" Id. at 129. The same standard that supports the initial involuntary commitment of a sex offender under the SVPA applies to the annual review hearing. See In re Civil Commitment of E.D., 353 N.J. Super. 450, 452-53 (App. Div. 2002). As noted earlier, in either case, "'the State must prove by clear and convincing evidence that the individual has serious difficulty controlling his or her harmful sexual behavior such that it is highly likely that the person will not control his or her sexually violent behavior and will reoffend.'" W.Z., 173 N.J. at 133-34. As the fact finder, while "[a] trial judge is 'not required to accept all or any part of [an] expert opinion[,]'" he or she may "place[] decisive weight on [the] expert." R.F., 217 N.J. at 156, 174 (second alteration in original) (citation omitted). Furthermore, "an appellate court should not modify a trial court's determination either to commit or release an individual 12 A-1056-17T5 unless 'the record reveals a clear mistake.'" Id. at 175 (quoting In re D.C., 146 N.J. 31, 58 (1996)). We find no clear mistake on this record. The parties did not dispute, and the record amply supports, Judge O'Brien Kilgallen's finding that P.W. had been convicted of a sexually violent offense and suffers from pedophilia, "a mental abnormality or personality disorder," satisfying the first two predicates for continued commitment under the SVPA. See e.g., In re Civil Commitment of D.Y., 218 N.J. 359, 381 (2014); see also R.F. 217 N.J. at 173. Based on unrefuted credible expert testimony, the judge's finding as to the third predicate that he was highly likely to reoffend was supported by evidence of P.W.'s disorders, behavior and lack of treatment progress. The judge's determination, to which we owe the "utmost deference" and may modify only where there is a clear abuse of discretion, In re J.P., 339 N.J. Super. 443, 459 (2001), was in all respects correct. Contrary to P.W.'s assertions, this was not a case where the State was "unable to justify the continued confinement of the committee based on the progress the committee" has made so as to warrant "intermediate levels of restraint." V.A., 357 N.J. Super. at 64 (quoting E.D., 353 N.J. Super. at 456). Affirmed. 13 A-1056-17T5

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Docket No.: a1169-16
Decided: 2018-07-11
Caption: MICHELLE LOMET v. LAWES COAL COMPANY
Status: unpublished
Summary:
PER CURIAM Appellant Michelle Lomet is the widow of Dennis Lomet, Sr.1 She appeals from a Division of Worker's Compensation order dismissing a petition Dennis filed after he was diagnosed with lung cancer, in which he sought worker's compensation benefits from respondent Lawes Coal Company (Lawes). The order also dismissed a dependency claim petition Michelle filed. The two petitions were consolidated for the hearing, in which the sole issue was whether the lung cancer from which Dennis died was caused by exposure to asbestos and other chemicals during his employment with Lawes. After reviewing the evidence adduced at the hearing and the applicable legal principles, we affirm for the reasons set forth in the judge of compensation's October 6, 2016 oral decision. Dennis was employed by Lawes from 1987 to 2012, when he died of lung cancer at the age of forty-seven. His job duties at Lawes were to install, remove, or repair heating and air conditioning equipment. He had never been a smoker. Before his death, he informed one of his treating physicians that he had been exposed to chemicals, soot, and asbestos in the workplace. One of Dennis's friends who worked for Lawes from 1987 through 1992 testified he believed he and Dennis were exposed to 1 To avoid confusion, we refer to Michelle Lomet as "Michelle" and Dennis Lomet, Sr., as "Dennis." We intend no disrespect by referring to these parties by their forenames. 2 A-1169-16T1 asbestos during that five year period. Michelle testified that when Dennis came home from work, she often observed him blowing his nose, and saw black material come out of his nose when he did so. In addition, he often had to shower twice in order to get clean. There was no other evidence about Dennis's alleged exposure to asbestos or other chemicals while he worked for Lawes. Michelle called William A. Lerner, M.D., as her expert oncologist. On the question of what caused the lung cancer in Dennis to develop, the substance of Dr. Lerner's testimony was: There are a lot of things out there that are . . . known carcinogens[] that are contributing to developing lung cancer. In somebody who is exposed to chemicals like that and asbestos with no other smoking history and no other known cause for his lung cancer[,] a reasonable probability of these carcinogens causing [Dennis's] lung cancer . . . is not unreasonable as a conclusion. He subsequently testified: There are lots of things that we don't know why people get certain cancers. . . . [T]here are things that we don't know that he may or may not have been exposed to that could have led to his increased risk of lung cancer. Lawes' expert oncologist, Jack Goldberg, M.D., testified that if asbestos fibers enter the lung and cause cancer, neural plaques and "B readers" are visualized on radiographical films. 3 A-1169-16T1 He noted none of these was found on Dennis's radiographical studies. Further, none of the pathological studies indicated Dennis had been exposed to asbestos. In addition, Dr. Goldberg testified the radiographical studies failed to show evidence Dennis's cancer was caused by chemical exposure. The judge found Dr. Goldberg more credible than Dr. Lerner, and concluded that even if Dennis had been exposed to asbestos or carcinogenic chemicals when he worked for Lawes, there was no objective medical evidence such exposure caused or contributed to the onset of Dennis's lung cancer. As the judge stated, this is "a case where there [is] zero medical evidence and 100% medical speculation." On appeal, Michelle argues there was sufficient evidence Dennis was exposed to asbestos or other chemicals while he worked for Lawes that led to his developing lung cancer. The scope of our review is limited. Our function is to determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge . . . their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). 4 A-1169-16T1 N.J.S.A. 34:15-31 defines a compensable occupational disease as any "disease[] arising out of and in the course of employment, which [is] due in a material degree to causes and conditions which are or were characteristic of or peculiar to a particular trade, occupation, process or place of employment." "Material degree" means "a degree substantially greater than de minimis." Fiore v. Consol. Freightways, 140 N.J. 452, 467 (1995). The burden is on a petitioner to prove his case by a preponderance of the evidence. Rivers v. Am. Radiator Standard Sanitary Corp., 24 N.J. Misc. 223, 227 (C.P. 1946). A petitioner seeking worker's compensation benefits must prove both legal and medical causation when those issues are contested. Lindquist v. City of Jersey City Fire Dep't, 175 N.J. 244, 259 (2003). Medical causation means the disability is a consequence of work exposure. Ibid. Legal causation requires proof the disability is work connected. Kasper v. Board of Trustees of Teachers' Pension and Annuity Fund, 164 N.J. 564, 591 (2000) (Coleman, J., concurring). We have examined the evidence, and concur with the judge of compensation's finding there was no evidence of substance that causally links Dennis's lung cancer to asbestos or other chemicals to which he may have been exposed while working for 5 A-1169-16T1 Lawes. Even if Dennis had come into contact with such agents, there was no evidence of the extent to which he was exposed. Further, the judge credited Dr. Goldberg's testimony, who testified that if Dennis's cancer were caused by asbestos or chemical exposure, evidence of such exposure would have but did not appear on his radiographical and pathological studies. Because the judge's findings were reached on sufficient credible evidence present in the record, we must affirm. Affirmed. 6 A-1169-16T1

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Docket No.: a1244-16
Decided: 2018-07-11
Caption: DENNIS AIELLO v. ZBIGNIEW ZAWISTOWSKI
Status: unpublished
Summary:
PER CURIAM Plaintiff Dennis Aiello appeals two Chancery Division orders granting summary judgment dismissal of his complaint against defendants, Zbigniew Zawistowski, Team Precision Auto, LLC, d/b/a Precision Chrysler Jeep Dodge Ram, a limited liability company, Bruce Wainwright, and Justin Wainwright, alleging entitlement to a fifty-percent ownership interest in Precision Chrysler Jeep Dodge Ram (the dealership).1 Because the trial court failed to properly apply the summary judgment standard by viewing the verbal agreement contention in the light most favorable to plaintiff, we reverse. In addition, Zawistowski and Team Precision Auto (collectively Team Precision) cross-appeal an order denying its motion for sanctions against plaintiff. Given our reversal that reinstates plaintiff's complaint, we affirm the order. I When reviewing an order granting summary judgment, we apply "the same standard governing the trial court." Oyola v. Xing Lan Liu, 431 N.J. Super. 493, 497 (App. Div. 2013). A court should only grant summary judgment when the record reveals "no genuine 1 The Wainwrights are father and son. 2 A-1244-16T2 issue as to any material fact" and "the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). Summary judgment should be denied when determination of material disputed facts depends primarily on credibility evaluations. Petersen v. Twp. of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011). The facts alleged by the parties should be viewed in the light most favorable to the opposing party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We accord no deference to the trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (citations omitted). Plaintiff's breach of contract claim sought a fifty-percent ownership interest in Butler Chrysler Jeep Dodge, owned by the Wainwrights, based upon an oral agreement he contended he made with Zawistowski and Bruce Wainwright in April 2011. Three months later, Butler Chrysler Jeep Dodge was acquired by Team Precision Auto, LLC, owned by Zawistowski, who renamed it Precision Chrysler Jeep Dodge Ram – without any mention of plaintiff in the final ownership documents. In December 2012, plaintiff filed for Chapter Seven bankruptcy but did not indicate he had any pending interest in the dealership or cause of actions against defendants in his filing. However, a month later, he filed a personal property amendment to 3 A-1244-16T2 include a "breach of contract suit against former business partner," for other contingent and unliquidated claims. In 2015, four years after the dealership was purchased, plaintiff filed suit asserting breach of a partnership agreement and sought: monetary damages; a declaratory judgment that he owned fifty percent of Team Precision Auto, LLC and the dealership; and an accounting of all of the dealership's earnings, profits and assets. Following discovery, the court granted defendants' summary judgment motions dismissing plaintiff's complaint.2 The court dismissed plaintiff's breach of contract claim because, in its view, there was no evidence that he had an agreement to purchase an interest in the dealership. The court reasoned: The only . . . evidence of an agreement is [plaintiff] saying, oh, I had an agreement, that's it. There is nothing else. But there's . . . absolutely not a shred of evidence in here to support the allegations of [plaintiff]. There are no material facts in dispute. . . . [H]e doesn’t even know what the terms of the agreements were. That's pretty clear from his own deposition. So the matter is dismissed, with prejudice. This matter is over. There are no material facts in dispute. 2 Two motions were filed; one by Team Precision, and the other by the Wainwrights, who have not participated in this appeal. 4 A-1244-16T2 One doesn’t get two bites of the apple, in a sense. You get [to] say something in discovery, but . . . if it doesn’t prove your cause of action, you don’t get a second chance to try it at trial. There's not a shred of evidence here to support [plaintiff's] allegation. Because the court failed to view the evidence in the light most favorable to plaintiff, it erred in granting summary judgment to defendants. Plaintiff's deposition testimony asserted sufficient facts to defeat summary judgment. He stated that in 2011, after Zawistowski declined his proposal to finance a used car business, he introduced Zawistowski to the Wainwrights, who were interested in selling Butler Chrysler Jeep Dodge. When the parties met, plaintiff contended it was agreed that Zawistowski would set up a company – eventually, Team Precision Auto, LLC – with his money to purchase the dealership and plaintiff would manage the company and have a fifty percent share of its proceeds and assets. A year later, the purchase was consummated with the dealership taking on a name, Precision Chrysler Jeep Dodge Ram. In an initial draft of the asset sale agreement and lease assignment agreement prepared by the Wainwrights' counsel, plaintiff was included as a purchaser; however, Zawistowski's counsel advised that plaintiff's name should be deleted from the documents. Plaintiff's name was not on the final ownership 5 A-1244-16T2 documents. Nevertheless, plaintiff relied upon emails with Zawistowski's counsel - not to prove the creation of a business entity with Zawistowski, but to support his assertion that there was an agreement, which stated he was a party to the acquisition of the dealership. Apparently, the court did not believe plaintiff's deposition testimony, which in deciding summary judgment – not sitting as a factfinder at trial – was an inappropriate determination of his credibility. At trial in the Chancery Division, the court as factfinder would be in a position to credit plaintiff's contentions – and discredit defendants' testimony – that he had an ownership stake in the new dealership. Additionally, while the lack of a written partnership agreement could plausibly undermine plaintiff's trial proofs, a written document is not necessary to prove the existence of an agreement. See Presten v. Sailer, 225 N.J. Super. 178, 191-93 (App. Div. 1988) (recognizing that a partnership or joint venture need not be formalized in writing, and can be inferred from conduct). Yet, there were some emails memorializing plaintiff's contention that he had an interest in the dealership. We find no merit to defendants' argument that plaintiff lacked standing and should be judicially estopped from pursuing this action due to his failure to identify this breach of contract 6 A-1244-16T2 claim when he filed for bankruptcy. The doctrine of judicial estoppel is "an equitable doctrine precluding a party from asserting a position in a case that contradicts or is inconsistent with a position previously asserted by the party in the case or a related legal proceeding." Newell v. Hudson, 376 N.J. Super. 29, 38 (App. Div. 2005) (citation omitted). First, the court did not base its grant of summary judgment on this ground considering it did not set forth any factual and legal findings; merely stating: "There's the bankruptcy issue; there's the issue of judicial estoppel." Second, less than two months after plaintiff filed his bankruptcy petition, and well in advance of filing this action, he amended it to include the within claim – even though he provided scant detail in doing so. We are likewise unmoved by the argument that plaintiff's claim is lacking because he is not a licensed car dealer or authorized by the Chief Administrator of the Motor Vehicle Commission under N.J.S.A. 39:10-19 to operate a car dealership. Nor do we find merit in the assertion that plaintiff can have no interest in the dealership because his previous convictions of theft, conspiracy, and fraud would have prevented him from obtaining a license. And, we also find no merit to the argument that plaintiff's claim is barred under the doctrine of laches because he waited until 2015 to file suit when he has known since 7 A-1244-16T2 2011 that defendants denied his claim that he had an interest in the dealership. The court addressed neither argument in granting summary judgment; as such, we do not address them. Moreover, as for laches, which "is an equitable doctrine, operating as an affirmative defense that precludes relief when there is an 'unexplainable and inexcusable delay' in exercising a right, which results in prejudice to another party," Fox v. Millman, 210 N.J. 401, 417-18 (2012) (quoting Cty. of Morris v. Fauver, 153 N.J. 80, 105 (1998)), there is no evidence that Team Precision was prejudiced by plaintiff's four-year delay in seeking judicial relief. II After defendants were granted summary judgment, a different court denied Team Precision's motion for sanctions under N.J.S.A. 2A:15-59.1 and Rule 1:4-8, for filing a frivolous action. The court found that "[p]laintiff did demonstrate there [were] some discussions with respect to the alleged agreement, and that [p]laintiff was involved in the transaction in 2011. Therefore, while [p]laintiff's case was weak, it does not give rise to frivolousness." Given our conclusion that it was error for the first court to grant summary judgment, there is no basis to disturb the denial of sanctions. Moreover, even if we approved the summary judgment dismissal of plaintiff's complaint, we would have still 8 A-1244-16T2 agreed with the denial of sanctions, as there is nothing in the record indicating the court abused its discretion. See McDaniel v. Man Wai Lee, 419 N.J. Super. 482, 498 (App. Div. 2011) (A decision to award fees "will be reversed on appeal only if it 'was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment.'") (quoting Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005)). Reversed in part, affirmed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. 9 A-1244-16T2

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Docket No.: a1399-16
Decided: 2018-07-11
Caption: IN THE MATTER OF CHERRY HILL FIRE DISTRICT NO. 13
Status: unpublished
Summary:
PER CURIAM We have been advised prior to argument that this matter has been amicably adjusted and the parties have stipulated to the dismissal of the appeal. Accordingly, the appeal is dismissed with prejudice and without costs.

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Docket No.: a1562-15
Decided: 2018-07-11
Caption: REGINALD P. GAMBLE v. PROGRESSIVE MOTION MEDICAL PRODUCT SOLUTIONS
Status: unpublished
Summary:
PER CURIAM Following a lengthy trial in this medical malpractice action, a jury determined defendant Brian Van Grouw, D.O., deviated from accepted standards of medical care when he treated plaintiff Reginald P. Gamble, but found such treatment did not proximately cause the damages plaintiff claimed arose from the alleged deviations.1 Plaintiff and his spouse, Dion M. Hopper, who asserted a per quod claim against Dr. Van Grouw, appeal from an October 29, 2015 order denying plaintiffs' motion for judgment notwithstanding the verdict, a mistrial, or new trial.2 After reviewing the evidence adduced at trial, the parties' arguments, and the applicable legal principles, we affirm. I We summarize the salient evidence. In 2009, plaintiff consulted with defendant, an orthopedic surgeon, about pain he had been experiencing in both knees. On May 13, 2009, defendant performed an arthroscopy on plaintiff's left knee to remove the 1 By the time of trial, Dr. Van Grouw was the sole defendant, plaintiff having previously settled with all other defendants. 2 For simplicity, for the remainder of this opinion the term "plaintiff" shall refer to Reginald P. Gamble only. 2 A-1562-15T4 meniscus. Following surgery, defendant prescribed a cryotherapy device (device) for plaintiff to use at home to help control post-surgical pain and swelling. When in use, cold water from the device flowed across plaintiff's bandaged knee. Defendant testified that both he and his staff instructed plaintiff to use the device continuously during the first seventy-two hours following surgery and, thereafter, as needed to control any pain or swelling. In addition, in general he advises all patients using the device to contact him if any "issues" arise with respect to "drainage, redness, warmth." Plaintiff testified he used the device continuously during seventy-two hours immediately following surgery and as necessary thereafter. Starting with the third day following surgery, plaintiff used the machine every other hour for an hour. On May 18, 2009, the fifth day following surgery, plaintiff began to feel numbness in his knee. Because he was also experiencing what he believed was an abnormal amount of swelling and bleeding, plaintiff contacted and saw defendant in his office that day. According to defendant's office notes, plaintiff complained of having a lot of pain in his knee, swelling, and some bleeding. Defendant testified fluid had accumulated in plaintiff's knee, making it appear swollen, a common post- 3 A-1562-15T4 operative occurrence. It is not disputed defendant aspirated the fluid from the knee and instructed plaintiff to return in a week for another checkup. On May 26, 2009, plaintiff returned to defendant's office for the scheduled follow-up visit, during which defendant's office notes reflect fluid had again accumulated in the knee. Defendant again drained the knee, but testified the knee "appeared to be good," and that there was nothing that made him "overly concerned." Plaintiff testified his knee was still painful at that second office visit and that defendant advised him to continue using the cryotherapy device as needed for pain. On June 4, 2009, plaintiff returned to defendant's office for a follow-up visit. Defendant's office notes reflect plaintiff was complaining of "a lot" of pain, tenderness, and swelling. Plaintiff testified there was "dark black skin" and blisters forming on his knee; defendant's office notes do not mention changes in plaintiff's skin color or the presence of blisters. Defendant testified he found a small amount of fluid in the knee, which he did not consider to be abnormal. He directed plaintiff to attend physical therapy because the muscles around the knee had grown weak and stiff from lack of use. 4 A-1562-15T4 On June 12, 2009, plaintiff called defendant's office seeking renewal of a prescription for pain medication. Defendant's office notes indicate plaintiff reported he was "doing better" and that physical therapy was "going well." However, on June 20, 2009, plaintiff went to an emergency room because he was experiencing increased knee pain and nausea; he was subsequently admitted into the hospital, where he remained until August. Defendant did not treat plaintiff after June 20, 2009. At the time of his admission, significant eschar was noted to have formed over a wound on plaintiff's knee; eschar is dead, necrotic tissue. Two days after plaintiff's admission, the eschar was surgically debrided3 in an effort to induce new skin to grow. However, the wound over plaintiff's knee did not heal, and additional eschar developed and had to be removed. Subsequent testing and additional surgical procedures revealed the bones and joints of plaintiff's knee were deteriorating as the result of osteomyelitis, an infection of the bone. In fact, there was concern plaintiff would lose his leg. When plaintiff was discharged in August, the fate of his leg was still uncertain. Eventually, his treating physicians 3 Debridement is the removal of damaged tissue or foreign objects from a wound. Stedman's Medical Dictionary 496 (28th ed. 2006). 5 A-1562-15T4 were able to salvage the leg by fusing plaintiff's knee. Plaintiff filed a medical malpractice complaint against defendant, alleging he committed various deviations from accepted standards of medical care during the period immediately following the arthroscopy. Plaintiff further contended that as a proximate result of such deviations, he was forced to and will endure pain and suffering, including but not limited to the fusion of his knee. During trial, each party called various medical experts on the issue of liability and damages. The most sharply contested issue was proximate causation. We address this issue first because not only was it the most controversial, it also puts the alleged deviations into perspective. One of plaintiff's liability experts, orthopedist Stephen H. Marcus, M.D., opined the device caused a thermal injury or "freezer burn" to plaintiff's knee, and did so within the first seventy-two hours of the arthroscopy. Marcus claimed plaintiff's complaints during the post-operative period were caused by the thermal injury, and opined the skin over plaintiff's knee likely exhibited a change in appearance that defendant failed to recognize. The expert opined that had defendant properly examined plaintiff on June 4, 2009, he would have noted, consistent with 6 A-1562-15T4 plaintiff's observations at that time, signs consistent with a thermal injury, specifically, blistering of the skin and the start of the formation of eschar, which is black in color. Marcus did not state what steps defendant could or should have taken had he recognized plaintiff sustained the alleged thermal injury during the post-operative visits. Marcus concluded plaintiff ultimately required a fusion of his knee for the following reason. The thermal injury destroyed the skin on plaintiff's knee, requiring surgical procedures to debride the dead tissue. While recuperating in the hospital from such procedures, although bandaged, plaintiff's knee was exposed to certain bacteria found in hospital environments. Such bacteria invaded the wound and subsequently penetrated the bones of plaintiff's knee. The bacteria caused osteomyelitis, which destroyed the bones in plaintiff's knee, necessitating a fusion. Arnold Lentnek, M.D., plaintiff's infectious disease expert, similarly opined plaintiff sustained a thermal injury caused by the cold water the device circulated over plaintiff's knee, and that such injury likely occurred within seventy-two hours of the arthroscopy. He also stated the thermal injury destroyed the tissue around the knee and, while plaintiff was in the hospital recuperating from procedures to treat such injury, 7 A-1562-15T4 bacteria entered the wound and eventually infiltrated the bones in plaintiff's left knee, necessitating the fusion. Plaintiff's experts testified defendant's principal deviations from the standard of care were his failure to: (1) review the FDA label on the device, which warned it may cause frostbite, before prescribing the device to plaintiff; (2) warn plaintiff he might suffer a thermal injury as a result of using the device; (3) personally instruct plaintiff on how to use the device, instead of relegating such task to his staff; (4) advise plaintiff he should not use the device continuously for seventy- two hours; (5) advise plaintiff to contact him if the skin over his knee became red or the sensitivity of the skin changed; and (6) recognize plaintiff had sustained a thermal injury during the post-operative office visits and advise plaintiff to suspend the use of the device. On the issue of proximate cause, Michael McIlroy, M.D., defendant's infectious disease expert, opined that when plaintiff went to the emergency room on June 20, 2009, he was suffering from bullous cellulitis, a blistering form of infection of the skin. McIlroy pointed out that, early in his admission, tissue removed from plaintiff's left knee was analyzed and revealed the presence of inflammatory cells. He 8 A-1562-15T4 testified such findings showed an infection was present and is not indicative of a thermal injury. In addition, he noted the tissue was sent to a microbiology laboratory, where a gram stain revealed gram-positive cocci were infiltrating the tissue of plaintiff's knee. McIlroy testified such results were "one hundred percent" proof plaintiff's knee was not only infected, but significantly so. He stated the morphology of the cocci was highly consistent with Staphylococcus aureus (staph aureus), an "aggressive" infection capable of causing the damage to plaintiff' knee. He also mentioned eschar forms when one has bullous cellulitis. McIlroy further testified the infection in plaintiff's knee was going to occur regardless of plaintiff's use of the device; in fact, he opined in all probability the cool water from the device kept the infection localized, retarding it from spreading up and down plaintiff's leg. McIlroy also noted there were some systemic signs of infection when plaintiff appeared in the emergency room. For example, although plaintiff's white blood count was normal, neutrophils, the cells that fight bacteria, were elevated and very suggestive of infection. Orthopedist Joseph Bosco, M.D., defendant's expert on deviation, conceded defendant deviated from accepted standards of medical care if he failed to warn plaintiff there was a risk 9 A-1562-15T4 he might sustain a thermal injury if he used the device. Bosco also testified defendant deviated if he did not instruct plaintiff on how to use the device and to look for redness, blisters, and increased pain. Otherwise, according to Bosco, defendant did not deviate from accepted standards of medical care. Bosco further testified it is more likely than not plaintiff did sustain a thermal injury from the device, although added he was not convinced plaintiff did so to a "medical certainty." However, Bosco did not opine such injury was the proximate cause of the subsequent injuries and damages plaintiff claims in this matter. As previously stated, the jury found defendant deviated from accepted standards of medical care, but found such deviations were not a proximate cause of his injuries. Following the verdict, plaintiff filed a motion requesting judgment notwithstanding the verdict, a mistrial, or new trial. The trial court denied the motion and this appeal ensued. There was additional evidence adduced and some procedural developments that arose during the trial relevant to the issues on appeal. For brevity and clarity, we summarize such evidence and developments when we address the particular argument to which they pertain. 10 A-1562-15T4 II On appeal, defendant reprises for our consideration the following arguments asserted in his post-trial motion before the trial court: POINT I: THE TRIAL COURT COMMITTED HARMFUL ERROR BY FAILING TO SUBMIT SEPARATE JURY INTERROGATORIES AS TO EACH ALLEGED DEVIATION FROM ACCEPTED STANDARDS OF PRACTICE ON THE PART OF DEFENDANT, INCLUDING (A) FAILURE TO WARN, (B) FAILURE TO PROPERLY INSTRUCT, AND (C) FAILURE TO TIMELY DIAGNOSE AND TREAT PLAINTIFF'S THERMAL INJURY. POINT II: THE TRIAL COURT COMMITTED HARMFUL ERROR BY REFUSING TO INCLUDE AN INFORMED CONSENT JURY CHARGE. A. THE TRIAL COURT COMMITTED HARMFUL ERROR BY REFUSING TO INCLUDE AN INFORMED CONSENT JURY CHARGE INSOFAR AS THE LEARNED INTERMEDIARY DOCTRINE WAS RULED TO APPLY AS A MATTER OF LAW. B. THE TRIAL COURT COMMITTED HARMFUL ERROR BY REFUSING TO INCLUDE AN INFORMED CONSENT JURY CHARGE SINCE THE PLAINTIFF PROVIDED AN ADEQUATE EVIDENTIAL FOUNDATION IN SUPPORT OF SUCH CHARGE. POINT III: SINCE THE DOCTRINE OF INFORMED CONSENT SHOULD HAVE BEEN CHARGED TO THE JURY, THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING PLAINTIFF'S MOTION TO BAR ANY REFERENCES AS TO THE DOCTRINE OF AVOIDABLE CONSEQUENCES. POINT IV: THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING PLAINTIFF'S MOTION FOR PARTIAL JUDGMENT REGARDING DEFENDANT'S 11 A-1562-15T4 FAILURE TO OBTAIN PLAINTIFF'S INFORMED CONSENT. POINT V: THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING PLAINTIFF'S MCKENNEY MOTION WHEREIN A CURATIVE INSTRUCTION WAS REQUESTED BASED UPON THE DEFENDANT'S MATERIAL CHANGE IN TESTIMONY. POINT VI: THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING PLAINTIFF'S MOTION FOR A MISTRIAL BASED UPON THE JURY'S MISCONDUCT AND FAILURE TO FULLY AND FAIRLY DELIBERATE. We separately address each contention. A During its final charge to the jury, the court instructed: When a physician prescribes a medical device approved by the [FDA], the prescribing physician assumes a duty from a manufacturer of a device to warn patients of known potential risks associated with the use of the device. The court has found as a matter of law that it was solely the defendant's legal duty to inform and warn the plaintiff, Reginald Gamble, regarding the cryotherapy devices. Next, I'm going to move on to a discussion of duty and negligence. Plaintiffs . . . contend that the defendant . . . was [1] negligent in failing to properly warn and inform the plaintiff regarding the cryotherapy device, [2] negligent in instructing the plaintiff on the usage of the cryotherapy device, and [3] negligent in the failure to diagnose and threat the alleged thermal injury of plaintiff . . . . 12 A-1562-15T4 On the issue of deviation and proximate causation, the verdict sheet instructed the jury to answer the following two interrogatories: 1. Have the plaintiffs proven by a preponderance of the evidence that the defendant, Brian Van Grouw, D.O., deviated from accepted standards of medical practice? 2. Have the plaintiffs proven by a preponderance of the evidence that said negligence was a proximate cause of injury to the plaintiff Reginald P. Gamble? The jury answered "yes" to the first and "no" to the second question. Plaintiff did not object to the charge, but did object to the fact that the three deviations set forth in the charge were not broken down into three separate questions on the verdict sheet. On appeal, he argues the verdict was ambiguous because, in answering the first of the two questions cited above, it is not known which of the three alleged deviations the jury found. Plaintiff further contends the verdict on deviation was "inherently inconsistent and contradictory" when compared to the verdict on proximate cause. Plaintiff's complaint about the alleged deficiency of the verdict sheet is confined to the allegation defendant deviated by failing to diagnose and treat a thermal injury. 13 A-1562-15T4 Plaintiff argues that if the jury found defendant deviated because he failed to treat and diagnose a thermal injury, then the jury inherently found plaintiff did sustain a thermal injury and, therefore, "the jury's final determination as to proximate cause was completely contradictory to its finding of [deviation]. . . . As such, . . . the trial court's ambiguous and incomplete interrogatories were clearly capable, and did in fact, produce an unjust result in the form of a completely inconsistent jury verdict." We disagree. "[A] trial court's interrogatories to a jury are not grounds for a reversal unless they were misleading, confusing, or ambiguous." Sons of Thunder v. Borden, 148 N.J. 396, 418 (1997). Further, when "reviewing an interrogatory for reversible error," the interrogatory should be "consider[ed] . . . in the context of the [jury] charge as a whole," as "[a]n accurate and thorough jury charge often can cure the potential for confusion that may be present in an interrogatory." Ponzo v. Pelle, 166 N.J. 481, 491 (2001) (citing Thunder, 148 N.J. at 415-20). First, we note that, although there was evidence from plaintiff's experts that defendant deviated because he allegedly failed to recognize the signs of thermal injury, there was no evidence about the treatment defendant was required to 14 A-1562-15T4 administer once such injury manifested itself, other than to advise plaintiff to suspend using the cryotherapy device. Second, and more important, even if plaintiff sustained a thermal injury, the jury found such injury was not a proximate cause of his damages. Plaintiff contended a thermal injury caused the tissue around his knee to deteriorate, the reason he went to the hospital on June 20, 2009. Then, while in the hospital for treatment of such condition, he contracted an infection that caused him to develop osteomyelitis. The osteomyelitis in turn caused the destruction of the bones in his knee, necessitating a fusion. Defendant, on the other hand, contended the problem plaintiff was having with his knee when he entered the hospital was not caused by a thermal injury but by bullous cellulitis, an aggressive form of infection. Defendant claims this particular infection, not a thermal injury, proximately caused plaintiff's damages. In our view, there was ample evidence for the jury to find plaintiff's injuries were caused by bullous cellulitis. The jury was at liberty to reject the evidence plaintiff introduced in support of his claim the proximate cause of his damages was a thermal injury. Accordingly, even if the jury found defendant deviated from accepted standards of medical care by failing to 15 A-1562-15T4 diagnose and treat a thermal injury, it is obvious from its answer to the second question on the verdict sheet the jury determined such injury was not a proximate cause of plaintiff's damages. B Defendant next contends the trial court erred when it declined to charge the jury on informed consent. Defendant argues that, because the learned intermediary doctrine4 applied and he provided sufficient evidence thermal injury is a risk of using the subject device, the court was obligated to charge the jury on informed consent. He maintains the trial court's refusal to "include an informed consent charge was not only inconsistent, but also clearly prejudicial to the plaintiffs[,]" 4 Because a physician functions as an intermediary between manufacturer and consumer, under the learned intermediary doctrine, "a pharmaceutical manufacturer generally discharges its duty to warn the ultimate user of prescription drugs by supplying physicians with information about the drug's dangerous propensities." Niemiera by Niewmiera v. Schneider, 114 N.J. 550, 559 (1989). Just before trial, the court determined such doctrine applied in this matter. As indicated by the excerpt from the jury charge recited above, consistent with its ruling, the court instructed the jury that "[t]he court has found as a matter of law that it was solely the defendant's legal duty to inform and warn the plaintiff, Reginald Gamble, regarding the cryotherapy devices." 16 A-1562-15T4 especially given defendant admitted he did not warn plaintiff of the risk of thermal injury. We disagree. "[A] patient has several avenues of relief against a doctor: (1) deviation from the standard of care (medical malpractice); (2) lack of informed consent; and (3) battery." Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 545 (2002) (citing Colucci v. Oppenheim, 326 N.J. Super. 166, 180 (App. Div. 1999)). "Although each cause of action is based on different theoretical underpinnings, 'it is now clear that deviation from the standard of care and failure to obtain informed consent are simply sub-groups of a broad claim of medical negligence.'" Ibid. (quoting Colucci, 326 N.J. Super. at 180). To prove a physician was negligent premised upon a theory of lack of informed consent, a plaintiff must show: (1) the physician failed to comply with the applicable standard for disclosure; (2) the undisclosed risk occurred and harmed the plaintiff; (3) a reasonable person under the circumstances would not have consented and submitted to the operation or surgical procedure had he or she been so informed; and (4) the operation or surgical procedure was a proximate cause of plaintiff's injuries. [Newmark-Shortino v. Buna, 427 N.J. Super. 285, 304 (App. Div. 2012) (quoting Teilhaber v. Greene, 320 N.J. Super. 453, 465 (App. Div. 1999)).] 17 A-1562-15T4 Here, the "procedure" at issue was the use of the cryotherapy device, and the undisclosed risk was thermal injury. In light of the jury's determination defendant's deviations from accepted standards of medical care were not the proximate cause of his damages, the court's failure to charge the jury on informed consent was entirely harmless and clearly not capable of producing an unjust result. See R. 2:10-2 ("Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ."). As is evident from the jury's verdict, neither a thermal injury nor the procedure was deemed a proximate cause of plaintiff's injuries. C Plaintiff contends the doctrine of avoidable consequences did not apply in this matter. The doctrine of avoidable consequences "provides that, in instances in which a defendant has committed an actionable wrong, damages flowing from that wrong will be precluded to the extent that they could have been averted by an exercise of reasonable care by the injured party." Geler v. Akawie, 358 N.J. Super. 437, 458 (App. Div. 2003). In his brief before us, plaintiff claims defendant made "numerous references to the plaintiff's alleged misuse of the 18 A-1562-15T4 cryotherapy device and alluded to his 'responsibility' regarding same. These references were entirely inappropriate and clearly prejudicial to plaintiffs." With one exception, contrary to Rule 2:6-2(a)(5), plaintiff fails to provide citations to the record in support of his assertion defendant made numerous comments that plaintiff had misused the device. In the one instance for which he does provide a citation to the trial transcript, the record reveals defense counsel asked plaintiff if he agreed it was his responsibility to read and fully understand the instructions that came with the cryotherapy device. Plaintiff's counsel immediately objected and the court sustained the objection. Defendant then withdrew the question. We are fully satisfied plaintiff was not in any way prejudiced by this question. Further discussion on this point is unnecessary. D Plaintiff contends the trial court erred when it denied his motion for a mistrial. Plaintiff had contended a juror engaged in misconduct and failed to fully and fairly deliberate. The details are as follows. The jury began its deliberations at 2:18 p.m. on April 21, 2015 and was discharged for the day at approximately 4:30 p.m. 19 A-1562-15T4 The jury resumed deliberations the following day at 9:20 a.m. At approximately 11:01 a.m., the court asked through court staff if the jury wanted a recess; the jury responded it needed "five more minutes." At 11:08 a.m., juror six caught the court clerk's attention by opening the door of the jury room. The juror informed the clerk she had just learned her son had been arrested and was "really upset." The juror retreated to the jury room with the rest of the jurors. While the jury remained in the jury room, the court discussed with counsel how best to proceed. The court determined the jury would take a break and, in the meantime, the court and counsel would bring juror six into chambers to discuss her problem. The court then brought the jury out to the court room and asked if it was ready for a break. A juror replied the jury had reached a verdict. The jury remained in the court room and the court took the verdict. After the jury was discharged but before counsel left the court room, plaintiff's counsel requested a mistrial because, "clearly [juror six] had her cell phone accessible and was, at minimum, receiving a call or looking at text messages. . . . And the timing of that all was really in close connection with this jury's verdict." In a brief he subsequently filed, 20 A-1562-15T4 plaintiff argued juror six's access to the electronic device tainted the jury deliberation process and invalidated the integrity of the verdict. We note that, at the outset of the trial, the jury was instructed that while in the jury room, all cell phones and other communication devices had to be turned off. The jury was advised it would be given a telephone number at which a juror could be contacted during the trial, if need be. The trial court denied the motion for a mistrial, finding: While it does indeed appear that juror number six accessed an electronic device from which she learned about her son's crisis, the event did occur contemporaneous to the conclusion of the deliberations. One must carefully analyze the timing. . . . [I]t is clear that juror number six merely put on her device after the deliberations were complete. . . . [B]etween 11:08 a.m. and 11:14 a.m., juror [six] informed [the court] of the issue. A sidebar conference was held regarding the issue and before the discussion was completed, the jury returned their verdict. The jury was then polled and dismissed at 11:14 a.m. It is intuitive that in the six minutes at issue there could be no opportunity for juror number six to influence the other jurors. There simply was inadequate time to do so. Thus, one must come to no other conclusion that the deliberations were complete after which juror number six accessed her device. One must also come to the conclusion that the jurors were at the end of the deliberative process when they requested a few minutes more. It is 21 A-1562-15T4 certainly reasonable, observing the process as a whole, to find the jury was merely completing the final form when juror number six put on her cell phone and received her distressing news. The deliberations were completed at that point. The court also noted plaintiff did not object to receiving the verdict when the jury advised the court it had a verdict, and did not request, before the jury was discharged, further exploration into when juror six received the news of her son's arrest in relation to when the jury concluded its deliberations. On appeal, plaintiff argues the trial court abused its discretion by denying his motion for a mistrial, contending the "events clearly evidence[]" juror six learned of her son's arrest only a short time before the jury reached its verdict. Plaintiff asserts because she was in a state of stress, juror six was unable to properly deliberate and may have rushed to conclusions on some of the issues just to hasten deliberations. "The grant of a mistrial is an extraordinary remedy that should be exercised only to prevent manifest injustice." Belmont Condo. Ass'n, Inc. v. Geibel, 432 N.J. Super. 52, 97 (App. Div. 2013) (citing State v. Ribalta, 277 N.J. Super. 277, 291 (App. Div. 1994)). "Whether manifest necessity mandates the grant of a mistrial depends on the specific facts of the case and the sound discretion of the court." State v. Allah, 170 22 A-1562-15T4 N.J. 269, 280 (2002) (citing State v. Loyal, 164 N.J. 418, 435 (2000)). In addition, when the basis for the requested mistrial is alleged juror misconduct, the trial court is in the best position to gauge the effect of the alleged juror impropriety and defer to its decision on a motion for a mistrial. State v. Harvey, 151 N.J. 117, 205 (1997). In our view, the trial court did not abuse its discretion when it denied plaintiff's motion for a mistrial. The court carefully reviewed the timing of how events unfolded and determined it unlikely the verdict was reached after juror six accessed her phone. We agree with the court's assessment and conclusions, and affirm its decision on plaintiff's motion for the reasons set forth in its opinion. E We have considered plaintiff's remaining argument points, and have determined they are without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E). Affirmed. 23 A-1562-15T4

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Docket No.: a1841-16
Decided: 2018-07-11
Caption: ORANGE SENIOR CITIZENS RESIDENCE, LLC v. PAULETTE DAVIS
Status: unpublished
Summary:
PER CURIAM In this summary dispossess action, defendant-tenant Paulette Davis appeals from the Special Civil Part's December 12, 2016 Judgment of Possession entered in favor of her landlord, plaintiff Orange Senior Citizens Residence, LLC, pursuant to N.J.S.A. 2A:18-61.1(c), which permits the removal of a tenant who has willfully or by reason of gross negligence caused or allowed destruction, damage, or injury to the premises. Defendant argues that the trial judge failed to make "the requisite findings . . . as to how [d]efendant's conduct met the elements of gross negligence necessary to support the entry of judgment under N.J.S.A. 2A:18-61.1(c)." Because we conclude defendant's conduct did not meet the requirements of N.J.S.A. 2A:18-61.1(c), we reverse. The following facts are summarized from the bench trial conducted on December 7 and December 12, 2016, and are generally undisputed. Plaintiff is the owner and operator of the "federally subsidized housing complex" where defendant has lived since 2003. The complex's 132 housing units are available for lease to elderly tenants. Defendant is currently sixty-eight years old. She developed epilepsy at age three, and, as a result, suffers from depression and memory loss. In 1991, she underwent a "right temporal lobectomy," which further exacerbated her memory loss. 2 A-1841-16T3 On October 3, 2016, at approximately 12:30 a.m., a security guard at the complex noticed water flooding the stairs of the facility and notified the building superintendent, Lincoln Johnson. They traced the water back to defendant's second-floor apartment and found she had fallen asleep with her kitchen faucet running into a stopped sink, flooding her apartment. At the time, no one else was present in her apartment. The overflowing water damaged the sink, tiles, and countertops in defendant's apartment. The water also flooded an adjacent unit and a nearby staircase, and seeped through the floor of the flooded areas, damaging the ceiling tiles in the community room below and causing the ceiling to collapse "on top of a lot of the furniture area." On October 20, 2016, plaintiff served defendant with a Notice to Quit and Demand for Possession (Notice) as required by the Anti-Eviction Act, N.J.S.A. 2A:18-61.2, which terminated her tenancy as of October 24, 2016. The Notice stated that on October 3, 2016, defendant caused damage to the premises "by reason of gross negligence" as a result of "water overflowing from [her] kitchen sink faucet while unattended." Defendant failed to vacate the unit by the termination date, and on October 25, 2016, plaintiff filed a complaint for possession. 3 A-1841-16T3 Defendant responded in a November 14, 2016 letter requesting "a reasonable accommodation" pursuant to the federal Fair Housing Amendments Act (FHAA), 42 U.S.C. §§ 3601 to 3619. According to her letter, defendant suffered from "depression and memory loss as a result of her epilepsy." She requested plaintiff remove her stove to accommodate her disability and "to prevent a fire hazard in the apartment and protect [plaintiff's] property." She also asked plaintiff to replace her "standard continuous-flow faucet" with a "Pillar Tap Metering Faucet," which "requires the user to push down on the meter to activate the flow of water" and stops automatically after a few seconds to "guarantee[] that the kitchen sink will not over-flow." Plaintiff denied defendant's request. At trial, plaintiff presented the testimony of superintendent Johnson and its property manager, Nereida Nieves, both of whom described the extent of the damage defendant caused to plaintiff’s property in detail.1 Nieves also testified about three prior incidents in which the toilets in defendant's 1 Damages are not at issue in this appeal. 4 A-1841-16T3 apartment overflowed because "she dropped an object in the toilet."2 Following the bench trial, the judge entered the judgment of possession in plaintiff’s favor. The judge acknowledged that plaintiff "testified credibly" that "flooding . . . emanated from [defendant's] apartment" on October 3, 2016 from "an overflowing sink." According to the judge, for "quite some time," defendant had left the faucet "open," "running on full blast," and "unattended" with "a stopper in the sink." The judge referenced the photographs admitted into evidence depicting the extent of the damage as well as the testimony verifying "what was required to clean up the apartment." The judge also acknowledged defendant's medical condition and "memory issues" as well as "past problems . . . resulting in an overflow of the toilet on several prior occasions." The judge concluded that plaintiff proved "by a preponderance of the evidence," that "[defendant's] inattention" constituted "gross 2 Defendant objected to the testimony of other incidents on the ground that they were not cited in the Notice. The judge overruled the objection. We note that the Anti-Eviction Act "reflects a public policy barring dispossess actions except upon strict compliance with the notice and procedural requirements of the Act," regardless of whether "the landlord has acted in good faith or the tenant has not been prejudiced." 224 Jefferson St. Condo. Ass'n. v. Paige, 346 N.J. Super. 379, 383 (App. Div. 2002). 5 A-1841-16T3 negligence," which "caused or allowed" "damage to the facility," and "that her presence in [the] apartment constitute[d] something of a risk" to justify removal pursuant to N.J.S.A. 2A:18-61.1(c).3 The judge stayed the issuance of the warrant of removal pending appeal, and this appeal followed. In reviewing the trial judge's determination, we accord substantial deference to the judge's special role as a fact finder. See Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974) (instructing that a trial court's findings are generally binding on appeal "when supported by adequate, substantial and credible evidence"). Such "[d]eference is especially appropriate when the evidence is largely testimonial and involves questions of credibility." Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). That said, we afford no special deference to "[a] trial court's interpretation of the law and the legal consequences that flow 3 The court also rejected defendant's claim that her disability resulting from "her memory loss and epileptic condition" was a defense to the removal and "entitled" her "to a reasonable accommodation." The court determined that such an accommodation was not required under federal law because it "would fundamentally alter the nature of the provider's operations" by "changing unsupervised senior adult housing into supervised senior adult housing." In light of our disposition of this appeal, we need not address that issue. 6 A-1841-16T3 from established facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). The Anti-Eviction Act prohibits a landlord from evicting a residential tenant except upon the establishment of good cause. N.J.S.A. 2A:18-61.1. Under N.J.S.A. 2A:18-61.1(c), good cause for removal may be established if the landlord demonstrates by a preponderance of the evidence that the tenant "has willfully4 or by reason of gross negligence caused or allowed . . . damage . . . to the [landlord's] premises." "The legislative intent of N.J.S.A. 2A:18-61.1(c) requires actual damage to the landlord's property for there to be a cause of action for eviction." Les Gertrude Assocs. v. Walko, 262 N.J. Super. 544, 549 (App. Div. 1993). Gross negligence is defined as "conduct that comes somewhere between 'simple' negligence and the intentional infliction of harm, or, 'willful misconduct.'" Ivy Hill Park Section III v. Smirnova, 362 N.J. Super. 421, 425 (Law Div. 2003) (quoting Clarke v. Twp. of Mount Laurel, 357 N.J. Super. 362, 370 (App. Div. 2003)). It requires "indifference to consequences," Banks v. Korman Assocs., 218 N.J. Super. 370, 373 (App. Div. 1987), and has also been defined as "reckless 4 Plaintiff did not allege willful conduct on defendant's part. 7 A-1841-16T3 disregard of the safety of others." In re Kerlin, 151 N.J. Super. 179, 185 (App. Div. 1977) (quoting State v. Linarducci, 122 N.J.L. 137, 137 (Sup. Ct.), aff’d, 123 N.J.L. 228 (E & A 1939)). Therefore, at trial, a landlord must prove that its tenant not only caused damage, but did so through conduct that amounts to more than simple negligence. This construction of N.J.S.A. 2A:18-61.1(c), requiring more culpability than ordinary negligence in the tenant's actions or inactions, is consistent not only with the text of that provision, but with the general legislative policies of the Anti-Eviction Act, N.J.S.A. 2A:18-53 to -84. "[T]he dominating principle in construing the Act [is] that it must be construed liberally with all doubts construed in favor of a tenant. . . ." 224 Jefferson, 346 N.J. Super. at 389. In Muros v. Morales, 268 N.J. Super. 590, 597 (App. Div. 1993), we found the requisite level of culpability required in N.J.S.A. 2A:18-61.1(c) where a tenant drilled holes in the floor in order to gain access to electric current from her landlord's basement outlets. In that same vein, in Stuyvesant Associates v. Doe, 221 N.J. Super. 340, 343 (Law Div. 1987), a schizophrenic tenant who failed to take his medication damaged his own apartment by spray-painting appliances and windowsills 8 A-1841-16T3 and damaged the door of another tenant with a hammer. The court found that failing to take his medication constituted gross negligence to satisfy the statutory mandate and provide a basis for removal because the tenant knew that he became psychotic and delusional when he failed to medicate himself. Id. at 343-44. In Ivy Hill, 362 N.J. Super. at 424-25, a tenant fell asleep while boiling his urine to use on his back to alleviate back pain, emitting a noxious odor into the building air. Although it found "that putting something on a cooking range, or in an oven, or the like, when one is so tired as to fall asleep (as [the] defendant did) constitute[d] gross negligence," the court concluded that emitting a noxious odor did not constitute destruction, damage, or injury to the landlord's premises as required under the statute. Id. at 425-27. Applying these principles to the evidence in this record, we are satisfied that plaintiff failed to establish by a preponderance of the evidence that defendant's conduct was "grossly negligent" to meet the requirements of N.J.S.A. 2A:18- 61.1(c), and the judge's contrary conclusion was erroneous. While falling asleep after midnight and forgetting to turn off the water when the stopper was in the sink was clearly negligent, given defendant's medical condition, her conduct did not rise to the level of gross negligence in the circumstances 9 A-1841-16T3 of this case. Indeed, her request that plaintiff replace her faucet with a "Pillar Tap Metering Faucet" to avoid such an occurrence in the future demonstrates concern rather than "indifference to consequences[.]" Banks, 218 N.J. Super. at 373. In light of our decision, we need not address defendant's argument, raised for the first time on appeal, that entry of the judgment of possession contravened the Senior Citizens and Disabled Protected Tenancy Act, N.J.S.A. 2A:18-61.22 to -61.39. The judgment of possession is vacated, and the matter is remanded for entry of an order dismissing the complaint with prejudice. We do not retain jurisdiction. Vacated and remanded. 10 A-1841-16T3

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Docket No.: a5113-14
Decided: 2018-07-11
Caption: S.A. v. NEW JERSEY DEPARTMENT OF EDUCATION
Status: unpublished
Summary:
PER CURIAM Plaintiff S.A.1 appeals from the June 2, 2015 order dismissing her second amended complaint against defendant New Jersey Department of Education (DOE), following the jury's verdict in favor of DOE. We affirm. I Plaintiff filed suit against DOE in 2011. Following amendment, the complaint alleged violations of the New Jersey Family Leave Act (FLA), N.J.S.A. 34:11B-1 to -16 (Count One); the Family Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2654 (Count Two); the New Jersey Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14 (Count Three); the New Jersey Law Against Discrimination (LAD)- perceived disability, N.J.S.A. 10:5-1 to - 49, (Count Four); and the public policy of the State of New Jersey (Count Five). It also alleged retaliation under LAD (Count Six) and retaliation under the FLA (Count Seven). Plaintiff claimed she was retaliated against for her use of family medical leave. She sought judgment for compensatory damages, lost wages, emotional distress, punitive damages and attorney's fees. Counts One (FLA), Two (FMLA) and Five (public policy) were dismissed with prejudice in February 2015, by an order granting 1 We use initials for privacy purposes because part of the record is referenced as a confidential appendix. 2 A-5113-14T3 DOE summary judgment. Plaintiff does not appeal the order. 2 The case was tried to a jury for sixteen days in April and May 2015, on the remaining counts. On June 2, 2015, the jury returned a verdict in favor of DOE. An order dismissing the case was entered the same day. Plaintiff is an educational program development specialist (educational specialist) employed by DOE. Her mother, who lived a distance away in western New York State, suffered a major stroke in March 2008. Plaintiff traveled back and forth from New Jersey to assist with her care. She exhausted her paid leave in 2008, and then used unpaid leave. In February 2009, she was assigned to DOE's Bergen County Office when the East Orange Office closed. Two other educational specialists, Norah Peck and Pernell Brice, were assigned to the Bergen office after her. They had office space near plaintiff. Plaintiff previously worked with Peck and had a "friendly" relationship with her. In 2009, plaintiff exhausted her paid leave time again and used unpaid "voluntary furlough." Her requests to use "intermittent family leave" under the FLA were approved. Dr. Aaron Graham, plaintiff's supervisor in the Bergen office, 2 The CEPA claim in Count Three was dismissed by the court shortly before trial after plaintiff elected to proceed with the LAD perceived disability and retaliation claims. 3 A-5113-14T3 testified that he "certainly support[ed]" plaintiff's use of family leave, which he thought was "a legal entitlement" and "a good thing" for State employees. However, plaintiff frequently was late to work or absent for reasons unrelated to her mother's illness, such as oversleeping or attending her own medical appointments. At times, plaintiff would report off from work or call in that she would be late after her scheduled start time. Plaintiff's unanticipated absences affected the operations of the office because she would miss meetings and then need to have information explained to her. She used more time off than other employees and exhausted her paid leave time by mid-year in 2009. In the Fall of 2009, plaintiff's relationship with Peck became strained when on October 2, 2009, Peck had a discussion with plaintiff, advising plaintiff that because of her absences, Peck could not rely on her. Although Peck testified she was concerned that plaintiff was jeopardizing her job, plaintiff interpreted this conversation as a criticism of her use of intermittent family medical leave. According to Peck, plaintiff was "vibrating with rage" and crying during the conversation; she screamed at Peck in the office. After that, Peck was "nervous" to be around plaintiff; she was "afraid to have interactions with her." Plaintiff accused Peck of shutting her out, which she said was "inhumane" and created a hostile work environment. 4 A-5113-14T3 Plaintiff's work relationship with Sharon Rosario, another educational specialist assigned to the Bergen office after Brice transferred, also was strained. Rosario asserted that plaintiff sent her multiple emails daily and wanted immediate responses. Rosario testified about an incident where plaintiff came up behind her and Peck, screaming at Peck about responding to her emails. Plaintiff called Peck a "bully" and yelled at Peck as she was walking away from plaintiff. Plaintiff interpreted a comment from Graham that she received in her April 2010 interim performance assessment review (PAR) as critical of her because of her use of family leave. In the "Specific Areas Identified for Development" section, he wrote, "[S.A.] has family support and care giving needs that result in her making more than usual leave requests. While understanding her circumstance[s], [S.A.] needs to develop improved ways and means to increase her days in the office as she meets family needs." Graham testified that this was a reference to her non- family leave absences because she had not taken any family leave during the timeframe covered by that PAR. He wanted her to spend more time in the office on non-family leave days. He spoke to her about her use of non-family leave time. She received a "satisfactory" rating on the PAR, checked the box on it that said she agreed with it, and signed it. John E. Boreman, DOE's County 5 A-5113-14T3 School Business Administrator in the Bergen office, talked to plaintiff about her non-family leave attendance issues; he would not permit her to work through her lunch. Plaintiff's pattern of unscheduled leave continued. She used more non-family leave time than others. Plaintiff testified that Peck and Rosario "shunned" and "isolated" her professionally. Plaintiff wanted the education specialists to be able to share their work calendars even though she had access to them through the Superintendent's secretary. She wanted to move her office closer to Peck and Rosario. Graham did not grant her requests. When Graham retired in November 2010, plaintiff asked for a reassignment, mentioning the issues with Peck and Rosario in her email to Dodi Price, DOE's Director of Human Resources and to David Corso, then DOE's Director of Administration. Plaintiff claimed Peck created a hostile work environment because of plaintiff's use of family medical leave, Peck and Rosario excluded her from activities in the office, she had "high anxiety and even higher blood pressure levels" and could not "tolerate working under these conditions." Plaintiff was referred to Mabel Williams, the Affirmative Action (AA) Officer and manager of the Equal Employment Opportunity (EEO) Office, after she emailed Corso and Price that she was 6 A-5113-14T3 "depressed," "losing sleep and suffering blood pressure increase" and "sick" because of Peck and Rosario. After plaintiff and Williams talked, Williams told plaintiff that none of the behaviors she described "violate[d] the State [p]olicy." Williams did not think plaintiff had been discriminated against. Williams suggested that plaintiff, Peck and Rosario attend mediation about the workplace issues. Although plaintiff was willing to do so, Peck and Rosario did not want to mediate "because they d[id] not believe it would be productive." Williams told plaintiff this on February 3, 2011. Plaintiff emailed Williams "IS THERE NO ONE AT NJDOE WHO CAN STOP THIS BEHAVIOR OF MY COLLEAGUES? DO I HAVE TO WITHSTAND THE OSTRACIZATION [sic] by them without remedy?" After Williams replied that Human Resources would be in touch, plaintiff emailed Williams, copying Price and Corso: who is that? I need to know. And who is it who will be in touch? I can't face work tomorrow . . . . I can't do it. The very fact that my colleagues say it would be unproductive tells me all . . . they have no need to care and this will go on without relief . . . no one seems to care. No one . . . . I'm sick, I'm sick . . . . I can't do this an[y]more. Although Williams originally had recommended plaintiff's referral to the Employee Advisory Services (EAS) for counseling, she recommended to Price that "immediate action be taken" based 7 A-5113-14T3 on the "urgent need for help" emphasized in the email. Price was concerned from the email that plaintiff "may hurt herself." Plaintiff was directed to attend an evaluation scheduled for her by DOE with Dr. Carl Chiappetta, a psychiatrist, to evaluate if she was fit for duty or a danger to herself or others. During the evaluation on February 28, 2011, plaintiff became concerned about proceeding without first consulting her attorney or union representative because Dr. Chiappetta explained he had been given a file about plaintiff by DOE's Human Resources Department, and she left the appointment. It was rescheduled, but Price advised her that she could be subject to discipline if she did not attend the next scheduled evaluation. Plaintiff was placed on paid leave. The evaluation was conducted on March 17, 2011. Dr. Chiappetta wrote in a "stat report" that day that plaintiff should receive professional counselling and not return to work for two months. He issued a more complete report on March 18, 2011, that reached the same conclusion. Plaintiff was placed on administrative leave for two months without pay. She received counselling, that she arranged privately, from Dr. Jane Sofair, a psychiatrist who had treated her in the past. Price told plaintiff that before she could return to work, there would need to be a meeting to "clearly outline what the expectations are regarding acceptable office behavior." 8 A-5113-14T3 Plaintiff filed suit against DOE in April 2011, seeking damages, lost wages, punitive damages and attorney's fees. The parties attempted to resolve the issues. In a letter dated July 1, 2011, DOE's attorney proposed settlement terms that included transferring plaintiff to work for James McBee at DOE's Office of School Improvement in Trenton. Plaintiff rejected the settlement offer. On July 20, 2011, Dr. Chiappetta issued a report, finding that plaintiff was fit for duty. Price advised plaintiff by letter that she was cleared to return to work and to follow Dr. Chiappetta's recommendation for outpatient treatment and prescribed medications. Price enclosed a guide for appropriate office conduct prepared by a Deputy Attorney General and attached a copy of a portion of the Administrative Code concerning "causes for discipline." She returned to work at the Bergen office on July 25, 2011. Plaintiff continued to email about being excluded by colleagues; she alleged that DOE had not investigated her claims about retaliation for her use of family medical leave. Plaintiff asked for a transfer to DOE's Sussex office. She was not selected for that position. Plaintiff contended that Rosalie Lamonte, the Sussex County Superintendent, asked plaintiff during the interview about her use of voluntary furlough, a claim denied by Lamonte. She said it was plaintiff who mentioned taking 9 A-5113-14T3 leave time. Plaintiff was transferred to DOE's office in Trenton under McBee's supervision in November 2011. A jury trial was conducted in April and May 2015. After sixteen days of trial, on June 2, 2015, the jury found for DOE on all counts that remained. The court dismissed the case. On appeal, plaintiff claims that errors by the trial court require reversal and retrial. Plaintiff contends the trial court erred by not determining that it was unconstitutional for a public employer to require, based on N.J.A.C. 4A:6-1.4(g), a public employee to undergo a fitness for duty psychiatric evaluation without notice or an opportunity for a hearing. She argues the trial court committed reversible error by admitting into evidence and by allowing testimony about a file of documents that related to her non-FMLA absences. She claims she was denied access to those records when she requested, pretrial, to review them. She contends the court erred by allowing testimony about her past mental health treatment. She asserts the court made erroneous evidentiary rulings by denying the admission as evidence of a DOE letter that offered her settlement terms, permitting testimony about a document that listed "acceptable" office behaviors, admitting reports from a psychiatrist who examined plaintiff for DOE, and by not allowing time for plaintiff to produce a witness. Plaintiff argues the court erred by not charging the jury 10 A-5113-14T3 separately on the claim of perceived disability discrimination. There is no merit to any of these issues. II "In reviewing a trial court's evidential ruling, an appellate court is limited to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) (citing Brenman v. Demello, 191 N.J. 18, 31 (2002)). The general rule as to the admission or exclusion of evidence is that "[c]onsiderable latitude is afforded a trial court in determining whether to admit evidence, and that determination will be reversed only if it constitutes an abuse of discretion." State v. Feaster, 156 N.J. 1, 82 (1998) (citations omitted); see also State v. J.A.C., 210 N.J. 281, 295 (2012). Under this standard, an appellate court should not substitute its own judgment for that of the trial court, unless "the trial court's ruling 'was so wide of the mark that a manifest denial of justice resulted.'" State v. Marrero, 148 N.J. 469, 484 (1997) (quoting State v. Kelly, 97 N.J. 178, 216 (1984)). A The trial court allowed the admission into evidence of plaintiff's attendance records that were kept in a file maintained in the Bergen office. The records showed her non-family leave absences and late arrivals from 2009 to 2011. The file was provided to plaintiff during discovery, although it was not shown 11 A-5113-14T3 to her in 2010, prior to when her lawsuit was filed. Corso told her then that the records could not be used for legal purposes. Although plaintiff objected to its introduction, the court found that plaintiff "opened the door to her attendance record via her testimony during direct examination." The records also were admissible "for impeachment purposes as [p]laintiff claimed that she 'accounted for all of her leave time.'" The court observed that [t]he communications by plaintiff evidencing reasons for use of leave time will allow [d]efendant to establish what leave time was used for what purpose. This is central to issues at bar as [p]laintiff can only recover for retaliation for certain categories of used leave time. There was no abuse of discretion by the trial court in admitting these records into evidence. Plaintiff's case centered on her allegation that she was discriminated and retaliated against because of her use of family medical leave. Graham and Price testified that it was her other absences, many of which were not pre-approved, that had an operational impact on the office. The records in question were relevant to show the other reasons for plaintiff's absences that did not relate to her use of family medical leave. The court found that plaintiff had opened the door to this issue by testifying about her attendance record. See State v. 12 A-5113-14T3 James, 144 N.J. 538, 554 (1996). To rebut her claim of discrimination or retaliation, her employer needed to prove legitimate and non-discriminatory reasons for its actions. See Depalma v. Bldg. Inspection Underwriters, 350 N.J. Super. 195, 213-4 (App. Div. 2002) (providing that "the necessary elements and proofs" of an FLA retaliation claim "must follow the pattern applicable to claims under the [LAD]."). The records were probative of DOE's reasons for its actions. We agree that the admissibility of the records did not depend on whether they were or could be used by DOE for disciplinary purposes. The records were provided to plaintiff in discovery. She had every opportunity to explore the issues raised by them before trial. Therefore, there was no misuse of discretion by the trial court in admitting this evidence, which was relevant, probative and not unduly prejudicial. See N.J.R.E. 401. B Plaintiff claims the court erred by permitting testimony about her past mental health treatment. She testified that she had seen a psychiatrist for limited periods since 1987 for depression. Her family doctor prescribed anti-depressant medication for her for over twenty years. Her lawsuit against DOE sought damages for emotional distress, stress and anxiety due to discrimination and retaliation. 13 A-5113-14T3 The past treatment was relevant to her damage claims based on her testimony. We discern no misapplication of discretion by permitting testimony about plaintiff's mental health treatment under these circumstances. She raised the issue about depression and medication. Her doctor's testimony that she showed "anxiety . . . secondary to hostile workplace," tended to support her claim and thus evidence that she had psychiatric difficulties prior to working in this environment was not unduly prejudicial. C The trial court denied plaintiff's request to place in evidence a July 1, 2011 letter from DOE's attorney that proposed settlement of the litigation. Plaintiff contended this letter was proof of DOE's retaliation because it conditioned plaintiff's transfer to another office on her dismissal of this litigation and release of all claims. Plaintiff rejected the settlement offer. She alleged she was entitled to a transfer without conditions. The court denied admission of the letter under N.J.R.E. 408, but did permit plaintiff to testify that DOE "sought to have [her] drop her lawsuit in exchange for a transfer." We agree that the offer of settlement was properly excluded. N.J.R.E. 408 provides that settlement proposals are generally not "admissible to prove liability for . . . the disputed claim." See Brown v. Pica, 360 N.J. Super. 565, 568 (Law Div. 2001). There 14 A-5113-14T3 is an exception where the evidence is "offered for another purpose." The letter did not prove plaintiff had a right to transfer. See Klusaritz v. Cape May Cty., 387 N.J. Super. 305, 317 (App. Div. 2006) (proving no "right" to any government job). The letter offered to transfer her to a position under McBee. He would accept administrative transfers although there was no posted vacancy for the position. She also was not prejudiced because the trial court allowed her to argue to the jury that she was denied the transfer because she would not settle the case. D Dr. Chiappetta issued four reports. These included a March 17, 2011 "stat" report that stated plaintiff was "unable to work;" a March 18, 2011 "Psychiatric Fitness for Duty Evaluation/Risk Assessment," reaching the same conclusion and making recommendations for outpatient treatment; an April 26, 2011 letter explaining the March 18, 2011 assessment; and a July 20, 2011 summary that concluded plaintiff was fit for duty. Plaintiff contends the trial court erred by admitting into evidence three of Dr. Chiappetta's reports. The court barred admission of Dr. Chiappetta's March 18, 2011 report toward the end of the trial, finding it was not a business record under the hearsay exception. See N.J.R.E. 803(c)(6). By 15 A-5113-14T3 that time, it was clear that DOE was not going to call Dr. Chiappetta to testify. The other reports were already in evidence and the jury had heard testimony about them. We agree with the court that the March 18, 2011 report was not a business record. Although it was part of DOE's file, its reliability had not been established. See N.J.R.E. 803(c)(6) (providing that the "sources of information or the method, purpose or circumstances of preparation" must indicate trust and worthiness). The report could have been admitted, however, as a non-hearsay statement. Hearsay is "a statement, other than one made by the declarant while testifying . . . offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801. Statements that might otherwise be hearsay may be admissible if they are not offered to prove the truth of the matter asserted. See N.J.R.E. 801(c); State v. Long, 173, N.J. 138, 152 (2002). Indeed, "where statements are not offered for the truthfulness of their contents, but only to show that they were in fact made and that the listener took certain action as a result thereof, the statements are not inadmissible hearsay," Spragg v. Shore Care, 293 N.J. Super. 33, 56 (App. Div. 1996) (citation omitted); see also Jugan v. Pollen, 253 N.J. Super. 123, 136 (App. Div. 1992). [El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 164 (App. Div. 2005).] 16 A-5113-14T3 In El-Sioufi, plaintiff alleged employment discrimination in violation of LAD based on her religion. She contended that a certification and information from a file, containing complaints about her, should not have been considered by the trial judge on summary judgment. We found that the statements relied on by defendants "were relevant" to show its basis for reassigning her. Ibid. The issue was not whether the information in the file was true; but whether defendants "acted reasonably in light of that information." Id. at 165. In Carmona v. Resorts Int'l Hotel, Inc., 189 N.J. 354 (2007), the Court held that "within the usual limits that govern the admissibility of evidence as a whole, an investigative report concerning an employee is admissible as non-hearsay statements whenever the employer's motivations are directly at issue." Id. at 376. The issue here was not whether plaintiff actually was fit for duty. Rather, the March 17, 2011 "stat" report and the March 18, 2011 follow-up report were relevant in explaining the DOE's "legitimate and non-discriminatory" action in placing plaintiff on administrative leave, which was part of DOE's defense to the LAD claim. The March 17, 2011 "stat" report also contained a statement from Dr. Chiappetta that "upon return to work, have supervisor meet with her and establish very clear 'expectations' 17 A-5113-14T3 about what is acceptable behavior or not." That language was relevant to DOE's defense about creating a list of acceptable behaviors that plaintiff challenged as retaliatory conduct by DOE. Thus, admission of these documents for non-hearsay purposes was appropriate. The April 26, 2011 letter from Dr. Chiappetta was in response to DOE's letter asking him "to expand upon [his] findings." His response was that [h]er problematic behaviors have been well documented, and have caused much tension, fear, disruption and loss of efficiency. Those factors have effected [sic] the way ordinary day to day business has been conducted in her workplace, on the part of her co-workers and superiors. That letter simply reiterated the operational effects that other DOE witnesses testified about. Its admission was not prejudicial to plaintiff. The July 20, 2011 report by Dr. Chiappetta stated that plaintiff was fit for duty. Admission of the report to show that the statements were made and that the "listener took certain action as a result thereof," El Sioufi, 382 N.J. Super. at 164, was for non-hearsay purposes. The report opined that plaintiff was fit for duty and did not pose any danger to herself or others. Although the better approach might have been to redact Dr. Chiappetta's diagnoses from the document, see N.J.R.E. 808, we cannot say it 18 A-5113-14T3 was unduly prejudicial to plaintiff or "clearly capable of creating an unjust result." R. 2:10-2. E Plaintiff claims the court erred in allowing testimony about her attorney's March 29, 2011 letter that provided "[i]f there is a list of acceptable office behaviors that exists at my client's place of employment, I would ask that this list be forwarded to me so that I may review the same with my client prior to her return to work." DOE relied on the letter to argue that plaintiff asked for a list of acceptable behaviors, while plaintiff argued this was simply more evidence of retaliation by DOE. We discern no error by the trial court's exercise of discretion here. Plaintiff was permitted to argue that her attorney was not asking DOE to create a list of acceptable behaviors but wanted DOE to provide this information if it already existed. DOE was permitted to argue that plaintiff requested the list of behaviors. The jury heard both sides of this issue. After carefully reviewing the record, we conclude that plaintiff's arguments about this issue are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). 19 A-5113-14T3 F Plaintiff argues the court erred by not delaying the trial so that she could subpoena Robert Gilmartin for limited rebuttal testimony. We find no abuse of discretion. Gilmartin was the Bergen County Superintendent after Graham retired. In a May 20, 2015 order, the trial court rejected plaintiff's request for an adverse inference charge when DOE did not call Gilmartin as a witness. The court reasoned that Gilmartin was available to both parties as a witness because he no longer was employed by DOE. Plaintiff then attempted to subpoena Gilmartin to rebut certain limited testimony, but he was out of state and no one knew when he would be available to testify. The court denied plaintiff's request to delay the trial for his testimony on rebuttal. The trial court must "weigh in the balance the concern of the law for orderly and efficient administration of the jury process." State v. Garfole, 76 N.J. 445, 457 (1978). Evidence Rule 403 allows the court to exclude evidence to avoid "undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403. Plaintiff wanted to call Gilmartin as a witness but did not actually know when he would be available to testify. His testimony 20 A-5113-14T3 was proffered to rebut other witnesses whose cross-examination already had elicited testimony about the weaknesses plaintiff sought to explore through Gilmartin. In these circumstances, there was no abuse of discretion by declining to further delay the trial. G Plaintiff claims the court's jury instruction on discrimination constituted reversible error. She wanted a separate instruction to the jury on discrete acts of discrimination in addition to the hostile work environment instruction. In rejecting this request, the court found that plaintiff's claim for discrimination encompassed her "claim for hostile work environment under LAD based on perceived disability." "The discrimination . . . in this case was the hostile work environment itself." The court declined to charge on discrete acts of discrimination. In reviewing the adequacy of the judge's charge to the jury, we must consider the charge as a whole in determining whether it was prejudicial. See State v. Figueroa, 190 N.J. 219, 246 (2007) (citing State v. Wilbely, 63 N.J. 420, 422 (1973)). "[A]ppropriate and proper jury charges are essential for a fair trial." State v. Baum, 224 N.J. 147, 158-59 (2016) (quoting State v. Reddish, 181 N.J. 553, 613 (2004) (citation omitted)); State v. Collier, 90 N.J. 117, 122 (1982) (quoting State v. Green, 86 N.J. 281, 287 21 A-5113-14T3 (1981)). "[E]rroneous jury instructions constitute [] reversible error where the jury outcome might have been different had the jury been instructed correctly." Washington v. Perez, 219 N.J. 338, 351 (2014). A hostile environment claim under LAD is different from a discrete act claim. Regarding hostile environment claims, [t]heir very nature involves repeated conduct. The 'unlawful employment practice' therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own. Such claims are based on the cumulative affect of individual acts. [Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 19 (2002) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 105 (2002)).] There was nothing erroneous or prejudicial about the judge's charge to the jury. Plaintiff's Count Four did not allege discrete acts of discrimination. H Plaintiff contends she was constitutionally entitled to notice and an opportunity for a hearing before she was required to undergo a fitness for duty examination. It is well-settled that 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 22 A-5113-14T3 'unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App. Div. 1959)). Plaintiff failed to plead a constitutional claim in her complaint. An appellate court should not recognize a cause of action not pleaded in the plaintiff's complaint. Bauer v. Nesbitt, 198 N.J. 601, 610 (2009). Plaintiff also advised the court that she did not want it to decide the constitutionality of the fitness for duty examination and was raising the issue to argue against admission of Dr. Chiappetta's reports. That said, plaintiff had notice and an opportunity to contest the examination. When she was first scheduled for the examination, she appeared and then left because she wanted the opportunity to consult with her attorney. She consulted with a union representative, the examination was rescheduled, and she attended. There was ample opportunity between the two examinations for plaintiff to assert that she wanted a hearing or to ask for relief under her contract but she did not do so. Therefore, we have no need to reach the constitutionality of the regulation cited by DOE as the basis for the examination. Affirmed. 23 A-5113-14T3

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Docket No.: a5319-16
Decided: 2018-07-11
Caption: DITECH FINANCIAL, LLC v. ANWAR I. CRAWFORD
Status: unpublished
Summary:
PER CURIAM In this foreclosure action, defendant Anwar Crawford1 appeals the June 29, 2017 order of final judgment. After a review of the contentions in light of the record and applicable principles of law, we affirm. On July 18, 2007, defendant executed a promissory note to Homecomings Financial, LLC for $132,000. To secure the note, defendant executed a mortgage to Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for Homecomings, its successors and assigns on the same day. The mortgage was recorded on August 1, 2007. On July 26, 2012, the mortgage was assigned to GMAC Mortgage, LLC. The assignment was recorded on July 31, 2012. The mortgage was assigned to Green Tree Servicing, LLC (Green Tree) on June 12, 2013, and recorded that same day.2 After defendant defaulted on the loan in March 2012, Green Tree filed a complaint for foreclosure in July 2013. As defendant's answer denied the allegations in the complaint, the matter was listed as contested. The trial judge conducted several 1 The judgement at issue is only against Anwar Crawford, therefore, we refer to him as defendant. 2 In August 2015, Green Tree merged with, and changed its name to, Ditech Financial, LLC. Plaintiff's motion to substitute Ditech Financial LLC in the place of Green Tree was granted in February 2016. 2 A-5319-16T1 case management conferences and heard, and denied, defendant's motion to dismiss the complaint for failure to produce discovery. At trial, Green Tree's witness produced and authenticated copies of the note and recorded mortgage, the recorded assignments of the mortgage, the loan payment history, notices of intent to foreclose, and certified mail tracking results. The witness testified he was employed by Green Tree as the Real Estate Owned (REO) Manager "in charge of repossessing, reselling, [and] remarketing . . . foreclosed properties" and worked "in conjunction with the collection department, the foreclosure department[,] and the legal department." The witness further testified he was familiar with how Green Tree's business records were created and maintained. Finally, the witness confirmed the note produced was a "true, correct copy of the promissory note held by Green Tree." Defendant declined to call any witnesses, or testify himself, and did not seek to admit any evidence. In an oral decision issued December 9, 2014, the trial judge found Green Tree's witness credible and determined Green Tree demonstrated a prima facie right to foreclose. He stated: Based upon [the] evidence[,] the [c]ourt finds [Green Tree] has established a right to foreclose by clearly demonstrating the execution and recording of the mortgage and defendant's default. The note was endorsed in blank, the note, ultimately, ended up in the possession [of] Green Tree Servicing. The 3 A-5319-16T1 mortgage was assigned and, again, ultimately end[ed] up in the ownership of . . . Green Tree Servicing. And there's nothing to indicate that either the note [or] mortgage were not properly possessed and owned by Green Tree. As a result of his findings, the court deemed the matter uncontested and referred the case to the Office of Foreclosure on December 30, 2014. Defendant's objection to the proposed final judgment was denied and the court entered a final judgment of foreclosure on June 29, 2017. Defendant appealed, arguing Green Tree and plaintiff were not the holders of the note or mortgage and had no standing to foreclose. We disagree. Defenses to a foreclosure are narrow and limited; the only material issues in a foreclosure proceeding are the validity of the mortgage, the amount of indebtedness, and the right of the mortgagee to foreclose on the mortgaged property. Great Falls Bank v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993), aff'd, 273 N.J. Super. 542, 547 (App. Div. 1994). To have a right to foreclose, or standing, "a party . . . must own or control the underlying debt." Bank of N.Y. v. Raftogianis, 418 N.J Super. 323, 327-28 (Ch. Div. 2010). Standing is established "either [by] possession of the note or an assignment of the mortgage that predated the original complaint." Deutsche Bank Tr. Co. Ams. v. 4 A-5319-16T1 Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012) (citing Deutsche Bank Nat'l Tr. Co. v. Mitchell, 422 N.J. Super. 214, 222-23 (App. Div. 2011)); see also Capital One, N.A. v. James Peck, IV, ___ N.J. Super. ___ (App. Div. 2018) (slip op. at 6). Here, the trial judge found Green Tree presented true copies of the note and mortgage and was in possession of the documents prior to the filing of the complaint. Green Tree, therefore, has satisfied all of the necessary requirements for the entry of a final judgment. Accordingly, the final judgment was properly entered. Affirmed. 5 A-5319-16T1

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Docket No.: a5542-16
Decided: 2018-07-11
Caption: ATTILIOSANTO VENTURO v. DR. DAVID S. WOLKSTEIN
Status: unpublished
Summary:
PER CURIAM The court being advised by the parties in the above matter that the issues in dispute have been amicably resolved, the appeal is accordingly dismissed with prejudice and without costs to either party. 2 A-5542-16T3

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Docket No.: a5577-15
Decided: 2018-07-11
Caption: JESSE ROSENBLUM v. BOROUGH OF CLOSTER
Status: unpublished
Summary:
PER CURIAM Plaintiff Jesse Rosenblum appeals from a July 12, 2016 order granting summary judgment in favor of defendant Borough of Closter (Borough). Having reviewed plaintiff's arguments in light of the record and applicable legal principles, we affirm. Plaintiff is a resident and a taxpayer in the Borough who brought suit seeking to invalidate an ordinance, which amended the Borough's Code. In 2015, the Borough passed ordinance 2015-1186, amending section 200-69E of the Code. Prior to the enactment of the ordinance, this section of the Code limited each lot in the Business Zone, to no more than one principle use and no more than one building. That restriction was enacted in 1980. Prior to the 1980 provision, there existed several lots in the Business Zone containing more than one building on a single lot. After the ordinance passed in 2015, the Business Zone was exempted from the limitation on how many buildings or uses may be on each lot. This was done, at least in part, to discourage "big box" stores in the Business Zone. In July 2015, plaintiff filed a complaint in lieu of prerogative writs under Docket No. L-7037-15, seeking to have the ordinance declared null and void for: (1) being arbitrary, capricious, and unreasonable; (2) failing to comply with provisions of the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D- 2 to -163; and (3) failing to comply with the notice requirements of N.J.S.A. 40:55D-62.1. On September 28, 2015, the Borough filed an answer to plaintiff's complaint. 2 A-5577-15T2 On February 9, 2016, plaintiff moved for summary judgment arguing he had not been provided the proper notice under N.J.S.A. 40:55D-62.1 and that the ordinance constituted a change in classification within the Business Zone. On March 29, 2016, the court denied plaintiff's motion because "the ordinance did not constitute a change in classification," thus plaintiff was not entitled to notice under N.J.S.A. 40:55D-62.1. An order reflecting the ruling was entered on August 18, 2016; plaintiff did not appeal from this order. On April 29, 2016, the Borough moved for summary judgment arguing there was no genuine issue of material fact and plaintiff had presented no evidence or produced any expert report indicating the ordinance violated the MLUL and it was invalid for being arbitrary, capricious, or unreasonable. On June 9, 2016, the court in an oral decision, granted the Borough's motion. The judge determined plaintiff did not provide the court with competent evidence as to why the purpose clause of the MLUL, N.J.S.A. 40:55D- 2 had been violated. The judge stated, "[p]laintiff solely provided conclusory allegations absent material documentation." In response to the allegation the Borough violated the notice requirement of N.J.S.A. 40:55D-62.1, the judge stated it "has already been addressed by this Court as the law of the case that notice to Plaintiff was not required." 3 A-5577-15T2 The court rejected plaintiff's allegations the ordinance was arbitrary, capricious, or unreasonable. An order was entered on July 12, 2016, and it is from this order that plaintiff appeals, arguing the trial court erred in granting summary judgment for the Borough. When we review a grant of summary judgment, we use the same standard as that of the trial court. Globe Motor Co v. Igdalev, 225 N.J. 469, 479 (2016). A court should grant summary judgment, "if the pleadings, depositions, 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." Ibid. (citing R. 4:46-2(c)). The evidence must be viewed in "the light most favorable to the non-moving party." Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012). "Rule 4:46-2(c)'s 'genuine issue [of] material fact' standard mandates that the opposing party do more than 'point[] to any fact in dispute' in order to defeat summary judgment." Globe Motor Co., 225 N.J. at 479 (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995)) (alteration in original). Plaintiff presented four issues for us to consider. Plaintiff's first contention is the ordinance was invalid because the Borough did not comply with the personal notice requirements 4 A-5577-15T2 of the MLUL. We disagree. The order entered on March 29, 2016, dealt finally and completely with the notice question, when the judge found that "the ordinance did not constitute a change in classification," thus plaintiff was not entitled to personal notice. However, plaintiff only appeals from the July 12, 2016 order, granting summary judgment to the Borough. "It is clear that it is only the orders designated in the notice of appeal that are subject to the appeal process and review." W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458 (App. Div. 2008) (citing Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465- 66 (App. Div. 1994)). Plaintiff did not appeal from the March 29 order, therefore it is not within the jurisdiction of this court, and we decline to consider any arguments regarding the notice requirement of N.J.S.A. 40:55D-62.1. Plaintiff's next contention is that the ordinance contains misinformation which makes its adoption arbitrary and capricious. "A municipal ordinance under review by a court enjoys a presumption of validity and reasonableness." State v. Clarksburg Inn, 375 N.J. Super. 624, 632 (App. Div. 2005) (citing First Peoples Bank of N.J. v. Twp. of Medford, 126 N.J. 413, 418 (1991)). "Municipal ordinances are normally liberally construed in favor of the municipality and are presumed valid, with the burden of proving 5 A-5577-15T2 otherwise placed upon the party seeking to overturn the ordinance." State v. Golin, 363 N.J. Super. 474, 481-82 (App. Div. 2003); Dome Realty, Inc. v. Paterson, 83 N.J. 212, 235 (1980) ("courts place a heavy burden on the proponents of invalidity"). Only a showing of "clear and convincing evidence" may overcome this presumption. Spring Lake Hotel & Guest House Assn. v. Spring Lake, 199 N.J. Super. 201, 210 (App. Div. 1985). Specifically in the case of zoning ordinances, "[i]t is fundamental that zoning is a municipal legislative function, beyond the purview of interference by the courts unless an ordinance is seen in whole or in application to any particular property to be clearly arbitrary, capricious or unreasonable, or plainly contrary to fundamental principles of zoning" or applicable statutes. Bow & Arrow Manor v. West Orange, 63 N.J. 335, 343 (1973); Yousefian v. Mun. Council of Wayne, 152 N.J. Super. 111, 121 (Super. Ct. 1977) (citation omitted). "[T]he fundamental question in all zoning cases 'is whether the requirements of the ordinance are reasonable under the circumstances.'" Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 290 (2001) (quoting Vickers v. Twp. Comm. of Gloucester Twp., 37 N.J. 232, 245 (1962)). Plaintiff has submitted no evidence here or before the trial court, besides his unsubstantiated and conclusory allegations, to 6 A-5577-15T2 support his assertion the ordinance at issue was arbitrary, capricious, or contrary to zoning principles. We reject plaintiff's assertion the wording in five of the "whereas" clauses preceding the body of the ordinance are replete with such misinformation as to create issues of material fact such that we would find that the trial court erred in granting summary judgment for the Borough. We also reject plaintiff's argument that the Borough's actions amounted to spot zoning. Plaintiff did not set forth sufficient evidence, or really any evidence, to satisfy his burden in raising these arguments with the trial court. Plaintiff's additional arguments, many of which were not raised below, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. 7 A-5577-15T2

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Docket No.: a0293-17
Decided: 2018-07-10
Caption: DIVISION OF CHILD PROTECTION AND PERMANENCY v. P.K.S.
Status: unpublished
Summary:
PER CURIAM Defendant appeals from a Family Part order terminating her parental rights to her then almost three-year old son B.A.N.M (Barry),1 and her then one-and-a-half-year old son M.J.L.M. (Mike).2 The Law Guardian supports termination and urges us to uphold the order. We affirm, substantially for the reasons stated by Judge Timothy W. Chell in his thorough twenty-five page written decision issued with the order. The pertinent trial evidence is detailed in the judge's decision. A summary will suffice here. The judge found that both of the Division of Child Protection and Permanency's (Division) witnesses, the caseworker and its expert in clinical and forensic psychology, Dr. James L. Loving, Psy. D., gave credible testimony that established defendant's lack of parental ability endangered her "children's safety, health, and development," causing them "real and substantial harm." Defendant did not present any 1 We use pseudonyms to protect the identities of the parties involved. 2 The children's biological fathers are unknown. 2 A-0293-17T2 witnesses. In fact, she showed little interest in the proceedings; failing to attend the trial, and attending only one of the five pre-trial hearings. When Barry was about two-and-a-half years old and living with defendant, their house – to put it mildly – was in a deplorable condition; rotting groceries in the driveway surrounded by flies and maggots; dog feces inside the house; urine stains throughout the house; a dirty kitchen with an inoperable refrigerator; and graffiti on the walls and doors. This discovery, along with a doctor's examination of Barry that revealed several abrasions and a bald spot on his head suggesting he was laying on his back for extensive periods, led to an Abuse and Neglect proceeding. That litigation, in which defendant stipulated she abused or neglected Barry because her home was unsafe, culminated in an order awarding the Division custody, care, and supervision of Barry. Seven months earlier, the Division was granted custody, care, and supervision of Mike – a week after his birth and before he left the hospital. With her sons placed with resource parents, defendant was offered services to assist her with the Division's plan for reunification. However, the plan was transformed to termination when defendant was dismissed from three visitation programs offered by the Division due to her inconsistent participation; failure to obtain suitable housing; failure to provide an 3 A-0293-17T2 acceptable family member to serve as kinship legal guardian; and failure to demonstrate no ability to properly parent her sons. Dr. Loving opined that, based upon his bonding evaluations of the boys with the resource parents, they have a sense of safety, security and trust with the resource parents, such that if they were removed from them, it would place them at a high risk for serious and lasting harm that defendant would be unable to resolve. No bonding evaluation was conducted between defendant and the boys because she failed to attend the evaluation. Based upon the evidence presented, Judge Chell issued a written decision analyzing how the Division satisfied the four prongs of the best-interests-of-the-child standard, N.J.S.A. 30:4C-15.1(a), and entered an order terminating defendant's parental rights to her sons. Defendant contends the judge erred because there was insufficient, credible evidence supporting the order. We disagree. Our review of the Judge Chell's comprehensive decision is limited. We defer to his expertise as a Family Part judge, Cesare v. Cesare, 154 N.J. 394, 412 (1998), and we are bound by his factual findings so long as they are supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 269 (2007) (citing In The Matter of Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). 4 A-0293-17T2 After reviewing the record, we conclude that defendant's arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), because the judge's factual findings are fully supported by the record and, in light of those facts, his legal conclusions are unassailable. Affirmed. 5 A-0293-17T2

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Docket No.: a0502-16
Decided: 2018-07-10
Caption: KIM'SINTERNATIONAL, INC v. HYUN HEE KIM
Status: unpublished
Summary:
PER CURIAM Following a bench trial, the court entered judgment for plaintiff, Kim's International, Inc. (Landlord), for the balance due under a commercial lease, but denied Landlord's claim for counsel fees and costs. Defendant, Hyun Hee Kim (Tenant), had terminated the lease before its term's end, claiming constructive eviction. Tenant appeals the judgment for rent. Landlord cross- appeals the denial of its claim for fees and costs. Because competent evidence in the record supports the trial court's decision concerning rent, we affirm it. Because the parties agreed in the lease Landlord would be entitled to reasonable counsel fees and costs in an action for rent, and because this provision is neither unconscionable nor otherwise unenforceable, we reverse that part of the judgment denying Landlord fees and costs and remand for further proceedings. Landlord managed a building with an address of 421-425 Broad Avenue, Palisades Park. The building's first floor contained three rental units, 421, 423, and 425. In September 2010, the parties entered into an agreement in which tenant agreed to lease the rear portion of 421 Broad Avenue ("421"), where she intended to operate a skin care facility. The lease term began on September 15, 2010, and ended on "April 31, 2016 [sic]". The ninth paragraph of a "Rider" to the lease provided Landlord could recover attorney's fees and other expenses "[i]n the event of any legal 2 A-0502-16T4 proceedings . . . against Tenant." When the parties signed the lease for 421, Tenant was already leasing 425 Broad Avenue ("425"), where she had operated a hair salon successfully for many years. Tenant vacated the premises at 421 on August 14, 2014, twenty months before the lease expired. Two months later, in October 2014, Landlord filed a complaint alleging breach of contract, conversion, and unjust enrichment. In addition to damages, Landlord sought attorney's fees and costs. Tenant filed an answer and five-count counterclaim alleging breach of the lease agreement, breach of the covenant of quiet enjoyment, breach of the implied covenant of good faith and fair dealing, failure to submit insurance claims, and failure to maintain property. The court tried the matter over three days. On the first day, Tenant filed three in limine motions. The court denied the first — to dismiss the complaint because Landlord had failed to mitigate damages — as a dispositive motion improperly filed as an in limine motion rather than a summary judgment motion. The court reserved decision on the second and third — to exclude evidence concerning the space tenant leased at 425 for the hair salon, and repair bills for the third first-floor unit, 423 — until the context became clear at trial. Following the close of the proofs, the parties requested, and the court permitted, post-trial briefs. Landlord requested 3 A-0502-16T4 attorney's fees and costs in its brief. Before the court rendered a decision, Tenant filed a motion to reopen her case. She sought to present evidence Landlord had listed the building for sale prior to the expiration of her lease. She claimed the evidence was relevant to Landlord's obligation to mitigate damages. The court denied the motion. The court entered judgment for Landlord for $95,828.47. The judgment did not include attorney's fees. Landlord filed a motion for reconsideration, seeking attorney's fees as provided for in the lease. Although Landlord had not presented specific proofs at trial as to attorney's fees, as previously mentioned, it had demanded fees in the complaint and requested fees in its post- trial submission. The court denied Landlord's motion for reconsideration on the ground the court no longer had jurisdiction, because Tenant had filed a notice of appeal from the judgment. The parties did not dispute at trial either the lease terms or that Tenant vacated 421 in August 2014 before the lease term ended. Their primary dispute was whether Tenant vacated because 421 had become uninhabitable due to water penetration and bugs or because her skin care business had failed. They also disputed whether Landlord had attempted to mitigate its damages. Landlord presented two witnesses: its principal and its real estate broker. The principal denied Tenant vacated due to water 4 A-0502-16T4 leaks originating from the second floor, as she claimed. Explaining the background of issues involving water backup in 421, he cited the following provision in the 421 lease: The Landlord will not be liable for any damage or injury which may be sustained by the Tenant or any other person, as a consequence of the failure, breakage, leakage or obstruction of the water, plumbing, steam, sewer . . . resulting from the carelessness, negligence or improper conduct on the part of any other tenant or of the Landlord or the Landlord's or the Tenant's or any other tenant's agents, employees, guests, licensees, invitees, subtenants, assignees or successors . . . . According to Landlord's principal, the reason for this provision was Tenant had misused the plumbing in 425 and caused "backing up of the toilet and sewage." For that reason, the lease also contained a rider with the provision that "Landlord shall be responsible for the structural repair items only. Tenant shall . . . make all repairs . . . and shall maintain in good order and condition, the mechanical systems, including the plumbing. . . ." Landlord's principal claimed with one exception, the only time water penetrated 421 from above occurred during summer months, when condensation from air conditioning pipes caused "little drips of water" to spot the ceiling tiles, which were "exactly [the] same tile[s] [as] in this [c]ourtroom." The exception occurred in July 2014, when a pipe leaked and a contractor had to open the 5 A-0502-16T4 wall to repair it. Landlord's principal acknowledged there was mold in the wall around the leaking pipe and he never called a mold remediation service to address it, but he said he had a contractor repair the pipe the day after it leaked and there was never a reoccurrence. He also testified he inspected the piping on the second floor and made repairs and updates to ensure there were no leaks. When confronted on cross-examination with photographs of buckets allegedly placed to catch dripping water, and one bucket containing water near its bottom, the principal denied ever seeing them. He insisted most of the water damage Tenant experienced resulted from her toilets and sewage backing up from her misuse of the utilities, as "bundles of paper towel[s] came out . . . of the toilet." Questioned about his attempts to mitigate damages, Landlord's principal confirmed at most he was only looking for a tenant for one and one-half years. He stated he initially got a permit to renovate his building in 2013, but had to resubmit another application on December 3, 2014, because of objections from the neighbors. Landlord's real estate broker testified he began working for Landlord in November 2014 after Tenant vacated 421. The broker uploaded an advertisement on November 24, 2014, to the multiple 6 A-0502-16T4 listing site (MLS), which targets agents looking for a commercial space to rent. In addition to the MLS, the broker advertised in Korea Times, Central Daily, and Monthly Real Estate Information Magazine, all of which are publications in Korean. He also sent the information directly to the headquarters of Hanmi Bank. For the listings, an architect's rendering of the façade for the renovations was used, rather than a picture of the actual "old and . . . run down" building. Asked why he did not advertise in the English press, the broker explained "the space . . . in Palisades Park . . . [is] usually for the Korean customers." Landlord had not told the broker of any leaks in the ceiling or walls. Although the broker had received some inquiries, as of the time of trial, he had been unable to find new tenants. Due to Landlord's plan to renovate, the listing was "for about two years," with priority given to renew the lease after renovations were complete. Tenant testified she leased 421 to open a skin care business where customers would come to rest and "do [their] face to get prettier." The setting of such a business must be pristine as customers expect to be able to relax in a clean, comforting environment. In order to open this business, Tenant claimed she had to renovate the premises, which involved cleaning them thoroughly because they had previously been raided by the FBI. In 7 A-0502-16T4 addition, Tenant claimed she built new rooms in the rental space and ultimately spent seven months and more than $100,000 making renovations. However, Tenant could not produce any receipts for the renovations or cleaning work. Tenant testified the water intrusions at 421 had occurred since 2010, and gradually increased in severity until they occurred almost daily. She claimed that complaints to the landlord only resulted in him yelling and screaming and saying she was not acting properly. She stated, "[w]hen he scream[ed] and yelled, [she] heard that he wanted [her] to leave." She felt the Landlord did not want her there, so she vacated the premises. Tenant identified a series of photographs and testified they depicted water that came from many different places, created a terrible smell, and had to be cleaned up daily. Some of the photos depicted receptacles Tenant and her employees used to scoop up the water. According to Tenant, the water on the floor came from the wall and sometimes from the ceiling. The photographs depicted white towels Tenant used to impede the flow of water, scoop the water, and put it in buckets. Tenant testified the photographs were taken in June, July, and early August 2014. Tenant also identified photographs of the opening in the wall when Landlord fixed the leaking pipe. Tenant testified the photos 8 A-0502-16T4 depicted rotting wood and "rotten mold." She also testified the wall continued to leak after Landlord supposedly fixed the pipe. In addition to the leaks, bugs infested 421. Tenant and her employees sprayed bug spray every day. Tenant identified photographs of what she claimed were the bugs. Tenant also showed a video depicting, according to her, "water continuously like seeping — coming out and the little things there and that — that's all bugs." She told the court a lot of "black stuff" "around the edge" was "all mold" and "[t]owards the wall it's the worst." She thought the video was taken in July 2014. Tenant wrote two letters to Landlord complaining about the situation, and her attorney wrote a third. She explained that a letter dated August 26 was written because she "was going through [a] very hard time and [the skincare] business was closing." She testified she had vacated the premises because the water continued to leak and there were no customers due to the smell and bugs. She also testified there were rumors in the community about her store, and she had "borrowed a lot of money to make rental payment[s] . . . [she had done her] best, but [she] could not continue anymore." Therefore, she vacated the premises at the end of August and returned the keys to Landlord sometime in September. During cross-examination, Landlord asked Tenant to produce the cellular phone with the photographs and video she had taken. 9 A-0502-16T4 After verifying Tenant still had the phone, the court told defense counsel to have Tenant produce it the next court day. Tenant did not produce it. Tenant also told the court she had taken pictures of the leaks that occurred before 2014, but the camera had broken and everything had been lost. Landlord's counsel cross-examined Tenant about Landlord's 2014 suit to evict her for non-payment of rent. Tenant claimed she did not remember. When asked if she recalled Landlord had agreed to reduce her rent in exchange for her payment of the late rent, she responded, "I mean, I don't really remember the — the detail of it, but I remember — I remember that the — because of the leak and the — the landlord, you know, would give us a reduction on the rent. That I remember a little." When further asked if she remembered asking for a reduction in the rent because business was difficult, she responded "I mean, I don't remember the exact detail, but, I mean, then that leak was really bad and compared to other stores around that area, the rent – my rent was high and — and I do remember — yes. There was a reduction in the rent. But I don't remember exactly." When asked whether she had put up a defense and raised the issue of habitability in the previous action, she said "No, I don't really remember exactly." Based on the foregoing evidence and testimony, the court entered judgment for Landlord against Tenant for $95,828.47 on 10 A-0502-16T4 Landlord's claim for Tenant's breach of the commercial lease. The order dismissed Tenant's counterclaims with prejudice and provided, "[a]ny claims pleaded and not addressed herein are deemed abandoned." In its opinion, the court found Tenant failed to sustain her burden of proving her affirmative defenses, specifically, her claims for breach of the covenants of habitability and quiet enjoyment. After recounting the considerable conflicting testimony as to the cause of water on the premises — either leaking or backed-up plumbing — the court resolved the conflicting testimony and credibility issues in favor of Landlord. The court cited Tenant's testimony that she had taken much of the photographic evidence on a cell phone she still possessed and Tenant's failure to produce the cell phone to verify the date the photos were taken. The court noted tenant did not present witnesses who allegedly participated in the water cleanup. The court also found significant Tenant's non-mention of any of her habitability complaints when defending the eviction action three months before she vacated the tenancy. The court observed Tenant had not produced "any documentation of any complaints made by [Tenant] to the [L]andlord prior to July 2014." As to the issue of bug infestation, the court noted "the lease made clear that [Tenant] was obligated to use the services 11 A-0502-16T4 of an exterminator and she never did so throughout the entire period of the lease from September 2010." For that reason, the court concluded Tenant could not "establish that any pest problem that might have existed on the premises was the responsibility of . . . [L]andlord or due to any negligence or action of the [L]andlord." Addressing the issue of mitigation, the court was persuaded by the testimony of both Landlord's principal and its real estate broker. The court rejected Tenant's argument that because Landlord intended to renovate the building and was therefore unwilling to accept a lease beyond the term of the one with tenant, Landlord had failed to mitigate its damages. Considering all of the evidence, the court concluded it was: [M]ore probable than not that [Tenant] was not able to make a financial success of the business, [and] that this caused her to fall behind in the rent earlier in 2014, and then when the incident occurred in July 2014 she made a decision to attempt to get out of her obligations under the lease. On appeal, Tenant argues: I. BECAUSE THE LANDLORD COMMITTED ANTECEDENT BREACHES OF THE LEASE, WITH EXTENSIVE WATER LEAKAGE DAMAGE CAUSED TO HYUN HEE KIM'S BUSINESS OPERATIONS, HYUN HEE KIM WAS RELIEVED OF ANY OBLIGATION TO CONTINUE UNILATERAL PERFORMANCE OF THE LEASE 12 A-0502-16T4 II. BECAUSE THE LANDLORD BREACHED THE MOST IMPORTANT COVENANT FOR A TENANT — THE ABILITY TO USE THE PREMISES FOR THE TENANT'S BUSINESS — THE LANDLORD SHOULD BE ORDERED TO DISGORGE ALL RENT PAID BY HYUN HEE KIM UNDER SETTLED EQUITABLE PRINCIPLES III. BECAUSE THE "APRIL 2014 TENANCY SUIT STIPULATION" DOES NOT FORECLOSE THE CLAIMS OF HYUN HEE KIM, AND THOSE RECORDS WERE NEVER PRODUCED IN DISCOVERY, THE COURT SHOULD REJECT THE LANDLORD'S INNUENDO THAT THE APRIL 2014 STIPULATION SOMEHOW PRECLUDES HER CLAIMS THROUGH APRIL 2014 IV. BECAUSE THE LANDLORD FAILED TO PRESENT ANY PROFESSIONAL OR EXPERT TESTIMONY ON THE ALLEGED "REPAIRS," THE PURPORTED INVOICES ADMITTED AS THE LANDLORD'S BUSINESS RECORDS, I.E., "AS RECEIVED," WITHOUT THE UNDERLYING SERVICE EXPERTS, IS NOT PROBATIVE OF ANY FACT OTHER THAN THE LANDLORD PAID NOMINAL SUMS FOR PLUMBING SERVICES V. BECAUSE THE LANDLORD FAILED TO MITIGATE DAMAGES, AND FAILS TO PRESENT A PRIMA FACIE CASE, THE COMPLAINT SHOULD BE DISMISSED VI. THE TRIAL COURT'S FAILURE TO GRANT HYUN HEE KIM'S MOTIONS IN LIMINE SHOULD BE REVERSED Having considered Tenant's arguments in light of the record and controlling legal principles, we find them without sufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(1)(E). We add the following brief comments. 13 A-0502-16T4 Tenant's Points I, II and V represent her disagreement with the trial court's factual and credibility determinations. When we review a judgment entered in a non-jury case, we will not disturb the trial court's findings of fact unless "they are so wholly [u]nsupportable as to result in a denial of justice." Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483- 84 (1974) (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div. 1960)). Here, the trial court's factual and credibility determinations are amply supported by credible evidence on the record. In Points III and IV, Tenant misapprehends the purpose for which the evidence of the previous suit and the repair bills were introduced, and in any event, we discern no abuse of discretion in the trial court's decision to admit the evidence. See Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016). Last, we discern no abuse of discretion in the trial court's disposition of Tenant's motions in limine. One of the in limine motions was in reality a dispositive motion labelled "in limine" and filed on the day trial was to begin. The trial court would have violated Landlord's right to due process had it disposed of the motion and the case. Cho v. Trinitas Reg'l Med. Ctr., 443 N.J. Super. 461, 464 (App. Div. 2015), certif. denied, 224 N.J. 529 (2016). As to the other two in limine motions, we note a 14 A-0502-16T4 trial court's ruling on a motion in limine is by its nature preliminary. It is difficult to discern a situation in which a judge presiding over a bench trial could commit error by deferring a ruling on a motion in limine until the issue crystallizes during the trial. Landlord contends on his cross-appeal the trial court erred by denying its claim for counsel fees and costs. The 421 lease provided for counsel fees and costs. Landlord demanded fees and costs in its complaint, and Landlord reiterated that demand in its post-trial submission. Perhaps it would have been more prudent to raise the issue during preliminary discussions at the trial's inception, but we can discern nothing in the record that suggests Landlord either waived or abandoned its right to seek counsel fees. Rather, it appears the trial court overlooked the issue. For that reason, to the extent the final judgment is construed as a denial of Landlord's claim for fees and costs, we reverse and remand for consideration of the issue. Our decision should not be construed as suggesting how the matter should be decided. Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. 15 A-0502-16T4

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Docket No.: a0798-16
Decided: 2018-07-10
Caption: STATE OF NEW JERSEY v. ASHLEY A. GEORGES
Status: unpublished
Summary:
PER CURIAM Defendant Ashley A. Georges appeals from the denial of his second and third petitions for post-conviction relief (PCR). Defendant also appeals the denial of a motion for a new trial based upon newly discovered evidence. We affirm. We recite the procedural history of the case necessary for our review. Tried by a jury in 2001, defendant was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1); two third-degree charges of unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a).1 On February 8, 2002, the judge sentenced defendant to an aggregate sentence of life imprisonment with a thirty-year parole disqualifier. Appropriate fines and fees were imposed. Defendant filed a direct appeal. We affirmed defendant's convictions in an unpublished opinion, State v. Georges, No. A- 3960-01 (App. Div. Sept. 29, 2003). The Supreme Court denied defendant's petition for certification. State v. Georges, 180 N.J. 453 (2004). Defendant then filed a first petition for PCR, which was denied. We affirmed the denial in an unpublished opinion, State v. Georges, A-2215-07 (App. Div. July 9, 2010). The Supreme Court 1 Prior to trial, the judge held a Miranda hearing, after which he ruled that defendant's statement to police was admissible. Miranda v. Arizona, 384 U.S. 436 (1966). 2 A-0798-16T4 denied defendant's petition for certification. State v. Georges, 205 N.J. 15 (2010). On December 6, 2010, defendant petitioned for a writ of habeas corpus before the United States District Court.2 On January 21, 2011, while that petition was pending, defendant filed his second petition for PCR. Defendant filed an amended petition for writ of habeas corpus with the District Court, as well as a motion to stay the petition in order to pursue the second collateral relief motion in state court. An answer was filed by respondent to defendant's amended petition for a writ of habeas corpus and in opposition to defendant's motion to stay on February 17, 2012. Two months later, defendant filed motions with the District Court for an evidentiary hearing and for admissions. Both motions were opposed by the State. By letter dated July 24, 2012, the Law Division advised defendant that he "must decide" whether he wished to "proceed with [his] case in State Court or Federal Court." A decision was to be submitted by August 13, 2012. Two days prior to the expiration date, defendant advised that he wanted to dismiss his petition without prejudice pending the outcome of his motion for a stay before the District Court. Due to defendant's pending habeas 2 Defendant's brief and appendix indicate the petition for writ of habeas corpus was mailed on November 30, 2010. 3 A-0798-16T4 corpus application, the court denied defendant's second PCR motion without prejudice. In November 2014, a certification was signed by Hakim Kelly, an inmate at the Essex County Jail at the time of the victim's death, regarding an unspecified murder committed in Newark. The certification disclosed that Kelly was identified by a witness from a photo array of suspects. Within his certification, Kelly stated, "I can honestly say that I will never forget that date of December[] 4, 1999, because that was the first time I was happy to be in jail because I was wrongly identified for a murder." On December 10, 2014, defendant filed motions in the District Court for a stay to resolve newly discovered evidence; for discovery; to expand the record; and for an evidentiary hearing. A memorandum was filed by the State, as respondent. On March 9, 2015, the District Court ordered defendant to submit details of his pending State matter, which defendant answered by letter in April 2015. In February 2016, the District Court granted defendant's motion to stay the habeas corpus proceeding to allow him to exhaust State court claims. Defendant filed his third petition for PCR in April 2016. The PCR was denied on August 30, 2016 in a written opinion by Judge Michael A. Petrolle. The judge held that defendant's second and third petitions were time barred. As for the newly discovered 4 A-0798-16T4 evidence claim, the judge found, given the overwhelming evidence of defendant's guilt and lack of specificity in Kelly's certification, the contents of the certification would not have led the jury to acquit defendant. Defendant filed a notice of appeal. We granted defendant leave to proceed as indigent on December 19, 2016. On January 30, 2017, we denied defendant's motions for the assignment of counsel and for a remand to conduct an evidentiary hearing. On March 2, 2017, we denied defendant's motion for disclosure of materials related to identification procedures. Defendant raises the following points on appeal: POINT I NEWLY DISCOVERED EVIDENCE THAT HAKIM KELLY WAS IDENTIFIED AS THE SHOOTER OF KEVIN JACKSON BEFORE [DEFENDANT'S] EYEBROWS WERE IDENTIFIED BY THE STATE'S WITNESS AS BEING SIMILAR TO THE EYEBROWS OF AN INDIVIDUAL SHE OBSERVED ON THE DAY OF THE SHOOTING WALKING FROM ONE CAR TO ANOTHER. A. THE NEWLY DISCOVERED EVIDENCE THAT RIDDICK IDENTIFIED HAKIM KELLY, SOMEONE OTHER THAN THE APPELLANT IS 'MATERIAL' AND NOT MERELY IMPEACHING OR CONTRATICTORY [SIC], AND HAD THE CAPACITY TO UNDERMINE THE IDENTIFICATION OF APPELLANT. B. A DETERMINATION OF IMPERMISSIVE SUGGESTIBILITY IS TO BE ASSESSED BY THE TOTALITY OF THE CIRCUMSTANCES OF MELAINE [SIC] RIDDICK'S 5 A-0798-16T4 IDENTIFICATION, AS TO WHETHER OR NOT THAT A SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION CAN BE SAID TO EXIST. C. FAILURE OF THE PROSECUTION TO DISCLOSE THIS IMPEACHMENT EVIDENCE CONSTITUES [SIC] A BRADY[3] VIOLATION. POINT II THE POST-CONVICTION RELIEF (PCR) COURT ERRONEOUSLY DETERMINED THAT, "THE ASSERTIONS OF FACTUAL PREDICATES FOR CLAIMS OF INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL ARE TIME BARRED UNDER [RULE] 3:22-12[(a)](2)(B) AND MUST BE DISMISSED UNDER [RULE] 3:22- 4(B)(1) AND (2)(B) BECAUSE OF LAPSE OF TIME." POINT III [DEFENDANT'S] CASE DEFINES "FUNDAMENTAL INJUSTICE[,"] THE PASSAGE OF TIME IS AN INSUFFICIENT REASON NOT TO CORRECT AN INJUSTICE WHEN THE JUDICIAL SYSTEM HAS DENIED A DEFENDANT WITH FAIR PROCEEDINGS LEADING TO A JUST OUTCOME OR WHEN INADVERTENT ERRORS MISTAKENLY IMPACTED A DETERMINATION OF GUILT OR OTHERWISE WROUGHT A MISCARRIAGE OF JUSTICE. (Not Raised Below). In his reply brief, defendant raises the following arguments: POINT I [DEFENDANT] FILED A SUBSEQUENT PETITION FOR [PCR], TIMELY ALLEGING A PRIMA FACIE CASE OF INEFFECTIVE ASSISTANCE OF COUNSEL THAT REPRESENTED HIS FIRST [PCR]. 3 Brady v. Maryland, 373 U.S. 83 (1963). 6 A-0798-16T4 POINT II [DEFENDANT'S] CASE DEFINES "FUNDAMENTAL INJUSTICE[,]" THE PASSAGE OF TIME IS AN INSUFFICIENT REASON NOT TO CORRECT AN INJUSTICE WHEN THE JUDCICIAL [SIC] SYSTEM HAS DENIED A DEFENDANT WITH FAIR PROCEEDINGS LEADING TO A JUST OUTCOME OR WHEN INADVERTENT ERRORS MISTAKENLY IMPACTED A DETERMINATION OF GUILT OR OTHERWISE WROUGHT A MISCARRIAGE OF JUSTICE. A. AFTER THE DENIAL OF CONSENT TO SEARCH THE VEHICLE WAS EXERCISED[,] THE VEHICLE WAS ILLEGALLY SEIZED AND HELD FOR THREE DAYS BEFORE A WARRANT WAS SOUGHT FOR A SEARCH VIOLATING THE FOURTH AMENDMENT. B. THE IDENTIFICATION PROCEDURES EMPLOYED BY THE LEAD INVESTIGATOR BALDWIN WAS IMPERMISSIBILY [SIC] SUGGESTIVE LEADING TO AN UNRELIABLE SAME EYEBROW IDENTIFICAITON. Having considered defendant's arguments in light of controlling procedural rules and substantive law, we affirm for the reasons set forth in the cogent written opinion of Judge Petrolle. We add only the following. Petitions for PCR are governed by time limitations, which are set forth in Rule 3:22-12. A second or subsequent petition for PCR must be filed within one year after the latest of: (A) the date on which the constitutional right asserted was initially recognized by the United States Supreme Court or the Supreme Court of New Jersey, if that right has been newly recognized by either of those Courts and 7 A-0798-16T4 made retroactive by either of those Courts to cases on collateral review; or (B) 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; or (C) the date of the denial of the first or subsequent application for [PCR] where ineffective assistance of counsel that represented the defendant on the first or subsequent application for [PCR] is being alleged. [R. 3:22-12(a)(2).] Here, defendant is seeking to appeal the denial of his second PCR petitions. Consequently, Rule 3:22-12(a)(2) governs. Under Rule 3:22-4(b), [a] second or subsequent petition for [PCR] shall be dismissed unless: (1) it is timely under [Rule] 3:22-12(a)(2); and (2) it alleges on its face either: (A) that the petition relies on a new rule of constitutional law, made retroactive to defendant's petition by the United States Supreme Court or the Supreme Court of New Jersey, that was unavailable during the pendency of any prior proceedings; or (B) that the factual predicate for the relief sought could not have been discovered earlier through the exercise of reasonable diligence, 8 A-0798-16T4 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 the relief sought would be granted; or (C) that the petition alleges a prima facie case of ineffective assistance of counsel that represented the defendant on the first or subsequent application for [PCR]. First, defendant's second PCR petition failed to comply with the time restrictions set forth in Rule 3:22-12(a)(2). Defendant waited more than one year after we denied his first PCR appeal to file his second petition for PCR in 2011. Thus, the petition is time-barred. See R. 3:22-12(a)(2); see also State v. Brewster, 429 N.J. Super. 387, 398 (App. Div. 2013). Second, defendant's third petition was filed almost six years after our decision in 2011, and almost four years after the dismissal of the second petition. Even were we to consider the third petition to relate back to the second petition, it would be time-barred. Third, defendant's arguments relating to ineffective assistance of trial counsel could have been raised in his first PCR. The predicate for those arguments, as Judge Petrolle held, could have been discovered and raised "more than a year, even more than a decade" prior to the third PCR. The judge also correctly 9 A-0798-16T4 held that the ineffective assistance of trial counsel arguments had been previously rejected on the merits. Fourth, even were the petitions not procedurally barred, it is clear from a review of the record that defendant's contentions that his trial and PCR counsel were ineffective lack merit. Defendant asserts only conclusory contentions that do not establish a prima facie showing of ineffective assistance. State v. Marshall, 148 N.J. 89, 158 (1997); see also State v. Cummings, 321 N.J. Super. 154, 170 (App. Div. 1999) ("[I]n order to establish a prima facie claim, a petitioner must do more than make bald assertions that he was denied the effective assistance of counsel. He must allege facts sufficient to demonstrate counsel's alleged substandard performance."). Finally, defendant's assertion of a right to a new trial based upon newly discovered evidence is more appropriately a motion for a new trial pursuant to Rule 3:20-1. That noted, in order for newly discovered evidence to warrant a new trial, the evidence must be "(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. Bey, 161 N.J. 233, 287 (1999); State v. Ways, 180 N.J. 171, 187 (2004); State v. Carter, 85 N.J. 10 A-0798-16T4 300, 314 (1981). All three prongs must be satisfied before a new trial is granted. Ways, 180 N.J. at 187. A defendant has the burden to establish each prong is met. State v. Smith, 29 N.J. 561, 573 (1959). Here, defendant's arguments relating to "new evidence" not only do not satisfy any of the Carter prongs, they are wholly without merit. Suffice it to state that the Kelly certification is not exculpatory. It is unclear what homicide is involved or exactly who the witness is who may have wrongly identified Kelly. Even if this witness was the same witness who later identified defendant, a prior incorrect identification would not have counterbalanced the overwhelming evidence against defendant. Affirmed. 11 A-0798-16T4

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Docket No.: a0844-16
Decided: 2018-07-10
Caption: FREDERICK CHATMAN v. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF NEWARK, ESSEX COUNTY
Status: unpublished
Summary:
PER CURIAM Petitioner appeals from a September 12, 2016 decision of the Commissioner of the Department of Education (Commissioner), denying his petition seeking tenure in the position of principal, and seeking reinstatement as principal at Harriet Tubman Elementary School (Tubman school) in the City of Newark State Operated School District (District). We affirm substantially for the reasons stated in the Commissioner's decision. We add these comments. Petitioner was promoted from vice principal to interim principal on August 22, 2012. That promotion was accomplished through the established, legal process of appointment by the Board of Education. Pursuant to the Teacher Effectiveness and Accountability for the Children of New Jersey Act (TEACHNJ), L. 2012, c. 26, as of August 6, 2012, time served in a position no longer sufficed to permit a newly-promoted principal to obtain tenure in the promotional position. Instead, a principal who was promoted after the Act's effective date of August 6, 2012, could not attain tenure without achieving an evaluation of "effective" or "highly effective" in two annual summative evaluations within 2 A-0844-16T4 the first three years of employment in the new position. N.J.S.A. 18A:28-6(b). Petitioner did not attain tenure under the TEACHNJ standards because he received annual ratings of "partially effective" and "ineffective" for the two school years following his August 22, 2012 appointment. As a result, he was removed from the principal position and returned to a vice principal position. He filed a petition with the Commissioner, claiming a right to tenure as a principal based on the pre-TEACHNJ standards, set forth in N.J.S.A. 18A:28-6(a). Prior to his appointment as interim principal, petitioner held the appointed title of vice principal at the Tubman school. There was evidence that, after the appointed principal at the Tubman school retired in December 2011, petitioner unofficially functioned as the acting principal until the end of that school year. However, during that time frame, the Board did not appoint petitioner to the acting principal position or otherwise approve his appointment to any position other than vice principal. On April 27, 2012, petitioner wrote a letter to the District Superintendent describing himself as a "principal" and expressing his hope that he could continue in that position. The Superintendent did not respond, but on May 25, 2012, the Board served petitioner with a written notice that his position at the 3 A-0844-16T4 Tubman school had been eliminated effective at the end of the school year, and he would have to find another position in the District. The letter did not acknowledge that petitioner held any position at the school other than vice principal. However, the letter made clear that whatever position petitioner held at that time was eliminated. According to petitioner, in June and July 2012, he interviewed for a principal position. On August 22, 2012, petitioner was appointed as an interim principal, a position for which he signed a contract. A September 24, 2012 letter, confirming petitioner's August 22, 2012 appointment, stated that petitioner's "Current Position" was "Vice Principal" and his "New Position" was "Interim Principal." In her decision, the Commissioner rejected petitioner's claim that his unofficial, un-appointed service filling in for the former principal entitled him to be grandfathered under the old tenure standards set forth in N.J.S.A. 18A:28-6(a).1 Rather, the Commissioner construed N.J.S.A. 18A:28-6(b) "to mean that the date upon which a teaching staff member is approved by the board is the relevant date for determining whether new tenure rules established 1 The Commissioner rejected an administrative law judge's initial decision in petitioner's favor. The initial decision relied heavily on pre-TEACHNJ administrative decisions, concerning the calculation of service credit for tenure purposes. 4 A-0844-16T4 pursuant to TEACHNJ, or previous tenure rules, apply." The Commissioner concluded: "In the instant matter, petitioner was officially promoted from vice principal to interim principal on August 22, 2012, which is after August 6, 2012. As such N.J.S.A. 18A:28-6(b) applies because petitioner was promoted subsequent to the effective date of TEACHNJ." The Commissioner reasoned that the time-in-service issue on which petitioner relied was not dispositive, because to obtain tenure, petitioner needed good evaluations in addition to service credit: The Commissioner need not reach the issue of whether petitioner assumed the duties and responsibilities of the principal and served as acting principal in an un-appointed capacity because – even if petitioner could tack on the time served as acting principal in an un-appointed capacity toward the time required to earn tenure – he is ineligible for tenure due to his evaluations falling below the required ratings. Our review of the Commissioner's decision is limited. We will not disturb an agency's final decision so long as it is supported by substantial credible evidence and is consistent with applicable law. See In re Proposed Quest Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 385 (2013). We review an agency's legal interpretations de novo. DiNapoli v. Bd. of Educ. of Twp. of Verona, 434 N.J. Super. 233, 236 (App. Div. 2014). However, 5 A-0844-16T4 we give "considerable weight" to an agency's reasonable interpretation of a statute it is charged with enforcing. Kletzkin v. Spotswood Bd. of Educ., 136 N.J. 275, 278 (1994) (citation omitted); see DiNapoli, 434 N.J. Super. at 237. In light of those standards, we find nothing unreasonable in the Commissioner's interpretation of N.J.S.A. 18A:28-6(b). In enacting TEACHNJ, the Legislature intended to benefit children, by improving the quality of education. See Pugliese v. State- Operated Sch. Dist. of City of Newark, 440 N.J. Super. 501, 508 (App. Div. 2015). To that end, TEACHNJ bases a principal's tenure rights on demonstrated effectiveness in the position, as well as service credit. The Commissioner's interpretation of TEACHNJ serves that purpose and is consistent with the statutory language. See Kletzkin, 136 N.J. 278. Affirmed. 6 A-0844-16T4

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Docket No.: a0895-17
Decided: 2018-07-10
Caption: IN THE MATTER OF THE CIVIL COMMITMENT OF A.R.
Status: unpublished
Summary:
PER CURIAM A.R. appeals from the October 6, 2017 order of the Law Division, continuing his commitment to the Special Treatment Unit (STU), the secure facility designated for the custody, care and treatment of sexually violent predators pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to - 27.38. For the reasons that follow, we affirm. A.R., who is now forty-four years old, committed his first non-violent sexual offense in 1995 and was sentenced to three years of probation for sexually touching two women in a park. While on probation, he committed three additional non-violent sexual offenses against other female victims from 1996 to 1998, each resulting in additional sentences to probation. In 2003, A.R. raped a thirteen-year-old girl at knifepoint in her home while her father was at work. He later admitted that he knew the family and often saw the young victim when he used to work with her father. In 2004, A.R. pled guilty to aggravated sexual assault with a weapon and was sentenced to a fifteen year prison term and community supervision for life (CSL), and required to comply with the provisions of "Megan's Law," N.J.S.A. 2C:7-1 to -23. A.R. initially was evaluated at the Adult Diagnostic and Treatment Center at Avenel (ADTC) but was found ineligible to serve his sentence at the facility. Later, A.R. was transferred to and received treatment at the ADTC from August 2011 until March 2015, where "[h]e attended groups and focused issues around family background and dysfunction and criminal attitudes." A.R. later withdrew from treatment for some time in 2 A-0895-17T5 2012, and upon his return to the facility, he was placed on Level 3 of the treatment. Prior to his release, the State applied for A.R. to be civilly committed under the SVPA and on October 4, 2016, the Law Division civilly committed him to the STU. On October 6, 2017, Judge Vincent N. Falcetano, conducted A.R.'s first review hearing, which is the subject of this appeal. At the hearing, A.R. did not challenge the fact he committed the requisite sexually violent criminal offense or suffered from a mental abnormality or personality disorder which predisposes him to commit acts of sexual violence.1 The focus of 1 The Supreme Court has explained the proofs required at the initial hearing and subsequent reviews as follows: At the commitment hearing, the State must establish three elements: (1) that the individual has been convicted of a sexually violent offense; (2) that he suffers from a mental abnormality or personality disorder; and (3) that as a result of his psychiatric abnormality or disorder, "it is highly likely that the individual will not control his or her sexually violent behavior and will reoffend[.]" Although the first two elements derive directly from the statute, to comport with substantive due process concerns, this Court interpreted the third statutory element as requiring the State to show that a person is "highly likely," not just "likely," to sexually reoffend. (continued) 3 A-0895-17T5 the trial was the third required finding that A.R. is highly likely to reoffend. At the hearing, the State relied on the unrefuted expert testimony of psychiatrist Roger Harris, M.D., who opined that A.R.'s risk to sexually reoffend remained high. Because A.R. elected not to participate in the evaluation, Harris was unable to interview A.R. However, the doctor prepared a report on September 11, 2017, based upon his review of clinical certificates, presentence reports, prior Treatment Progress Review Committee (TPRC) reports, STU treatment records, and related documents, which were admitted into evidence. The State also admitted into evidence without objection a report prepared by Debra Roquet, Psy. D., a member of the STU's TPRC, which largely supported Harris's findings and conclusions. Both Harris and Roquet addressed the likelihood of A.R. reoffending if he was no longer committed. Harris's report highlighted A.R.'s prior sexual offenses and stated that several involved young girls and children, and were "frotteuristic or exhibitionistic in nature." He also reported that many years after the 2003 offense, A.R. admitted (continued) [In re Civil Commitment of R.F., 217 N.J. 152, 173 (2014) (citations omitted).] 4 A-0895-17T5 to three separate doctors his attraction to the thirteen-year- old girl, and that he had a "tendency to seek out vulnerable persons," which "made him feel powerful." Harris testified that A.R.'s sex offending history demonstrated that he is unable to control his sexual drive "in spite of his convictions and losing his liberty." He also noted that empirical data shows that those who violate parole, as A.R. had in the past, had an "increase[d] . . . risk to sexually reoffend in the future[,]" which further supported his conclusion that A.R. is at a higher risk of reoffending because he is unable to control his sexual impulses. Harris also testified that A.R.'s progression of sexual acts and even his minor offenses "illustrate his cognitive distortions[.]" He stated that in 2015, A.R. told a physician that he sexually touched a woman because "he thought the woman was purposely making her breasts go [up] and down while walking in the park" in order to attract his attention. Harris testified that this "illustrates several layers of his inability to regulate himself, to overly interpret sexual issues," and that "he thinks things are directed at him." In addition, Harris explained that A.R. exhibits these same characteristics while incarcerated. For example, when he is challenged, "he gets very upset and becomes quite aggressive," and has reported that "he 5 A-0895-17T5 feels that officers are targeting him and making sexual comments to him." Harris stated further that another factor that supported his assessment of A.R. is that "he has conflict within his peer relationships[.]" Specifically, he stated that A.R. admitted to another physician that he smacked his girlfriend because "he felt she was harassing him." Harris also determined that even though A.R. had "consensual sexual relations" with his girlfriend and a wife in a previous marriage, he still needed to "sexually gratify himself . . . by engaging in . . . other illegal paraphilic acts." With respect to his substance abuse history, Harris testified that A.R. "reported drug use as a way to avoid prison sentencing[,]" and was admitted to a drug program, but "left that program without consent[.]" The doctor commented that with A.R., "it's hard to know what's accurate and what is not accurate," and he could not determine whether A.R. had a drug problem or was being manipulative when seeking drug treatment. Similarly, Harris found that at times it appeared as though A.R. "malinger[ed] and feign[ed] psychiatric symptoms to once again attempt to decrease his responsibility [for] his behavior." Harris reviewed A.R.'s treatment history and found that A.R. had not improved. He stated that prior to going to STU, 6 A-0895-17T5 A.R. engaged in "sex offender treatment," where he had poor attendance and did not complete the program. Since his time at STU, Harris testified that A.R. "is difficult to engage[,]" and "is essentially just learning how to use treatment at this point[.]" Based upon his review, the doctor concluded that A.R. "has demonstrated very poor volitional control," and "cognitive distortion," which affects him emotionally. Harris diagnosed A.R. with other specified paraphilic disorder, other personality disorder with antisocial traits, and borderline intellectual functioning. He explained that A.R. does not meet the "full criteria for antisocial personality disorder," but he has many traits including, "impulsivity, irritability, . . . aggressiveness, reckless disregard for the safety of others, [and] failure to conform to social norms." The doctor also diagnosed A.R. with cocaine and alcohol use disorders, although he reminded the court that A.R.'s reporting of his drug use history was unreliable. If accurate, Harris concluded that A.R.'s drug use "lowers his inhibitions," making it more difficult to control his sexual drive and increasing the chances that he will sexually act out. 7 A-0895-17T5 Harris also reported that A.R. scored seven on the Static- 99R,2 indicating a "well above average" risk to sexually reoffend. However, he pointed out that "[t]his is not a full estimate for his risk to sexually offend" because it "does not address dynamic or psychological factors[,]" such as A.R.'s "multiple deviant arousals," failed supervision, poor cognitive problem solving and poor self-regulation. According to Harris, A.R. "remains a high risk to sexually reoffend and continues to meet the criteria for civil commitment under" the statute. Roquet's report that was prepared after the TPRC examined A.R. on September 13, 2017, stated that A.R. was placed in Phase Two3 when he was civilly committed to the STU. Based on A.R.'s treatment plan review from May 2017, the committee observed that the treatment team recommended that A.R. remain in the same phase. The TPRC concluded that A.R.'s progress in treatment has 2 "The Static-99 is an actuarial test used to estimate the probability of sexually violent recidivism in adult males previously convicted of sexually violent offenses." R.F., 217 N.J. at 164 n.9. Our Supreme Court "has explained that actuarial information, including the Static-99, is 'simply a factor to consider, weigh, or even reject, when engaging in the necessary factfinding under the SVPA.'" Ibid. (quoting In re Commitment of R.S., 173 N.J. 134, 137 (2002)). 3 At the hearing, Harris defined Phase Two of treatment at STU as "the phase where men learn how to use treatment[,]" and "how to engage with each other and . . . how the therapeutic process works." 8 A-0895-17T5 not mitigated his risk for sexual recidivism, and that he is "highly likely to reoffend if not confined to the STU." Roquet explained that there are several indicators that support the TPRC's finding, including A.R.'s Static-99 score, his high range dynamic risk factors, antisocial personality, psychopathic personality traits, and substance abuse. According to the report, A.R. should continue in Phase Two as he is "not yet being open in treatment" and is still in the early phase of treatment. In an oral opinion placed on the record after the presentation of the evidence, Judge Falcetano found by clear and convincing evidence that A.R. was a sexually violent predator in need of continued civil commitment in a secure facility under the SVPA. The judge found Harris "qualified to render the opinions that he did, and [found] his testimony to be eminently credible." He observed that the STU report that was referenced in Harris's testimony, indicated that A.R. "is still adapting to the [facility] and to treatment, that he presents with a number of risk factors which need to be addressed over time[,]" and he "scores well above average in the risk to reoffend category" that requires him to continue in Phase Two of his current treatment. 9 A-0895-17T5 The judge concluded by clear and convincing evidence that A.R. "suffers from a mental abnormality or personality disorder that . . . can only be mitigated by sex offender treatment," that the disorder "affects the person cognitively, emotionally or volitionally, which pred[isposes] the person to sexual violence[,]" and that A.R. is "presently highly likely to sexually reoffend, and in need of confinement at the STU." On the same day, Judge Falcetano entered a memorializing order continuing A.R.'s commitment and this appeal followed. On appeal,4 A.R. again does not challenge the finding that he committed a sexually violent offense, and that he was "properly diagnosed with a mental abnormality or personality disorder" that predisposes him to commit acts of sexual violence. Rather, he argues that Judge Falcetano erred in concluding that the State met its burden of proof that he is highly likely to reoffend because the judge "did not weigh the evidence properly[,]" and if he had, he "would have come up with a different conclusion[.]" A.R. relies on In re Civil Commitment of V.A., 357 N.J. Super. 55 (App. Div. 2003), arguing that the judge should have 4 By agreement of the parties and with the permission of the court, the appeal was argued without briefs. We summarize the points raised by appellant based upon the presentation at oral argument. 10 A-0895-17T5 considered the goal of gradual de-escalation in restraints permitting a conditional release because he "no longer meets the criteria for civil commitment." He also asserts that the judge "inappropriately gave weight to other sex offenses" that only involved "frotteuristic" behavior "to make [his] determination that A.R. was highly likely to commit acts of sexual violence." Further, A.R. contends that given his time at ADTC and STU, "he has had many years of exposure to sex offender treatment," which is sufficient "to make a finding that [he] is no longer highly likely" to reoffend. We reject these arguments and affirm. "The scope of appellate review of a commitment determination is extremely narrow. The judges who hear SVPA cases generally are 'specialists' and 'their expertise in the subject' is entitled to 'special deference.'" R.F., 217 N.J. at 174 (citations omitted). "The SVPA authorizes the involuntary commitment of an individual believed to be a 'sexually violent predator' as defined by the Act. The definition of 'sexually violent predator' requires proof of past sexually violent behavior through its precondition of a 'sexually violent offense.'" In re Commitment of W.Z., 173 N.J. 109, 127 (2002) (citation omitted). It also requires that the person "suffer[] from a mental abnormality or personality disorder that makes the person 11 A-0895-17T5 likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." Ibid. (quoting N.J.S.A. 30:4-27.26). "[T]he mental condition must affect an individual's ability to control his or her sexually harmful conduct." Ibid. "Inherent in some diagnoses will be sexual compulsivity (i.e., paraphilia). But, the diagnosis of each sexually violent predator susceptible to civil commitment need not include a diagnosis of 'sexual compulsion.'" Id. at 129. The same standard that supports the initial involuntary commitment of a sex offender under the SVPA applies to the annual review hearing. See In re Civil Commitment of E.D., 353 N.J. Super. 450, 452-53 (App. Div. 2002). As noted earlier, in either case, "'the State must prove by clear and convincing evidence that the individual has serious difficulty controlling his or her harmful sexual behavior such that it is highly likely that the person will not control his or her sexually violent behavior and will reoffend.'" W.Z., 173 N.J. at 133-34. As the fact finder, while "[a] trial judge is 'not required to accept all or any part of [an] expert opinion[,]'" he or she may "place[] decisive weight on [the] expert." R.F., 217 N.J. at 156, 174 (second alteration in original) (citation omitted). Furthermore, "an appellate court should not modify a trial 12 A-0895-17T5 court's determination either to commit or release an individual unless 'the record reveals a clear mistake.'" Id. at 175 (quoting In re D.C., 146 N.J. 31, 58 (1996)). We find no clear mistake on this record. We are satisfied that the record amply supports Judge Falcetano's decision, finding that A.R. suffers from paraphilia, among other mental abnormalities or personality disorders, a necessary predicate for continued commitment under the SVPA. See, e.g., In re Civil Commitment of D.Y., 218 N.J. 359, 381 (2014). Based on credible expert testimony, the judge determined that A.R.'s disorders, past behavior and treatment progress demonstrated that he was highly likely to engage in acts of sexual violence unless confined. The judge's determination, to which we owe the "utmost deference" and may modify only where there is a clear abuse of discretion, In re J.P., 339 N.J. Super. 443, 459 (App. Div. 2001), was proper. Contrary to A.R.'s assertions, this was not a case where the State was "unable to justify the continued confinement of the committee based on the progress the committee" has made so as to warrant "intermediate levels of restraint." V.A., 357 N.J. Super. at 64 (quoting E.D., 353 N.J. Super. at 456). Affirmed. 13 A-0895-17T5

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Docket No.: a0919-16
Decided: 2018-07-10
Caption: STANLEY L. NIBLACK v. UNIVERSITY CORRECTIONAL HEALTHCARE
Status: unpublished
Summary:
PER CURIAM Plaintiff Stanley L. Niblack, a former inmate at Northern State Prison ("NSP"), appeals the September 22, 2016 orders granting summary judgment in favor of defendants, Francis Meo, M.D., Deepa Rajiv, M.D., and granting a dismissal in lieu of filing an answer in favor of defendant, Kenya Collins, on plaintiff's complaint for alleged deliberate indifference to his medical condition, in violation of his constitutional rights, alleged violations under the Federal and New Jersey Civil Rights Acts, and his ancillary claims. We affirm. I. There is no dispute as to most of the facts developed in plaintiff's brief, considering them in the light most favorable to him. See Robinson v. Vivirito, 217 N.J. 199, 203 (2014) (citation omitted). At the relevant times, plaintiff was incarcerated at NSP in Delmont. Plaintiff suffers from 3 A-0919-16T4 hypoglycemia, diabetic peripheral neuropathy, and degenerative joint disease. As a result, he was prescribed medications when he was previously incarcerated at Southern State Correctional Facility ("Southern State"). Specifically, he was prescribed Neurontin for his diabetic peripheral neuropathy, and Mobic for his degenerative joint disease. When he was transferred to NSP on May 1, 2014, he was taking his "preferred" pain medication, Neurontin, which was switched at NSP to Naproxen and aspirin, which he contended did not alleviate his pain. Plaintiff asserts that Neurontin is a "non-formulary" drug, which is not on an approved "list" but, nonetheless, could have been prescribed, as opposed to a "formulary" drug, which a doctor could have readily prescribed to him. Movants contend that Neurontin has been "abused" amongst inmates. Consequently, inmates prescribed Neurontin are often switched to a "formulary" medication to test their efficacy. If the formulary drug proves ineffective, then a request to the New Jersey Department of Corrections ("DOC") Medical Director can be submitted to reinstate the non-formulary medication. On May 6, 2014, Dr. Meo examined plaintiff and prescribed Metformin 500 mg, a 2400 calorie American Diabetes Association ("ADA") diet, which included an afternoon snack, and finger sticks to monitor his hypoglycemia. On May 6, 2014, plaintiff filed a 4 A-0919-16T4 grievance on the grounds that his healthcare concerns were "unsatisfactorily answered" by healthcare personnel and NSP Assistant Collins, a non-medical employee. According to his medical chart, Dr. Meo evaluated plaintiff again on May 13, 2014. His A1c level (an indicator of the effectiveness of the diabetes management plan) was 12.0, indicating an elevated glucose level. In response, Dr. Meo adjusted plaintiff's medications and continued glucose monitoring. On May 20, 2014, plaintiff submitted an Inmate Remedy System Form ("IRSF"), complaining that his medications were changed without his knowledge or the benefit of an examination by a physician. A second IRSF was submitted by plaintiff on May 22, 2014, stating as follows: I am in excruciating diabetic nerve pain. I've been taking Neurontin for many years prescribed by a doctor. Since coming to this facility and having to endure the incompetency of this [medical] staff I am now gravely suffering for it. I've been without the [medication] for two weeks or so and [have] been in constant pain without it ever since. I believe it's a Dr. Pereira that has refused to renew this medication--someone I have never ever seen. This is clearly a deliberate indifference to my medical needs. [Dr. Meo] has taken me off [C]olyburide and lowered my medications drastically on MGR only twice a day. This has drastically shot my sugar to over [200] placing me at risk of harm or even death due to this. 5 A-0919-16T4 On May 30, 2014, Dr. Meo again reviewed plaintiff's glucose levels and found them elevated. In response, Dr. Meo increased plaintiff's dosage of Metformin and ordered more finger stick testing. Dr. Meo prescribed another diabetes medication called "Glipizide" on June 4, 2014. Plaintiff's medical status was evaluated again by Dr. Meo on June 16, 2014, who renewed the 2400 ADA diet but discontinued the afternoon snack as "medically unnecessary" because plaintiff's "glycemia ha[d] been generally well controlled" and "[h]is A1c ha[d] always been above the desired proportion for a diabetic person (under 7%) without clinical compromise" according to his medical chart. Plaintiff continued to assert that Naproxen was ineffective in treating his "excruciating" diabetic peripheral neuropathy pain, and that he wanted to resume taking Neurontin. On June 9, 2014, plaintiff wrote to Margaret Reed, a prison liaison, renewing his complaint and explaining the medical history delineated previously. He also conferred with several nurses, and the patient advocate, and sent letters in support of his requests to various NSP personnel. A "sick call" slip was also submitted by plaintiff on this date with a complaint of "poor vision" and not raising diabetic pain issues. Dr. Meo evaluated plaintiff on June 9, 2014, and plaintiff requested a prescription for Neurontin. 6 A-0919-16T4 Dr. Meo obliged, and issued a "Non-Formulary Drug Request Form" for Neurontin on that date. The form inadvertently did not state that plaintiff had been taking Neurontin when he was transferred to NSP. Consequently, Dr. Rajiv, the Medical Director at NSP, denied Dr. Meo's request for Neurontin on July 8, 2014, and she suggested that a formulary medication be prescribed instead. Reed advised plaintiff that snacks are only ordered for patients who require daily insulin, which was not his medical status at that time. Another IRSF was filed by plaintiff on June 19, 2014, reiterating his prior complaints. He also confirmed that he submitted two sick call slips, as instructed by NSP representatives, for failure to have his preferred medication (Neurontin) renewed. Dr. Meo renewed an order for finger sticks on July 1, 2014. On July 16, 2014, plaintiff wrote to Collins, objecting to her upholding the decisions of the medical professionals in respect of his being denied the medical treatment he sought. Thereafter, on August 8, 2014, Michelle Borowski, D.O., issued a second Non-Formulary Drug Request Form for Neurontin, which did not specify a dosage or indicate that it was previously 7 A-0919-16T4 prescribed for plaintiff. Consequently, Dr. Rajiv denied the request on August 14, 2014. On August 22, 2014, Dr. Meo evaluated plaintiff again and assessed his cardiac and metabolic status. Dr. Meo informed plaintiff at that time that Dr. Rajiv denied the request for Neurontin, without performing a consultation or examination. Since plaintiff was not insulin-dependent on August 22, 2014, he was denied his request for an afternoon snack, in accordance with DOC guidelines. Dr. Meo prescribed him Glutose Gel (a non- prescription medication) to be taken, as needed, if plaintiff felt his blood sugar level was too low. The medical record also states that on this date, Sharmalie Perera, M.D., revised Dr. Borowski's previous Request Form to state that 300 daily mg of Neurontin was being requested for 365 days, and that plaintiff was "currently" being prescribed this medication. There is no dispute that plaintiff was taking Neurontin as of August 22, 2014. During the period in question, only patients prescribed regular insulin injections were provided an afternoon snack, according to the DOC dietician. Notwithstanding this protocol, plaintiff was provided afternoon snacks as far back as May 16, 2014, even though he did not become insulin dependent until March 12, 2015. 8 A-0919-16T4 As to Mobic, plaintiff was prescribed this drug on an "as needed" basis while incarcerated at Southern State. On August 8, 2014, Dr. Meo renewed a prescription for Mobic, and discontinued Naproxen, in response to plaintiff's sick call on August 8, 2014. The prescription for Mobic continued to be renewed thereafter. At his deposition, plaintiff testified that during his Administrative Segregation, he was given afternoon snacks periodically, even though not medically indicated. This was in response to his persistence on this issue. He testified "at times I was receiving a snack" . . . "when I was actually taking finger sticks." It was noted in the medical record on January 21, 2015, that plaintiff "refuse[d] a diet tray because in the past they wouldn't give him a snack." Another entry dated February 12, 2015, noted that plaintiff "is non [-] compliant with diet," and despite admonitions to the contrary by the doctors, "he will refuse all of the recommended interventions to control his disease" unless "he can have the snack he wants." Ostensibly, there was a lack of motivation on the part of plaintiff "to control his disease" as stated in his medical chart. In plaintiff's opinion, at NSP, "the food is not as high of a level, acceptable level, to bring my sugar to an acceptable level." At his deposition, plaintiff testified that "an apple or orange is not sufficient for a 9 A-0919-16T4 diabetic" and that he should have been [given] "something with meat on it or peanut butter and jelly" or a "cheese sandwich." Despite plaintiff's contention that Doctors Meo and Rajiv failed to "consult with or examine [him] prior to denying or discontinuing pain medications", no permanent injuries were sustained by plaintiff emanating from his allegations of not receiving Neurontin or "adequate snacks." In an oral decision on defendants' summary judgment motion, Judge Dennis F. Carey, III determined that "there's nothing in the record that suggests that the doctors and their assistants did anything . . . that would rise to the level . . . [of] intentional or culpable mistreatment of this plaintiff." In doing so, the judge found: The mere disagreement between the prisoner and the treating physicians over medical treatment does not rise to the level . . . of deliberate indifference. Then, if we give [plaintiff] the benefit of every inference, certainly the mere disagreement . . . is the best that [he] can prove. With respect to Collins, the judge aptly concluded "that clearly non-medical officials could not be liable under the facts of this case for decisions that were medical in nature." As to Dr. Meo, Dr. Rajiv, and Collins, Judge Carey also found that "there's nothing in the records that suggest[s] that the doctors and their assistants did anything that would . . . rise 10 A-0919-16T4 to the level . . . [of] intentional or culpable mistreatment of this plaintiff." As to the civil rights claims brought under 42 U.S.C. § 1983 and N.J.S.A. 10:6-1, the judge determined that Dr. Meo, Dr. Rajiv, and Collins are not "person[s]" as defined by the Code or statute, and he dismissed those allegations with prejudice. Judge Carey also dismissed, with prejudice, plaintiff's claims pled generally under the New Jersey Administrative Code; the Americans with Disabilities Act pursuant to 42 U.S.C. § 12101; and the federal Rehabilitation Act, 29 U.S.C. § 794. On appeal, plaintiff argues that Dr. Meo and Dr. Rajiv wrongfully failed to provide him prescribed chronic pain medications and snacks in order to maintain his hypoglycemic condition; and that they failed to consult with or examine him prior to modifying his medications, resulting in his excruciating pain and potentially exposing him to a risk of harm. As to Collins, plaintiff contends that she failed to adequately staff the medical department; failed to provide an effective sick call processing system for prisoners in Administrative Segregation; and that she failed to remedy his medical concerns in a prompt fashion. Dr. Meo, Dr. Rajiv, and Collins urge us to affirm the court's orders. 11 A-0919-16T4 II. Claims against Dr. Meo and Dr. Rajiv This court reviews a ruling on summary judgment de novo, applying the same legal standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346 (2017); Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016). Thus, this court considers, as the trial judge did, "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law," Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). Summary judgment must be granted "if the pleadings, depositions, 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." Templo Fuente, 224 N.J. at 179 (quoting R. 4:46-2(c)). As our Supreme Court has instructed: a determination whether there exists a "genuine issue" of material fact that preludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit 12 A-0919-16T4 a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. Brill, 142 N.J. at 540. "To defeat a motion for summary judgment, the opponent must 'come forward with evidence that creates a genuine issue of material fact.'" Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) (quoting Horizon Blue Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App. Div. 2012)). "[C]onclusory and self-serving assertions by one of the parties are insufficient to overcome the motion." Puder v. Buechel, 183 N.J. 428, 440-41 (2005) (citations omitted). If there is no genuine issue of material fact, this court must then "decide whether the trial court correctly interpreted the law." DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citation omitted). "When no issue of fact exists, and only a question of law remains, [this court] affords no special deference to the legal determinations of the trial court." Templo Fuente, 224 N.J. at 199 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). III. We first address the violation of constitutional claims presented by plaintiff pursuant to the Eighth Amendment, as enforced through the Federal and State Civil Rights Acts. Through its prohibition on "cruel and unusual punishments," the Eighth 13 A-0919-16T4 Amendment to the United States Constitution requires prison officials to provide humane conditions of confinement, which includes the provision of adequate medical treatment. Estelle v. Gamble, 429 U.S. 97, 103 (1976). Accordingly, "deliberate indifference to a prisoner's serious illness or injury states a cause of action under [42 U.S.C.] § 1983." Id. at 105 (emphasis added). We have explained the essential elements of a civil rights action based upon a claim of cruel and unusual punishment: [A] prison official violates the Eighth Amendment only when two requirements are met. First, the deprivation alleged must be, objectively, 'sufficiently serious'; a prison official's act or omission must result in the denial of 'the minimal civilized measure of life's necessities.' The second requirement follows from the principle that 'only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.' To violate the Cruel and Unusual Punishments Clause, a prison official must have a 'sufficiently culpable state of mind.' In prison-conditions cases that state of mind is one of 'deliberate indifference' to inmate health or safety[.] [Bernstein v. State, 411 N.J. Super. 316, 336 (App. Div. 2010) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)).] "Deliberate indifference" consists of three components: "(1) subjective knowledge or a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than mere negligence." 14 A-0919-16T4 McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999). It may be established by a showing of care so cursory as to amount to no treatment at all. Ibid. However, a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Farmer, 511 U.S. at 837. As to the first factor, plaintiff failed to sustain his burden because Dr. Meo and Dr. Rajiv addressed his medical history, prescribed what objectively appeared to be appropriate medications to address his symptoms and conditions, and monitored him frequently. This is evidenced by plaintiff's medical record that his glycemia and A1c "had been generally well controlled." As to the second factor, there is no evidence to suggest that Dr. Meo or Dr. Rajiv "disregarded" any risk. Indeed, plaintiff's assertion that Dr. Meo made [him] "vulnerable to go into a diabetic coma or shock" is without merit. As to the third factor, there was no conduct exhibited by Dr. Meo or Dr. Rajiv that resulted in plaintiff suffering from a diabetic episode or coma. Fortunately for plaintiff, there is no competent proof he was ever compromised medically or subjected to 15 A-0919-16T4 a risk for a "real possibility of permanent injury." Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). The medical record is replete with references to plaintiff's own non-compliance. He advised prison officials that "he will refuse all of the recommendations to control his disease" unless "he can have the snack he wants." This clearly militates against a claim of "deliberate indifference" and a culpable state of mind on the part of the defendant doctors. Plaintiff also refused a diabetic meal tray prescribed by a doctor. Governed by the principles, we are satisfied that the judge correctly found no deliberate indifference. The mere assertion by plaintiff that Dr. Meo was deliberately indifferent to his medical needs because he "only intermittently ordered the proper snack" for him lacks the requisite elements to constitute an Eighth Amendment cruel and unusual punishment violation. There is lack of proof of even a "real possibility" of permanent injury to sustain this cause of action. Ibid. "Mere disagreement" as to medical judgment calls made by Dr. Meo and Dr. Rajiv does not rise to the level of an Eighth Amendment violation, as found by the judge. No expert opinion was presented on behalf of plaintiff. 16 A-0919-16T4 IV. Claims against Collins We begin our analysis with respect to defendant Collins by stating the applicable standard under the dismissal provision, Rule 4:6-2(e), which is well established. When reviewing a litigant's complaint to determine the adequacy of the pleaded claims, the appropriate test is a liberal one. Printing Mart- Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (citation omitted). As the Supreme Court instructed, the review must begin by determining "whether a cause of action is 'suggested' by the facts." Ibid. (quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). The Court further explained that courts must review complaints "in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim[.] Ibid. (quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252 (App. Div. 1957)). The review of the complaint's allegations should take "a generous and hospitable approach," and afford plaintiff every "reasonable inference" from the alleged facts. Ibid. Our inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint. Rieder v. Dep't of Transp., 221 N.J. Super. 547, 552 (App. Div. 1987) (citation omitted). 17 A-0919-16T4 Here, Collins filed a Rule 4:6-2(e) motion to dismiss the complaint with prejudice, or in the alternative, summary judgment. In any event, our review is de novo. Applying these standards, we affirm the judge's decision finding no deliberate indifference as to Collins. In relying upon the instructive authority in Spruill, 372 F.3d at 218, the judge duly found plaintiff did not establish deliberate indifference. The Spruill court differentiated between medical and non-medical prison officials. "If a prisoner is under the care of medical experts . . . , a non-medical prison official will generally be justified in believing that the prisoner is in capable hands. This follows naturally from the division of labor within a prison. Holding a non-medical prison official liable in a case where a prisoner was under a physician's care would strain this division of labor." Id. at 236 (citing Durmer v. O'Carroll, 991 F.2d 64 (3d Cir. 1993)). Thus, the judge properly dismissed the complaint against Collins as it states no basis for relief. The trial court ruled that plaintiff failed to establish a prima facie case under Federal and State Civil Rights standards. We agree. Because plaintiff has not made a prima facie showing of any constitutional violation under the Eighth Amendment or otherwise, there is no need for us to elaborate upon issues of qualified 18 A-0919-16T4 immunity. For sake of completeness, we simply note that, even assuming a constitutional violation existed here, defendants would clearly enjoy immunity from liability under the circumstances presented. In re Petition for Review of Op. 552 of Advisory Comm. on Prof'l Ethics, 102 N.J. 194, 199 (1986) (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)). In his brief, plaintiff contends that movants "violated their contracts" to provide adequate health care; that they are not entitled to sovereign immunity; and that he was "prejudiced" because the motions were decided prematurely as discovery was incomplete. Here, the judge found that the medical care plaintiff received from Dr. Meo and Dr. Rajiv was not "constitutionally" deficient, a conclusion we have already affirmed, supra. As a non-medical prison official, Collins is not liable for any alleged failure to intervene in decisions relative to plaintiff's medical care, or second-guess the doctors' judgment. Plaintiff does not have an absolute right to a formulary medication of his choice. An inmate does not have carte blanche access to health care. Deliberate indifference to medical needs does not establish an Eighth Amendment violation unless such needs are "'serious.'" Hudson v. McMillian, 503 U.S. 1, 8 (1992). Applying these principles, we are satisfied that plaintiff 19 A-0919-16T4 has failed to make a sufficient showing under the theories he espouses to disturb the judge's findings. Plaintiff is simply not entitled as an inmate to receive a formulary drug or snack on demand. Therefore, the motions for summary judgment and dismissal were duly granted. As to the issue of discovery, it "need not be undertaken or completed if it will patently not change the outcome." Minoia v. Kushner, 365 N.J. Super. 304, 307 (App. Div. 2004). Nothing has been presented to suggest that further discovery would change the outcome here, especially since the issues are largely legal, and not factual, in nature. Plaintiff's remaining claims of a violation of the New Jersey Administrative Code, Americans with Disabilities Act, and Rehabilitation Act arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). Affirmed. 20 A-0919-16T4

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Docket No.: a1514-16
Decided: 2018-07-10
Caption: CHARMAINE CASTELLI v. ALLSTATE INSURANCE COMPANY
Status: unpublished
Summary:
PER CURIAM In this insurance coverage case, defendant Allstate Insurance Company (Allstate) appeals from the August 7, 2015 Law Division order, denying its motion for summary judgment and granting summary judgment to plaintiff Charmaine Castelli. Allstate also appeals from the September 18, 2015 order denying its motion for reconsideration; the July 22, 2016 order denying its motion to vacate the prior orders; and the November 7, 2016 consent judgment.1 We reverse. We derive the following facts from the evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in the light most favorable to the party who opposed entry of summary judgment. Edan Ben Elazar v. Macrietta Cleaners, Inc., 230 N.J. 123, 135 (2017). On September 22, 2011, plaintiff was injured while a passenger in a vehicle owned and operated by Luis Ruiz. Ruiz's vehicle was struck in the rear by a vehicle owned by Elizabeth Rodriguez- Garcia and operated by Cindy Parreno.2 GEICO insured Rodriguez-Garcia's vehicle under a policy that had a $15,000 bodily injury limit. Allstate insured Ruiz's 1 Allstate consented to entry of judgment in the amount of $85,000. The consent judgment is appealable because it reserved Allstate's right to appeal the coverage issue and made payment contingent on the outcome of this appeal. See Whitfield v. Bonanno Real Estate, 419 N.J. Super. 547, 550-51 and n. 3 (App. Div. 2011); Janicky v. Point Bay Fuel, Inc., 410 N.J. Super. 203, 207 (App. Div. 2009). 2 We shall sometimes refer to Rodriguez-Garcia and Parreno collectively as the tortfeasors. 2 A-1514-16T3 vehicle. The policy listed Ruiz as the named insured and provided $100,000 in underinsured motorist (UIM) coverage to the named insured, spouse of the named insured, and resident relatives of the named insured. The policy had a step-down provision limiting UIM coverage to $15,000 for those who were not in those categories. The policy also had a fraud or misrepresentation provision, which stated coverage would be denied if "any insured person has made false statements or concealed any material fact or circumstance in connection with any claim for which payment is sought under this policy[.]" On September 27, 2011, Ruiz advised Allstate that plaintiff was his resident daughter-in-law and was injured in the accident. On September 30, 2011, plaintiff's representative also advised Allstate that plaintiff was Ruiz's resident daughter-in-law. Without notifying Allstate, plaintiff filed a complaint against the tortfeasors in December 2012, and settled for the $15,000 bodily injury policy limit on January 6, 2014. Without notifying Allstate of the settlement, on January 8, 2014, plaintiff made a claim for UIM benefits under Ruiz's policy and gave Longworth3 notice, stating that unless she received written notice of Allstate's intention to pursue its subrogation rights against 3 Longworth v. Van Houten, 223 N.J. Super. 174 (App. Div. 1988). 3 A-1514-16T3 the tortfeasors within thirty days, she would accept the $15,000 bodily injury policy limit and execute a release. The UIM claim/Longworth notice identified plaintiff as a passenger in Ruiz's vehicle, but did not specify whether she was a resident relative of Ruiz. On February 10, 2014, plaintiff sent Allstate a second Longworth notice, which extended the thirty-day deadline for an additional ten days. Again without notifying Allstate, plaintiff executed a release to the tortfeasors on March 10, 2014, received a settlement check in the amount of $15,000 on March 17, 2014, and dismissed the lawsuit she had filed against the tortfeasors with prejudice on March 21, 2014. On April 1, 2014, Allstate notified plaintiff it was still investigating her UIM claim and sent her a notice of claim form with instructions to complete and return. The form sought verification of her address and relationship to the named insured, among other things. Allstate advised plaintiff it would attempt to resolve the claim once it received the requested information. Plaintiff did not return the notice of claim form. Instead, on April 14, 2014, she filed a verified complaint against Allstate, seeking a declaration that her UIM claim fell within the policy's UIM provision, and compelling Allstate to proceed to arbitration. Plaintiff alleged that at the time of the accident she was a 4 A-1514-16T3 passenger in vehicle insured by Allstate and did not own a motor vehicle or reside with any relative who owned an insured motor vehicle. However, she did not reveal she had finalized the settlement with the tortfeasors, executed a release, received the settlement funds, and dismissed her lawsuit against them with prejudice. Allstate filed an answer, asserting as affirmative defenses that "[p]laintiff is not an insured under the policy under which claim is made and no benefits are owed[,]" "[p]laintiff is excluded from [UIM] . . . coverage under the insurance policy under which claim is made[,]" and "[p]laintiff is subject to a stepdown clause of the insurance policy which limits or excludes coverage in this matter." In a May 12, 2014 letter, GEICO advised plaintiff that Parreno would provide an affidavit confirming there was no other insurance available. Plaintiff submitted a copy of the letter to Allstate, leading Allstate to believe her claim against the tortfeasors was pending. On May 20, 2014, plaintiff provided Parreno's affidavit of no insurance to Allstate, again leading Allstate to believe her claim against the tortfeasors was still pending. On May 21, 2014, plaintiff served answers to interrogatories. She certified that Ruiz was her father-in-law, he resided in Carteret, and she resided in Iselin. She attached her hospital 5 A-1514-16T3 records dated the day of the accident, which showed that Ruiz's son, George Ruiz (George) was her spouse and they resided at the same address in Carteret where Ruiz resided. Based on this information, in a July 25, 2014 letter, Allstate granted Longworth consent to settle with the tortfeasors and advised plaintiff that it made "no coverage references with [the] letter. It only applies to the Longworth subrogation rights." Allstate was unaware at the time that plaintiff was not a resident relative of Ruiz and had already settled the claim against the tortfeasors, received the settlement funds, executed a release, and dismissed the lawsuit against them with prejudice. On October 30, 2014, plaintiff was deposed and confirmed that she resided with Ruiz and George in Carteret at the time of the accident, but revealed for the first time that she was not married to George and Ruiz was not legally her father-in-law. She testified that she referred to Ruiz affectionately as her father- in-law because she and George had been in a long-term romantic relationship and Ruiz considered her a daughter. Based on plaintiff's sworn deposition testimony, on November 18, 2014, Allstate notified her that the policy's step-down provision applied, coverage was limited to $15,000, and she had no claim for UIM benefits under the policy because that coverage 6 A-1514-16T3 was co-equal to the bodily injury coverage available to the tortfeasors. Both parties moved for summary judgment. In denying Allstate's motion and granting plaintiff's motion, the motion judge focused on whether plaintiff was a resident relative of Ruiz at the time of the accident and did not consider whether plaintiff and Ruiz misrepresented that she was his daughter-in-law. The judge noted that plaintiff's interrogatory answers, which Allstate received before granting Longworth consent to settle, indicated she was not a resident relative of Ruiz because she did not reside at his Carteret address. Thus, the judge determined Allstate was not deceived in any way into granting Longworth consent to settle. Allstate responded that plaintiff's sworn deposition testimony confirmed she resided with Ruiz at the time of the accident, but was not his daughter-in-law. The judge did not reconsider his ruling, but instead replied: Because I've got other things to go through. [Defense] [c]ounsel, if you can demonstrate that Allstate did, in fact, rely on some -- they had all of this and that's what they relied on in order to issue that Longworth letter, I'll gladly entertain a motion for reconsideration. All right? Allstate filed a motion for reconsideration. In denying the motion, the judge found there was no misrepresentation of plaintiff's relationship to Ruiz, but rather, their reference to 7 A-1514-16T3 her as his daughter-in-law was "simply an inaccurate way to characterize their legal relationship." The judge focused on the verified complaint and found plaintiff's allegation that she did not reside with any relative who owned an insured motor vehicle should have prompted Allstate to further investigate and clarify the parties' relationship before granting Longworth consent to settle. The judge ruled that Allstate was equitably estopped from asserting the step-down provision based on its failure to investigate. The judge ignored evidence that Allstate was investigating plaintiff's UIM claim before it granted Longworth consent, and had sent her a notice of claim form requesting verification of her address and relationship to the named insured, to which she did not respond. The judge also ignored that plaintiff certified in her interrogatory answers that Ruiz was her father-in-law and attached documents showing George was her spouse and they resided with Ruiz at the time of the accident. Allstate filed a motion to vacate, which the judge denied. The judge again focused on the verified complaint and found Allstate should have determined at the inception of this litigation that there was no UIM coverage because plaintiff was not a resident relative of the named insured. The judge ignored the defenses Allstate asserted in its answer to the complaint, which Allstate filed approximately thirty days after the complaint was filed. 8 A-1514-16T3 The judge also found plaintiff detrimentally relied on Allstate's failure to act sooner based on the time and resources she expended preparing the case. On appeal, Allstate argues that the policy's step-down provision applies because plaintiff was not a resident relative of the named insured and could only claim coverage in the amount of $15,000 as a passenger in the named insured's vehicle. Allstate concludes that plaintiff was not entitled to UIM benefits under the policy because she received $15,000 from the tortfeasors. Allstate also argues it should not be equitably estopped from asserting the step-down provision for not investigating plaintiff's relationship to Ruiz before granting Longworth consent to settle. Allstate posits that Ruiz and plaintiff misled it into believing she was entitled to UIM benefits by misrepresenting that she was Ruiz's daughter-in-law, and plaintiff repeated that misrepresentation in her certified interrogatory answers. Allstate avers that it investigated the matter and acted promptly to invoke the step-down provision when it discovered the misrepresentation. Allstate further argues, in part, that because of the misrepresentation, granting Longworth consent to settle did not equitably estop it from asserting the step-down provision. Lastly, Allstate argues that the material misrepresentation made about 9 A-1514-16T3 plaintiff's familial relationship to Ruiz precludes coverage under the policy's fraud or misrepresentation provision. Allstate maintains that plaintiff repeatedly and falsely asserted she was a resident relative of the named insured, and falsely asserted she detrimentally relied on Allstate's consent to settle when she had actually settled with the tortfeasors months before receiving the consent to settle letter. Plaintiff counters that the judge properly applied equitable estoppel to bar Allstate from denying UIM coverage based on its delay in asserting the step-down provision in response to the UIM claim/Longworth notices and verified complaint, all of which evidenced she sought coverage as a passenger, not a resident relative of Ruiz. She also argues that she detrimentally relied on Allstate's delay in investigating her UIM claim, and there was no material misrepresentation because she always identified herself as a passenger in Ruiz's vehicle. Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346 (2017). Thus, we must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting 10 A-1514-16T3 Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). Summary judgment must be granted "if the pleadings, depositions, 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." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 179 (2016) (quoting R. 4:46-2(c)). "To defeat a motion for summary judgment, the opponent must 'come forward with evidence that creates a genuine issue of material fact.'" Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) (quoting Horizon Blue Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App. Div. 2012)). "[C]onclusory and self-serving assertions by one of the parties are insufficient to overcome the motion." Puder v. Buechel, 183 N.J. 428, 440-41 (2005) (citations omitted). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citation omitted). We review issues of law de novo and accord no deference to the trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013). "[F]or mixed questions of law and fact, [an appellate 11 A-1514-16T3 court] give[s] deference . . . to the supported factual findings of the trial court, but review[s] de novo the lower court's application of any legal rules to such factual findings." State v. Pierre, 223 N.J. 560, 577 (2015) (citations omitted). Applying the above standards, we conclude that Allstate, not plaintiff, was entitled to summary judgment. "UIM coverage . . . is 'personal' to the insured. Coverage is linked to the injured person, not the covered vehicle." Aubrey v. Harleysville Ins. Cos., 140 N.J. 397, 403 (1995) (citation omitted). "UIM coverage provides 'as much coverage as the insured is willing to purchase, for his or her protection[,] subject only to the owner's policy liability limits for personal injury and property damages to others.'" Ibid. (quoting Prudential Property & Casualty Ins. Co. v. Travelers Ins. Co., 264 N.J. Super. 251, 259-60 (App. Div. 1993)). Because it is linked to the injured party, "[o]ur case law recognizes the legitimacy of step-down provisions even though they may result in differential treatment of similar plaintiffs based on the existence of other available insurance." Pinto v. N.J. Mfrs. Ins. Co., 183 N.J. 405, 412 (2005). Accordingly, where a passenger seeks to recover damages under the UIM provision of the car owner's insurance policy in which the passenger was injured, an "insurer[] [is] free to modify the insurance policy language 12 A-1514-16T3 to limit the UIM coverage of [the] passenger[] and others who are named insureds under other insurance policies." Id. at 412-13 (citing Magnifico v. Rutgers Cas. Ins. Co., 153 N.J. 406, 418 (1998)). Disputes involving insurance contracts are resolved by looking to the language of the policy. Riccio v. Prudential Prop. & Cas. Ins. Co., 108 N.J. 493, 499 (1987). As contracts of adhesion, insurance policies are subject to special rules of interpretation. Araya v. Farm Family Cas. Ins. Co., 353 N.J. Super. 203, 206 (App. Div. 2002). Insurance policies should be construed liberally and in favor of the insured's reasonable expectations of coverage. Gibson v. Callaghan, 158 N.J. 662, 671 (1999). Notwithstanding, words of an insurance policy should be given their ordinary meaning. Zacarias v. Allstate Ins. Co., 168 N.J. 590, 595 (2001). "In the absence of any ambiguity, courts 'should not write for the insured a better policy of insurance than the one purchased.'" Gibson, 158 N.J. at 67 (quoting Longobardi v. Chubb Ins. Co., 121 N.J. 530, 537 (1990)). If the expressed language of the policy is clear and unambiguous, the "court is bound to enforce the policy as it is written." Royal Ins. Co. v. Rutgers Cas. Ins. Co., 271 N.J. Super. 409, 416 (App. Div. 1994) (quoting Flynn v. Hartford Fire Ins. Co., 146 N.J. Super. 484, 488 (App. Div. 1977). "These principles have been 13 A-1514-16T3 applied to enforce step-down provisions in insurance policies, provided the provisions are expressed in clear and unambiguous language." Morrison v. Am. Int'l Ins. Co. of Am., 381 N.J. Super. 532, 538 (App. Div. 2005). A policy of insurance may be voided by an insurer for a willful misrepresentation of a material fact or circumstance made before or after the claimed loss. Longobardi, 121 N.J. at 539- 40. As our Supreme Court stated: [W]hen an insurer clearly warns in a "concealment or fraud" clause that it does not provide coverage if the insured makes a material misrepresentation about any material fact or circumstance relating to the insurance, the warning should apply not only to the insured's misrepresentations made when applying for insurance, but also to those made when the insurer is investigating a loss. Such misrepresentations strike at the heart of the insurer's ability to acquire the information necessary to determine its obligations and to protect itself from false claims. Thus, an insured's commitment not to misrepresent material facts extends beyond the inception of the policy to a post-loss investigation. [Id. at 539.] A misrepresentation is material if, when made, "a reasonable insurer would have considered the misrepresented fact relevant to its concerns and important in determining its course of action." Id. at 542. It must relate to a subject relevant to an investigation by the insurer of the claim and its determination 14 A-1514-16T3 of a proper course of action. Palisades Safety & Ins. Ass'n v. Bastien, 344 N.J. Super. 319, 322-23 (App. Div. 2001), aff'd, 175 N.J. 144 (2003). To be material, the false statement must have "naturally and reasonably influence[d] the judgment of the underwriter in making the contract at all, or in estimating the degree or character of the risk, or in fixing the rate of premium." Mass. Mut. Life Ins. Co. v. Manzo, 122 N.J. 104, 115 (1991) (alteration in original) (quoting Kerpchak v. John Hancock Mut. Life Ins. Co., 97 N.J.L. 196, 198 (1922)). "Forfeiture does not depend on proof that an insured harbored an intent to recover proceeds to which he or she was not entitled. An insurer may refuse payment if an insured willfully misrepresented material facts after a loss, even if the insured did not harbor such an intent." Longobardi, 121 N.J. at 540. Plaintiff does not dispute that the step-down provision applies, nor could she. The step-down provision clearly and unambiguously limited coverage to $15,000 for those who are not the named insured, spouse of the named insured, or resident relatives of the named insured. Plaintiff did not fall into any of these categories, and thus, neither she nor Ruiz could have had a reasonable expectation of UIM coverage. Plaintiff was never entitled to UIM benefits under the policy. 15 A-1514-16T3 In addition, the policy's fraud or misrepresentation provision voids coverage. Shortly after the accident, Ruiz and plaintiff misrepresented to Allstate that she was his resident daughter-in-law. Notwithstanding plaintiff's subsequent UIM claim/Longworth notices and verified complaint identifying herself as a passenger in Ruiz's vehicle, when Allstate attempted during its investigation to verify her relationship to Ruiz, she certified in her interrogatory answers that he was her father-in-law and submitted documents showing his son was her spouse. Regardless of how plaintiff characterized her relationship to Ruiz, she knew she was not married to George and that Ruiz was not legally her father-in-law. As such, she knowingly made a material misrepresentation of fact during Allstate's investigation of her UIM claim, on which Allstate reasonably relied in granting Longworth consent to settle. This misrepresentation voided UIM coverage under the policy. Further, we conclude that Allstate was not equitably estopped from asserting the step-down provision and denying UIM coverage. "Estoppel is an equitable doctrine, founded in the fundamental duty of fair dealing imposed by law." Marsden v. Encompass Ins. Co., 374 N.J. Super. 241, 249 (App. Div. 2005) (quoting Casamasino v. City of Jersey City, 158 N.J. 333, 354 (1999)). "The doctrine is designed to prevent injustice by not permitting a party to 16 A-1514-16T3 repudiate a course of action on which another party has relied to his detriment." Ibid. (citation omitted). A party invoking equitable estoppel must show that the alleged conduct was done, or representation was made, intentionally or under such circumstances that it was both natural and probable that it would induce action. Further, the conduct must be relied on, and the relying party must act so as to change his or her position to his or her detriment. [Miller v. Miller, 97 N.J. 154, 163 (1984).] Detrimental reliance is a key factor. See Boritz v. N.J. Mfrs. Ins. Co., 406 N.J. Super. 640, 649 (App. Div. 2009) (estoppel arises when the plaintiff justifiably relies on the UIM carrier's consent to settle); Barrett v. N.J. Mfrs. Ins. Co., 295 N.J. Super. 613, 618-19 (App. Div. 1996) (estopping the UIM carrier from denying UIM coverage because the plaintiff detrimentally relied on its consent to settle as the insurer's expressed or implied acknowledgment that its policy provides coverage). An insurer's "[u]nreasonable delay in disclaiming coverage, or in giving notice of the possibility of such disclaimer . . . can estop an insurer from later repudiating responsibility under the insurance policy." Griggs v. Bertram, 88 N.J. 347, 357 (1982); Barrett, 295 N.J. Super. at 618. A showing of prejudice from the 17 A-1514-16T3 delay "is critical to a finding of estoppel." Shotmeyer v. N.J. Realty Title Ins. Co., 195 N.J. 72, 90 (2008). Allstate made no expressed or implied acknowledgement that the policy provided UIM coverage to plaintiff. When Allstate granted Longworth consent to settle, it explicitly advised plaintiff that it made "no coverage references" and the consent to settle "only applie[d] to Longworth subrogation rights." More importantly, plaintiff did not detrimentally rely on the Longworth consent to settle. She had settled her claim against the tortfeasors before submitting the UIM claim and first Longworth notice to Allstate, and received the settlement funds and executed a release four months before receiving the consent to settle letter. Further, Allstate did not unreasonably delay in giving notice of the possibility of a disclaimer of coverage. Plaintiff did not submit her UIM claim until January 8, 2014. She identified herself as a passenger in Ruiz's vehicle, but did not specify whether she was a resident relative of Ruiz. On April 1, 2014, Allstate advised her it was investigating her claim and would attempt to resolve it once she returned the notice of claim form verifying her address and relationship to the named insured. Plaintiff did not return the form, but instead, filed a complaint on April 14, 2014, alleging she was a passenger in the vehicle insured by 18 A-1514-16T3 Allstate and did not reside with any relative who owned an insured motor vehicle. Approximately one month later, Allstate filed its answer, asserting as affirmative defenses that plaintiff was excluded from UIM coverage under the policy and subject to the step-down provision. Thus, Allstate gave plaintiff notice of the possibility of a disclaimer of UIM coverage in its answer and did not unreasonably delay in so doing. Nor did Allstate unreasonably delay in disclaiming coverage. Again, Allstate attempted to verify plaintiff's address and relationship to Ruiz in April 2014, but plaintiff did not return the notice of claim form. Instead, she served interrogatory answers, certifying Ruiz was her father-in-law. When Allstate discovered this misrepresentation on October 30, 2014, it disclaimed coverage twenty days later. This time period was not unreasonable, and there was no prejudice to plaintiff, as she was never entitled to UIM benefits under the policy. Reversed and remanded for entry of an order dismissing this matter with prejudice. 19 A-1514-16T3

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Docket No.: a1677-16
Decided: 2018-07-10
Caption: STATE OF NEW JERSEY v. QUENTON C. JACKSON
Status: unpublished
Summary:
PER CURIAM Defendant Quenton C. Jackson appeals from a January 3, 2017 order denying his motion for a new trial. Defendant, convicted of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b), was sentenced on November 16, 2016, to a five-year term of imprisonment subject to five years of parole ineligibility. The court granted defendant's request that he be permitted to represent himself on April 19, 2016, after a comprehensive Faretta1 hearing. The judge did, however, direct defendant to apply to the Office of Public Defender for standby counsel. The application was granted, and defendant had standby counsel available throughout the proceedings. Jury selection was completed on July 26, 2016. The following day, defendant failed to appear. Since defendant had been admitted to Monmouth Medical Center,2 the judge adjourned the trial until August 2, 2016. On August 1, 2016, defendant failed to contact the court, as he had been instructed, or to produce the documentation to corroborate his hospitalizations, and a bench warrant issued for 1 Faretta v. California, 422 U.S. 806 (1975). 2 In the transcripts of the proceedings, Monmouth Medical Center is referred to by its former name, the Paul Kimball Hospital. 2 A-1677-16T3 his arrest. He was located on August 2, at Ocean Medical Center,3 just after he had been discharged. Trial resumed, and the jury convicted defendant. The facts leading to the charge can be described briefly. Ocean County Prosecutor's Office Special Operations Group detectives executed a warrant at defendant's residence related to an ongoing drug distribution investigation. Officers recovered a loaded black 9mm semi-automatic pistol from a sock hidden in a recess near defendant's kitchen cabinets. Several practice range shooting targets hung on a wall. The detectives conducted a taped interview after defendant signed a Miranda4 waiver. He admitted that he lived alone in the home, but denied any knowledge regarding the handgun. When asked about the target practice sheets hanging on the wall, defendant responded that he had brought them home from a shooting range where he uses 40mm rounds. At the August 2 proceeding, the judge and defendant engaged in the following exchange: THE COURT: [Defendant], you are present. We have had to have the Sheriff's Department bring you in. It is 11:30. I believe they had you here at around 11. Good morning. We 3 In the transcripts, Ocean Medical Center is referred to as Brick Hospital. 4 Miranda v. Arizona, 384 U.S. 436 (1966). 3 A-1677-16T3 provided you with some water. Anything you would like to say at this point in time? [DEFENDANT]: Yeah, Your Honor. I'm not feeling well. THE COURT: Uh-huh. [DEFENDANT]: The Sheriffs came and got me out of the hospital. That's where I was at. The day that you called me for documents, I couldn't get that to you because I was in the hospital at the time, too. THE COURT: All right. Well, do you have any proof that you were in the hospital or anything? [DEFENDANT]: Yes. THE COURT: Well, you can provide that to the [c]ourt. And I understand from my officers that you were released from the hospital, you were not admitted. [DEFENDANT]: Released today. That was today. THE COURT: Excuse me, I'm talking. That they in fact found you at Brick Hospital after they had been to your house last night; after they had been to your house that you had given us your address this morning. That you were not at either place. That you were not at Paul Kimball Hospital this morning where your parents thought you were. And that they finally tracked you down at Brick Hospital. I'm informed by them that you were not admitted to the hospital and that you have been discharged from the hospital. And I have no proof that you are not capable of continuing with this trial. For the record, you did not in any way comply with my instructions, both to you by 4 A-1677-16T3 leaving a message on your phone as well as speaking with your girlfriend on a number of occasions, to provide the [c]ourt with proof that you in fact were admitted to a hospital and that you in fact had some diagnosis that would not allow you to continue with the trial. You are here this morning and we are ready to proceed. Defendant contended he could not proceed: THE COURT: Do you understand that, [defendant]? [DEFENDANT]: No, Your Honor. THE COURT: You don't. All right. What part don't you understand? [DEFENDANT]: I don't understand none of this. I'm ill right now and I don't know why I'm here. I just got out of the hospital. THE COURT: You're here because you started the trial and you've been discharged from the hospital. [DEFENDANT]: I've been back to the hospital. THE COURT: And you haven't communicated with the [c]ourt in any way, shape or form since last Wednesday. [DEFENDANT]: Well, I was in the hospital last night, I was in the hospital today. THE COURT: You've been discharged from the hospital, sir. [DEFENDANT]: I was in the hospital last night. 5 A-1677-16T3 THE COURT: You've been discharged from the hospital this morning, sir. [DEFENDANT]: And I was in the hospital in Bricktown today. THE COURT: You've been discharged this morning. [DEFENDANT]: Where I got picked up. That's where I got picked up. THE COURT: So you're not going to stipulate that that document shows that you had a prior conviction in 2003 which can be demonstrated to the jury to indicate that you are a prior felon under the statute? Am I correct in assuming that? [DEFENDANT]: I can't tell you anything right now, sir. I'm not in my right state of mind, so. THE COURT: All right. For the record, the [c]ourt is looking at the defendant and he appears to be sitting sort of properly in his chair. He is dressed as he was dressed the first day in what appears to be jeans and sneakers and a shirt at this time. During the Miranda hearing, defendant again claimed he was unable to proceed: THE COURT: [Defendant], any objection to the [p]rosecutor playing a redacted version? A version that doesn't have many things that are in this past statement, I assume. . . . You shook your head no, does that mean no, [defendant]? [DEFENDANT]: I can't even -- I can't concentrate. I can't say. I plead the Fifth, Your Honor. 6 A-1677-16T3 THE COURT: Okay. You can plead the Fifth. The [c]ourt, for the record, indicates that [defendant], when the portion came up about the gun I was observing [defendant], his eyes became completely wide open, he became interested in what was being said on the video. When asked to comment about the proposed redactions, defendant and the judge had the following exchange: THE COURT: [Defendant], any comment on any of that? [DEFENDANT]: Yes, Your Honor. I can't represent myself right now at this point. THE COURT: And why is that, sir? [DEFENDANT]: Because I can't think clearly. My blood pressure is probably through the roof right now and anxiety, so. THE COURT: Well, I appreciate that. I'm observing you all this time. You do not appear to be in any distress whatsoever. [DEFENDANT]: That's your opinion, Your Honor. THE COURT: Yes, it is. [DEFENDANT]: That's your opinion. THE COURT: And I'm just placing on the record that I'm observing you and that is absolutely my opinion. When asked if he wanted to continue to represent himself, or was willing to allow standby counsel to "step in," defendant responded that he would prefer to retain his own attorney. The 7 A-1677-16T3 court observed that defendant's similar request had been denied the prior week, and that the issue had arisen back in January. When the January request was made, defendant had contacted an attorney, but had not actually retained her. Because the lawyer had not yet been retained, the judge refused her request for an adjournment since the jury was "on its way over to begin [the] trial." Defendant reiterated he could not proceed because of his health, and the judge denied his request for postponement. Defendant insisted that he could not stand when he addressed the judge because he might faint "[f]rom the pressure, the high blood pressure, the anxiety." The judge observed that defendant was physically able to fully participate and had repeatedly expressed his concerns on the record in a manner that corroborated the judge's perspective that he was fit to proceed. The judge added: "I am again placing on the record that I continue to observe you and I feel [you are] competent to continue at this time." The medical and hospital documentation defendant provided in support of his application for a new trial stated that he suffered from anxiety, depression, panic attacks, and high blood pressure. Although defendant had gone for treatment to two different hospitals, both discharged him after an overnight stay. The medical documents included summaries finding defendant to be 8 A-1677-16T3 generally in normal health, not in need of further hospitalizations. In ruling on the motion for a new trial after review of the documents, the judge held defendant was not prejudiced by being compelled to try the matter despite his alleged health problems. The judge said: [T]he totality of the circumstances and the events that occurred, including what transpired before the trial, what transpired with the [c]ourt's impression that there was a delay tactic going on by the defendant in firing a very competent attorney who had obtained, in the [c]ourt's opinion, a plea bargain that was beneficial, noting all of the evidence that was presented against [defendant], and he denied or decided to not take the deal. That he then went into a delay mode after that and did everything he could after that to try to delay this trial. So I find that, while the motion is appropriate, it is out of time. But I will still, for the record, indicate that I am denying it both for that reason as well as for the reasons given as far as that I do not find that there was any prejudice to [defendant]. That I do not find that there has been any medical evidence submitted that would show that [defendant] in fact was not able to participate from a competency standpoint, from an ability to understand what was going on, from an ability to represent himself in this case. To understand that he had the right and the ability to question the standby attorney that the [c]ourt had appointed, to use the services of that attorney if he had any questions. 9 A-1677-16T3 And I also find that, clearly, based on my observations and personal observations of the defendant during the trial, that he was more than capable and appropriate in preparing his defense and presenting his defense and in executing both his opening and closing statements, his objections to evidence and all things that an attorney would have done on his behalf. Could he have been represented better with respect to certain things if he had an attorney? I think that's probably true. But the [c]ourt does not feel that he has the right now to come back and say that certain things were not done properly because he was not familiar with court rules and things like that and that he was too sick to continue. I think his own reactions, his own demeanor proved that he was capable of proceeding to trial at that time. So I deny all of the requests that were made on behalf of the defendant at this time. On appeal, defendant raises the following points: POINT I THE TRIAL COURT ERRED IN DENYING APPELLANT'S APPLICATION TO POSTPONE THE TRIAL BECAUSE HE HAD EXPERIENCED MEDICAL ISSUES THAT DEEMED HIM UNFIT TO PROCEED AS AN INEXPERIENCED PRO SE LITIGANT THUS DENYING APPELLANT A FAIR TRIAL IN VIOLATION OF HIS DUE PROCESS RIGHTS. POINT II THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR A NEW TRIAL PURSUANT TO R. 3:20-1 BECAUSE HE WAS REQUIRED TO PROCEED AS AN INEXPERIENCED PRO SE LITIGANT SUFFERING WITH MEDICAL ISSUES THAT PREJUDICED APPELLANT AND DEPRIVED HIM A FAIR TRIAL THUS CAUSING A MANIFEST DENIAL OF JUSTICE UNDER THE LAW. 10 A-1677-16T3 I. Whether to grant an adjournment of trial due to a defendant's health difficulties is a matter within the discretion of the trial court. State v. McLaughlin, 310 N.J. Super. 242, 259 (App. Div. 1989); State v. Kaiser, 74 N.J. Super. 257, 271 (App. Div. 1962). The trial court's decision "will not be deemed reversible error absent a showing of an abuse of discretion which caused defendant a 'manifest wrong or injury.'" McLaughlin, 310 N.J. Super at 259 (quoting State v. Furguson, 198 N.J. Super. 395, 402 (App. Div. 1985)). According to the Kaiser court, Among those factors deserving consideration by the court in the exercise of its discretion are medical reports, personal observation of the accused, the effect of a continuance upon the State's ability to produce evidence at a subsequent date, and whether or not the accused will be better able to stand trial at a later time. [74 N.J. Super. at 271.] We also consider "the clarity of the accused's testimony at trial and the conduct of the trial court in granting defendant periods of rest whenever . . . requested." Ibid. (citing State v. Pierce, 27 P.2d 1087, 1088 (Wash. 1933)). Furthermore, a trial court's decision on a motion for new trial "shall not be reversed unless it clearly appears that there 11 A-1677-16T3 was a miscarriage of justice under the law." R. 2:10-1. We defer to the trial court with respect to "intangibles" not transmitted by the record, including credibility and demeanor, but otherwise make our own independent determination of whether a miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 360 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969); Kimmel v. Dayrit, 301 N.J. Super. 334, 355 (App. Div. 1997) (quoting Caputa v. Antiles, 296 N.J. Super. 123, 138-39 (App. Div. 1996)). II. Although framed as two separate points of error, defendant makes essentially the same argument as to both: that defendant's health mandated an adjournment. To the contrary, our review of the medical records supports the judge's conclusion that defendant's health did not warrant a postponement. No due process violation occurred because his application was denied. Defendant's health issues were not disabling, and although he attempted to be admitted into a second facility when discharged from the first, he was quickly discharged from that hospital as well. The trial judge repeatedly observed that defendant was responding throughout the trial as capably as could be expected from a self-represented litigant. 12 A-1677-16T3 When we review the Kaiser factors, that analysis supports the trial judge's decision denying the motion for a new trial. The medical records documented that defendant's medical problems were not so serious as to impact his self-representation. The judge repeatedly observed that defendant's demeanor, attentiveness, and questions to witnesses established beyond question his ability to proceed. Although the State would suffer minimal prejudice in light of the nature of the charge, defendant's diagnosed conditions are chronic. An adjournment would not have made a significant change to defendant's anxiety, depression, and elevated blood pressure. Independently weighing the Kaiser factors, we conclude the judge did not err in denying defendant's motion for a postponement upon his return to court after the execution of the arrest warrant. III. Defendant's motion for a new trial was made out of time. However, the judge nonetheless ruled on the merits. As we have said, the judge found that defendant's conduct during the trial was entirely appropriate. He denied the motion as untimely and on the merits, and both decisions are supported by the record and relevant precedent. The denial of the motion for a new trial was not a miscarriage of justice. Affirmed. 13 A-1677-16T3

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Docket No.: a2176-15
Decided: 2018-07-10
Caption: TOWNSHIP OF JACKSON v. JR CUSTOM LANSCAPING, INC
Status: unpublished
Summary:
PER CURIAM In these two consolidated land use matters, the Law Division remanded to the Jackson Township Zoning Board of Adjustment (Board) to determine whether the business operated by JR Custom Landscaping, Inc. (JR) on properties owned by JR, James Picon, Dawn Picon, and JRDL Real Estate, LLC (collectively JR), violated two prior Board resolutions granting prior land use approvals and ordinances. The Board then determined that there were violations, which the Law Division later agreed with and enjoined certain JR business activities. Because the Board followed the remand directive to review the Zoning Board Officer's determination that there were no violations on the properties, and to issue factual findings based upon its interpretation of the resolutions, we conclude the Law Division did not abuse its discretion, and affirm. 2 A-2176-15T2 JR, which is owned by the Picons, is a wholesale nursery and landscaping business operating out of two properties located in Jackson Township (the Township): 34 Bennetts Mills Road (Bennetts Mills), owned by JR; and 141 East Veterans Highway (East Veterans), owned by the Picons through an entity, JRDL Real Estate, LLC. As far back as 1999, JR has made several applications to the Board regarding the scope of its operations. In 2011, the Ocean County Department of Solid Waste denied its application to accept leaves and other compost material for recycling, finding the use was not permitted at either property. Believing JR was recycling on the properties despite the denial, the Board filed a verified complaint against JR for injunctive relief to cease the activity. The action led to the parties' June 10, 2011 consent order, which provided: a. JR shall immediately cease the receipt of materials used to process materials such as mulch; b. JR shall immediately cease recycling/processing of materials; c. JR shall not maintain or stockpile any mulch as of June 17, 2011; d. Operations at the Bennetts Mills site shall not commence prior to 8:00 a.m.; e. The East Veterans site shall only maintain pickup trucks, 2 bobcats, and other large machinery; 3 A-2176-15T2 f. The East Veterans site shall only engage in farm[-]related activities; g. The East Veterans site shall not permit recreational vehicle use other than what is permitted by the Township of Jackson Municipal Code; h. JR is to immediately remove all finished topsoil above a specific height as of June 17, 2011; i. Either party can apply for a modification of this [o]rder if there is a lack of compliance or change in circumstances; j. The Jackson Township Police Department may enforce the terms of the [o]rder, including noise complaints; k. The order is to remain in effect until further order of the court or resolution of the Zoning Board of the Township of Jackson. This was followed by JR's application to the Board seeking, among other requests, an interpretation of the approvals granted in 2009, to allow it to recycle organic waste, trees, leaves and tree stumps into mulch. Although the Board found that JR had failed to complete compliance requirements for an approved farmer's market, it determined that JR could continue to operate its landscaping business but was required to obtain Board approval to conduct recycling activities as a condition precedent to any State regulatory requirements. 4 A-2176-15T2 Later, in 2014, the Township again believed – based on noise complaints from residential neighbors – that JR had resumed recycling activities on both properties by producing or manufacturing mulch and related organic materials, and sought injunctive relief against JR. Finding the record unclear, the Law Division remanded to the Board to "determine [its] intent and address the specific uses it permitted upon the property in light of the variances and previous interpretations." The Board was also required to "define the parameters of what encompassed a [l]andscaping [b]usiness at the property given the fact that it could not rely upon the Municipal Code for a definition." The trial court retained jurisdiction. On remand, after nine days of testimony from Township officials and professional staff, representatives of JR and the public, the Board ultimately adopted two separate resolutions, summarized as follows: Resolution 2015-22 34 Bennetts Mills Road The landscaping business permitted to operate may sell farmland related products—i.e.: vegetative products including flowers, plants, trees and shrubs grown elsewhere; The Board found that JR had expanded the existing non-conforming use by offering for sale, products the Board never intended to be offered at the site and at a scale never envisioned by the Board. Overall, JR expanded 5 A-2176-15T2 the scale and scope of the operation at the site beyond that which was intended; Bulk storage shall be limited to specific locations delineated upon the 2009 Change of Use Plan; storage of material may not exceed the height permitted by the current Township ordinance – 10 feet; JR is not permitted to produce or manufacture any materials on site for sale in accord with the February 20, 2015 Board professional memorandum; Previous approvals do not permit JR to engage in recycling, producing or manufacturing of vegetative or organic product including but not limited to the compost, mulch, topsoil in accord to the Board professional memorandum; JR expanded the business to permit the rental of equipment from the property, which was way beyond the scope of the business granted by variance; JR may neither store nor sell loose rock salt from the property; Without a variance by the Board, JR cannot operate snow plowing operations from the site or store equipment for such on the premises; Until lot 63 complies with Resolutions 2009-17 and 2009-22 for expansion of business operations, JR shall cease using lot 63 and the access driveway for commercial purposes; JR is not permitted to store trash, debris or solid waste on his property, as no such areas are designated on the Change of Use Plan from 2009; 6 A-2176-15T2 JR is not permitted to receive or store trash, debris or solid waste from any outside source including but not limited to leaves, brush, stumps, trees, trimmings, manure, grass clippings, millings used to process, produce or manufacture materials such as mulch, topsoil or compost; The provision of fuel storage on the site is prohibited as it is not addressed by the 2009 Change of Use plan; JR is not permitted to sell or refill propane tanks from the property; JR is not permitted to stockpile topsoil, organic material, mulch, compost, or stone in piled greater than 10 feet as depicted in the 2009 change of Use Plan; A buffer along the east property line consisting of white pine trees 6-8 feet high must be planted to comply with Resolution 1999-10; No sale of equipment of motor vehicles on the property; Submission of a storm water management plan must be submitted; Equipment requiring the use of back up beepers may not be used Saturday after 2 p.m. or on Sunday. Resolution 2015-23 141 East Veterans Highway Sifting, screening, manufacture and production of material, utilizing material that was not generated or to be used on the site had occurred. JR is storing topsoil, mulch and other organic material, that originated offsite, in piles of 75 feet wide 7 A-2176-15T2 by 100-150 feet long and 15 feet in height without submitting a plan or providing testimony that the material was to be used in furtherance of farm activities on site. JR is storing tree stumps, roots, branches and other organic material that originated offsite as part of a constructed berm as well as solid waste, without the submittal of a plan or providing evidence that the storage of material was to be used in furtherance of farm activities; JR has not cultivated corn or other crops. JR has permitted an unrelated business to dump grass clipping on the site without approval. There is no breeding activity on the site; however JR has intermittently boarded horses and other animals on site; JR violated the consent order filed June 10, 2011 by maintaining large trucks on the property and engaging in non-farm related activities including sifting, production and manufacture of organic materials and topsoil for use offsite. Two days later, the Board's Zoning Officer served a letter on JR stating, "all conditions noted in Resolution 2015-22 shall be in effect immediately and acted upon accordingly." In response, JR filed a verified complaint in lieu of prerogative writs and order to show cause seeking a determination that the Board's findings in the adopted resolutions were arbitrary, capricious and unreasonable, and that any action to enforce the resolutions should be enjoined. The Township in turn filed an order to show cause seeking preliminary and permanent injunction and to restrain JR 8 A-2176-15T2 from conducting all activities in violation of the resolutions pending a full adjudication of the matter. The lawsuits were consolidated, with the status quo on the use of the properties maintained pending the Law Division's decision. Ultimately, Judge Mark A. Troncone granted injunctive relief to the Township ordering JR to "cease any activities on the sites that are not in conformance with the provisions of the Resolutions." In deferring to the Board's factual finding, the judge stated in his written decision that "there is ample evidence in the record established below as to the numerous violations of the 2011 [c]onsent [o]rder and of the violations of prior variance approvals concerning both JR sites as outlined in Resolutions 2015-22 and 2015-23." The judge did carve out two exceptions, finding that if storm water management facilities were installed, the Board must approve the plan; and that there could be no limitation on the use of vehicles with "back up beepers" during JR's hours of operation. JR appeals, arguing: I. THE FILING OF THE VERIFIED COMPLAINT BY JACKSON TOWNSHIP DIVESTED THE ZONING BOARD OF JURISDICTION. II. THE CHANCERY DIVISION JUDGE ERRED BY ALLOWING THE TOWNSHIP OF JACKSON ZONING BOARD OF ADJUSTMENTS [FACT FINDING] TO BE UTILIZED IN DECIDING A CHANCERY DIVISION ACTION SEEKING INJUNCTIVE RELIEF. 9 A-2176-15T2 A. Snow Plowing – Resolution 2015-22 1. JR Custom Landscaping was denied due process when the court permitted the board to prohibit snow plowing where material facts existed concerning the definition of landscaping. 2. Snow plowing is a vested right. 3. The board does not have the authority to control snow plowing operations which do not occur on JR custom landscaping's property. B. 141 East Veterans Highway – Resolution 2015-23. 1. Lack of Jurisdiction. 2. 2011 verified complaint and 2011 order. III. RESOLUTIONS 2015-22 AND 2015-23 ARE ARBITRARY, CAPRICIOUS AND UNREASONABLE. A. Standard of Review. B. Variances are vested rights which run with the land. 1. Resolution 2015-22 is not supported by the record. 2. Resolution 2015-23 is not supported by the record. IV. THE BOARD EXCEEDED THE COURT'S ORDER OF AUGUST 22, 2014 AND THE COURT FAILED TO MAKE FINDINGS OF FACT. A. The court is required to make findings of fact. 10 A-2176-15T2 B. The court exceeded its authority when it rescinded previously granted rights 1. Storing landscaping material for retail or wholesale purposes. 2. Resolution compliance. We begin with a review of the well-established legal principles that guide our analysis. Under the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, "municipalities are authorized to impose conditions on the use of property through zoning." Price v. Himeji, LLC, 214 N.J. 263, 284 (2013). A board of adjustment has the authority, however, to grant a variance and permit a nonconforming use of zoned property pursuant to N.J.S.A. 40:55D-70(d)(2). On appellate review of a trial court's determination of the validity of an action taken by a land use board, we are bound by the same standard as the trial court. N.Y. SMSA, L.P. v. Bd. of Adjustment of Tp. of Weehawken, 370 N.J. Super. 319, 331 (App. Div. 2004) (citation omitted). Municipal zoning ordinances enjoy a presumption of validity. Rumson Estates, Inc. v. Mayor & Council of Fair Haven, 177 N.J. 338, 350 (2003) (citation omitted). This presumption may be overcome by proof that the ordinance is arbitrary, unreasonable or capricious, or plainly contrary to fundamental "principles of zoning or the [zoning] statute." Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 289-90 11 A-2176-15T2 (2001) (alteration in original) (quoting Bow & Arrow Manor, Inc. v. W. Orange, 63 N.J. 335, 343 (1973). In addition, we "defer to a municipal board's factual findings as long as they have an adequate basis in the record." Advance at Branchburg II, LLC v. Branchburg Tp. Bd. of Adjustment, 433 N.J. Super. 247, 252 (App. Div. 2013). The challenging party has the burden to show that the zoning board's decision was "arbitrary, capricious, or unreasonable." Price, 214 N.J. at 284 (quoting Kramer v. Bd. of Adjustment, 45 N.J. 268, 296 (1965)). Mindful of these principles, we address JR's arguments in the order presented. JR first argues the Board exceeded its authority on remand by adopting Resolutions 2015-22 and 2015-23, which demonstrates that the Board reconsidered and rescinded previously granted variances, and imposed new conditions on its operations. As an example, JR cites the exceptions the judge noted for Resolution 2015-22 provisions by ordering that only if a storm water management plan is installed on the Bennetts Mills site should Board approval be sought, and that there can be no restriction of the hours of operation of vehicles with back up beepers. We disagree. Given the injunctive relief sought by the Township, the court remanded the matter to the Board to interpret the previously granted resolutions and consent order to determine if JR violated 12 A-2176-15T2 any provisions thereof. Consistent with a zoning board's "peculiar knowledge of local conditions, [it] must be allowed wide latitude in their delegated discretion," Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 597 (2005), the Board thoroughly reviewed testimony and detailed its findings of fact in two resolutions. JR cites no case law to support its position, and thus fails to persuade us, as it was unable to do with the trial court – outside of the two noted exceptions – that the Board exceeded its authority on remand. JR next contends that considering its plowing activity occurs off-site, it had a vested right to use the Bennetts Mills site for storing its snow plowing equipment. Thus, it was denied due process where Resolution 2015-22 declared that snow plowing does not fall within the definition of landscaping. We are not persuaded. The purpose behind the court's remand was to enable the Board to clarify what activities engaged in by JR were consistent with the variances that allowed JR to conduct its landscaping business on the respective sites. Through the extensive hearing process, the Board did exactly that. We see no reason to disturb the Judge Troncone's finding that the evidence presented failed to establish a variance that authorized JR to use the Bennetts Mills site as a base for a snow plowing operation. 13 A-2176-15T2 Turning its focus to the East Veterans site, JR claims it was denied due process because the consent order, which specifically stated that it would remain in effect until further order of the court or resolution of the Board, expired as of the passage of Resolution 2011-45.1 We disagree for the same reasons we reject JR's argument regarding the prohibition of storing snow plowing equipment at Bennetts Mills; there was no denial of due process because the Board acted in conformance with the judge's remand order. JR next argues that both resolutions are arbitrary, capricious and unreasonable because "the Township failed to present substantial, credible evidence of the alleged violations on the [p]roperties and the Zoning Board's determinations were not supported by the evidence and are ultra vires." As to Resolution 2015-22, JR contends it inappropriately restricted its landscaping business and farmer's market on the property; improperly concluded that the screening of topsoil was impermissible based upon Resolution 2011-45; wrongly prohibited a second business from 1 Resolution 2011-45 provided that "the applicant's failure to complete resolution compliance for the farmer's market does not preclude the applicant from continuing to operate its landscaping business." It also allowed that in order to conduct recycling activities on the Bennetts Mills property, it had to obtain the Board's approval as a condition precedent to any required New Jersey Department of Environmental Protection approvals. 14 A-2176-15T2 operation on and from the property; incorrectly prohibited JR from leasing equipment, storing fuel onsite; and improperly required JR to create a landscape buffer. As for Resolution 2015-23, JR contends the record does not support its prohibition of sifting and screening materials, storage of topsoil, mulch, rotting debris, berm, large trucks and sifters, and the dumping of grass clippings. From our review of the record and the resulting resolutions, the Board considered the testimony presented and credibly applied it to clarify the activities that are consistent with the approvals given to JR to operate a landscaping business; in turn, determining that did not include recycling activities leading to the production or manufacture of mulch and related organic materials. Accordingly, we cannot conclude the Board acted arbitrary, capricious and unreasonable, and we find insufficient merit in these arguments to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(E). We only add the following comments. We reject JR's equitable estoppel argument that its on-site screening of topsoil for the last fifteen years is consistent with the landscaping business because the Board never prohibited it. The doctrine of equitable estoppel prevents a party, who failed to exercise a duty to object, from stopping another party's conduct who in good faith relied upon that silence or inaction. See 15 A-2176-15T2 Middletown Twp. Policemen's Benevolent Ass'n Local No. 124 v. Twp. of Middletown, 162 N.J. 361, 367 (2000). Because we see no clear distinction between soil-screening and the processing of "organic related material," which was specifically prohibited by the Board in 2011, the Township should not be equitably estopped from enjoining JR's soil-screening activity. Consequently, equitable estoppel does not apply to allow JR to continue the screening of topsoil. Finally, for the reasons stated above, we reject JR's contention that the Board failed to make findings of fact and exceeded the court's remand directive. Affirmed. 16 A-2176-15T2

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Docket No.: a2275-16
Decided: 2018-07-10
Caption: TANISHA C. LANE v. WHOLE FOOD
Status: unpublished
Summary:
PER CURIAM Defendant Whole Foods Market Group, Inc.1 (Whole Foods) appeals from a Special Civil Part judgment awarding damages to plaintiff Tanisha C. Lane, its employee, for vandalism to her car when it was parked in a shopping center parking lot while she was at work. We reverse and remand. I. The following facts are derived from the trial record. Plaintiff is employed by Whole Foods at its store in Clark. The store is located in Clark Commons, a 240,000-square-foot retail shopping center owned by Clark Commons, LLC. Whole Foods is one of approximately twenty-eight tenants at the shopping center. The lease between Whole Foods and Clark Commons, LLC unequivocally provides that the landlord is responsible for maintenance and security of the shopping center parking lot: (a) Definition of Common Area. The "Common Area" shall include (1) the vehicle parking and other areas of the [shopping center] generally available for the use of all tenants and occupants in the [shopping center], including, without limitation, any common roadways, service areas, driveways, areas of ingress and egress, sidewalks and other pedestrian ways . . . . (b) Landlord's Obligations. Landlord, at its sole cost and expense . . . shall be responsible for installing, maintaining, repairing and keeping the Common Area in a 1 Plaintiff incorrectly identified defendant as "Whole Food" in her complaint. 2 A-2275-16T4 neat, clean, safe, good, and orderly condition and repair according to the highest reasonable standard for first-class shopping centers in the metropolitan area where the [shopping center is] located . . . . [T]o the extent that Landlord reasonably determines appropriate, Landlord shall provide security guards for the Common Area. The property owner contracted with defendant Silbert Realty and Management Company, Inc. (Silbert) to fulfill its obligation to maintain and secure the common areas of the shopping center, including the parking lot. There are no security personnel assigned to the parking lot. Municipal police drive through the parking lot periodically. It is undisputed that Whole Foods instructs its employees to park in an area of the shopping center parking lot distant from the entrance to the store. Written materials distributed to Whole Foods employees include a map of the shopping center parking lot with a shaded area considered appropriate for employee parking. Parking outside of the designated area by a Whole Foods employee may result in discipline, up to and including termination. The parking area to which Whole Foods directs its employees is in the vicinity of a retail bank branch equipped with security cameras. The area is not delineated with signs, painted lines, or other markings. Nor is use of the area limited to Whole Foods employees. Instead, the area is part of the common space at the 3 A-2275-16T4 shopping center, open to any user, including the customers and employees of all of the shopping center's tenants. A representative of Whole Foods testified that Silbert asked Whole Foods, and the other shopping center tenants, to instruct employees to park away from the front of all stores at the shopping center to permit easy access for customers. When plaintiff arrived for work on November 8, 2016, she parked in the area of the parking lot designated as employee parking by Whole Foods. At the conclusion of her shift, plaintiff discovered that the side view mirror of her vehicle had been removed. Plaintiff reported the damage to a supervisor, who suggested she contact Silbert.2 On December 19, 2016, plaintiff filed a complaint in the Special Civil Part against Whole Foods and Silbert seeking $1001.50 in damages incurred to repair her car. 2 Plaintiff testified that the November 8, 2016 incident was the third time her car was damaged in the Clark Commons parking lot. In February 2016, the bumper of plaintiff's car was removed. In May 2016, the paint on the side of plaintiff's car was scratched. Plaintiff conceded that she did not notice the paint damage until she arrived home from work and that it could have occurred elsewhere. Plaintiff reported these incidents to a representative of Whole Foods. After the November 8, 2016 incident, Whole Foods allowed plaintiff to park in a space near the entrance to the store. The record contains no evidence of any other acts of vandalism in the Clark Commons parking lot. 4 A-2275-16T4 On January 10, 2017, at the conclusion of the trial, the court issued a bench opinion concluding that both Whole Foods and Silbert had a duty to protect plaintiff's vehicle while it was parked in the shopping center parking lot. The court determined that Silbert's duty was based on its contractual obligation to secure the common areas of the shopping center. The trial court held that Whole Foods created a duty to plaintiff when it instructed her to park in a particular area of the parking lot. The judge also concluded that both Whole Foods and Silbert were aware of prior incidents of vandalism to plaintiff's vehicle and breached their duty to plaintiff when they failed to take appropriate steps to protect her property. Finally, the court found that defendants' failure to act was the proximate cause of the damage to plaintiff's vehicle. The court concluded that Silbert was seventy percent liable and Whole Foods thirty percent liable for the damage to plaintiff's vehicle. Plaintiff was awarded damages against Silbert in the amount of $701.05, along with $38.50 in costs, and against Whole Foods in the amount of $300.45, along with $16.20 in costs. This appeal followed. II. In order to prove negligence, a plaintiff must establish: (1) a duty of care to plaintiff; (2) a breach of that duty; (3) 5 A-2275-16T4 proximate cause; and (4) actual damages. See Polzo v. Cty. of Essex, 196 N.J. 569, 584 (2008); Townsend v. Pierre, 221 N.J. 36, 51 (2015). Whether a person owes a duty of reasonable care toward another turns on whether the imposition of such a duty satisfies an abiding sense of basic fairness under all of the circumstances in light of considerations of public policy. That inquiry involves identifying, weighing, and balancing several factors – the relationship of the parties, the nature of the attendant risk, the opportunity and ability to exercise care, and the public interest in the proposed solution. [Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993) (citing Goldberg v. Housing Auth., 38 N.J. 578, 583 (1962)).] Whether a party owes a legal duty to another is a question of law. Carvalho v. Toll Bros. and Developers, 143 N.J. 565, 572 (1996). We review the trial court's interpretation of the law de novo. State v. Parker, 212 N.J. 269, 278 (2012). We have previously examined the question of whether a commercial tenant in a multi-tenant shopping center owes a duty to business invitees in the common areas of the shopping center in two recent decisions. Those precedents guide the resolution of this appeal. In Kandrac v. Marrazzo's Market at Robbinsville, 429 N.J. Super. 79 (App. Div. 2012), the defendant was a commercial tenant in a thirty-six-store shopping center. The lease provided that 6 A-2275-16T4 the property owner was responsible for maintenance of the common areas of the shopping center, including the parking lot. Id. at 82. The plaintiff, a patron of the tenant, tripped on a raised area of the parking lot surface as she was walking from the tenant's store to her vehicle. She was injured in the fall, which happened about two feet outside of a crosswalk in a roadway that separates the tenant's store from the parking lot. Ibid. The plaintiff filed a complaint against both the tenant and the property owner, seeking damages for her injuries. The trial court granted summary judgment in favor of the tenant. The court concluded that a commercial tenant in a multi- tenant facility owes no duty of care to its invitee for an injury that occurred in the common area of the shopping center. Id. at 83. We affirmed the trial court's decision. After a review of the legal precedents expanding commercial property owners' duty of care to business invitees, we held that as a general rule, when a commercial tenant in a multi-tenant shopping center has no control or contractual obligation to maintain a parking lot shared with other tenants, the common law does not impose a duty upon the tenant to do so. [Id. at 90-91.] We recognized, however, that the "determination whether a duty exists remains a fact-sensitive issue," id. at 90, and 7 A-2275-16T4 identified the factors to be considered when determining whether a duty of care should be imposed on a commercial tenant: (1) a recognition of the "considerable interest in and rights" the commercial landowner had regarding the property in question; (2) whether imposing a duty associated with those rights would be arbitrary; (3) whether a failure to impose the duty would leave innocent victims without recourse; (4) a recognition that the imposition of liability would give an incentive to landowners to care for the property in question; (5) whether the proximity of the place where the injury occurred to the business establishment would render a failure to impose a duty arbitrary; and (6) a recognition that the commercial landowner would treat the costs associated with additional insurance premiums and maintenance as one of the necessary costs of doing business. [Id. at 87-88 (quoting Stewart v. 104 Wallace St., Inc., 87 N.J. 146 (1981)).] Applying those factors to the facts in Kandrac, we noted that the plaintiff fell in an area distant from the entrance to the tenant's store that was not in the tenant's control. Id. at 88. In addition, we held that the assignment of responsibilities in the lease limited the tenant's ability to address conditions in the parking lot not abutting the entrance to the tenant's store. Id. at 88-89. We also found that because it was clear that the property owner was liable for any negligence in the parking lot, the plaintiff would not be left without recourse if a duty of care 8 A-2275-16T4 was not imposed on the tenant. Id. at 90. Finally, we noted that the assignment of "a duty on individual tenants in a multi-tenant commercial property might well be counter-productive," as it might "encourage shotgun litigation . . . where the customer sued every store at which he had browsed or purchased an item prior to his fall." Ibid. (quotations omitted). We concluded that, although a contractual obligation of the property owner to maintain the common areas of the parking lot "does not relieve [the tenant] of all duties to its customers regarding ingress and egress," id. at 88, the facts did not support imposing a duty of care on the tenant in that case. Two months later, in Nielsen v. Wal-Mart Store #2171, 429 N.J. Super. 251 (App. Div. 2013), we examined the question of whether the owner of a commercial condominium retail store unit at a multi-unit shopping center had a duty of care to a business invitee injured on the threshold of the owner's store. In that case, the unit owner's property included only the structure housing the retail store, and a small outside area designed for the sale of garden materials. Id. at 254, n.1. The developer of the shopping center, a condominium association, was contractually obligated to repair and maintain the common areas of the shopping center. Id. at 254. 9 A-2275-16T4 The plaintiff, an independent contractor hired by the condominium unit owner to exterminate pests, was directed by the unit owner to access the various entrances to the store from the exterior of the unit. Ibid. While setting rodent traps in an area outside of, but immediately adjacent to, the unit owner's property, the plaintiff was injured when he slipped on loose sand and gravel. Id. at 254, n.2. It was undisputed that the fall happened on the common area of the condominium association. Id. at 254-55. The plaintiff sued the condominium unit owner for damages. More than two years later, he amended his complaint to include claims against the condominium association. The trial court granted summary judgment in favor of the association on statute of limitations grounds. Id. at 255. A jury found the unit owner eighty percent liable for plaintiff's injuries. Ibid. The unit owner appealed, arguing, among other things, that it did not have a duty to plaintiff to maintain the common areas of the condominium association. Applying the Hopkins factors noted above, we concluded that the unit owner owed its business invitee a duty to maintain the common area immediate abutting its property, to which it directed the invitee to perform his work. We departed from the rationale of Kandrac and gave the contractual allocation of responsibilities 10 A-2275-16T4 between the unit owner and the condominium association "little weight," so as not to encourage the unit owner to "blithely turn a blind eye to any defects or hazards in common areas . . . foreseeably used by [its] invitees and passersby." Nielsen, 429 N.J. Super. at 260. In addition, we noted that imposition of a duty on the unit owner would not interfere with its right to seek indemnification from the condominium association under the contract. Id. at 261. We also held that in the absence of a duty on the part of the unit owner, an injured party would be left to ascertain the applicable contractual terms, including the identity of the condominium association, rather than simply seeking relief against the unit owner, whose identity, presumably, would be more readily apparent. Ibid. We noted that the unit owner directed the plaintiff to use the common areas to access the entrances to the unit, and had "every opportunity to recognize and exercise care with regard" to the area immediately adjacent to its premises. Id. at 262. We concluded that the unit owner "is fairly chargeable with a duty to be familiar with the perimeter outside its unit and other common areas that its invitees and passersby might foreseeably use." Id. at 263. After considering these precedents, we are convinced that the trial court erred in concluding that Whole Foods had a duty to 11 A-2275-16T4 protect plaintiff's vehicle from vandalism. We agree with the holding in Kandrac that, as a general rule, when a commercial tenant in a multi-tenant shopping center has no control or contractual obligation to maintain a parking lot shared with other tenants, the common law does not impose a duty upon the tenant to do so. This is especially true where, as is the case here, the property owner assumes responsibility to maintain and secure the common areas of the shopping center in its lease with the tenant. We disagree with the trial court's conclusion that Whole Foods assumed control of a portion of the Clark Commons parking lot by directing its employees to park in a specified area. While it is true that Whole Foods directed plaintiff to park in a designated area of the parking lot, it had no contractual right or apparent ability to control that portion of the parking lot. The designated area was delineated only in printed materials distributed by Whole Foods to its employees. No signs, painted lines, or other markings designated the area as limited to Whole Foods employees. Instead, the area was available for parking to all employees and customers of the shopping center's many tenants. Although the trial court made no factual findings on this point, the record contains evidence that Silbert requested Whole Foods and the other tenants to instruct employees to park away from spaces near the shopping center's stores to permit customer access. 12 A-2275-16T4 The area in which plaintiff was instructed to park was not immediately adjacent to Whole Foods' leased space. The distant area of the parking lot was not "the perimeter outside its unit and other common areas that its invitees and passersby might foreseeably use." Nielsen, 429 N.J. Super. at 263. It was instead a somewhat remote area, selected because it was far from the entrances to the retail stores, and available to employees and customers of all of the tenants. Moreover, unlike the condominium unit owner in Nielsen, Whole Foods was not readily able to remedy known dangers in the area in which plaintiff's vehicle was damaged. Silbert had a contractual obligation and right to provide security in the parking lot at its discretion. It is unrealistic to conclude that Whole Foods could have provided security in the limited area of the lot to which it directed its employees. Additionally, in light of plaintiff's successful claims against Silbert, a finding that Whole Foods did not have a duty to protect plaintiff's vehicle from vandalism will not leave her without a remedy. The trial court found Silbert liable for the damage to plaintiff's vehicle based on its clear contractual obligation to provide security in the parking lot, its knowledge of past incidents of vandalism, and its failure to remedy the situation. 13 A-2275-16T4 We therefore vacate the judgment against Whole Foods. As a result of this finding, we also conclude that the trial court's allocation of seventy percent liability to Silbert was erroneous. We remand the matter for the trial court to mold the judgment to allocate all liability for plaintiff's damages and costs to Silbert. N.J.S.A. 2A:15-5.2(d).3 Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. 3 Having determined that the trial court erred in concluding that Whole Foods owed a duty of care to plaintiff, we do not reach defendant's argument that plaintiff failed to establish that Whole Foods breached that duty, or that any acts or omissions of Whole Foods were the proximate cause of the damage to plaintiff's vehicle. 14 A-2275-16T4

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Docket No.: a0188-17
Decided: 2018-07-09
Caption: R.W. v. R.V.L.
Status: unpublished
Summary:
PER CURIAM Defendant R.V.L. appeals from a November 29, 2016 final restraining order (FRO), entered under the Prevention of Domestic Violence Act (PDVA or Act), N.J.S.A. 2C:29-17 to -35, based on a predicate act of harassment, N.J.S.A. 2C:33-4. We affirm. I. Defendant and R.W. were married in November 2011, and have one child, a daughter born in September 2012.1 In 2014, R.W. filed for divorce and a final judgment of divorce was entered on March 3, 2015. Both before and after their divorce, disputes arose between the parties concerning parenting issues. The incident that gave rise to the FRO occurred on August 11, 2016. R.W. claimed that she and defendant had a misunderstanding about who had parenting time that day. When she realized it was defendant's day, she put the daughter into her car seat in defendant's vehicle. According to R.W., after she put the daughter into her car seat, defendant trapped her between the car and the car door and aggressively lunged at her, getting so close to her face that "she could smell his breath." R.W. acknowledged that she pushed defendant away in self-defense. She also acknowledged that defendant sustained scratches to his face, but she could not recall if she caused the scratches or if defendant had inadvertently scratched himself during the incident. Defendant contested R.W.'s version of events. He agreed that the parties had a misunderstanding about parenting time that day. He claimed, however, that R.W. became frustrated after having 1 We use initials to protect the parties' privacy interests. R. 1:38-3(d)(9). 2 A-0188-17T1 trouble getting the daughter into her car seat, and as she turned around, she struck him in the face causing his nose and lip to bleed. Defendant immediately called the police. When an officer observed scratches on defendant's face, R.W. was placed under arrest. Defendant obtained a temporary restraining order (TRO) against R.W. based on predicate acts of harassment and assault, and a prior history of domestic violence. The next day, R.W. obtained a TRO against defendant based on a predicate act of harassment and a prior history of domestic violence, including assault. Specifically, R.W.'s TRO alleged that defendant had "physically assaulted her in West Orange." Thereafter, the parties both sought FROs against each other and a consolidated FRO hearing was scheduled. Prior to the FRO hearing, R.W. amended her complaint to specify prior instances of domestic violence defendant committed against her. Those prior instances included a September 2014 incident where defendant lunged at her in the daughter's pediatrician's office, and a February 2015 incident where defendant entered the lobby of her apartment building despite being prohibited from entering her building. The court held a four-day consolidated FRO hearing between September and November 2016. Defendant, who represented himself, 3 A-0188-17T1 testified and did not present any other witnesses.2 R.W., who was represented by counsel, also testified and called four other witnesses: (1) a neighbor who witnessed the August 11, 2016 incident; (2) a friend who witnessed the September 2014 incident at the pediatrician's office; (3) a security guard from R.W.'s apartment building; and (4) the police officer who arrested R.W. on August 11, 2016. After considering the evidence, the trial court found R.W.'s testimony credible and defendant's testimony incredible. The court then found that R.W. had established that defendant committed the predicate act of harassment when he lunged at R.W. on August 11, 2016. The court also found that defendant had committed prior acts of domestic violence against R.W. by (1) grabbing her "engorged breast" in January 2013; (2) pinning her against a wall in May 2014; (3) grabbing a baby monitor out of her hands and breaking it in July 2014; and (4) lunging at her at a pediatrician's office in September 2014. The May and July 2014 incidents were raised by defendant in his complaint against R.W. The court, however, rejected defendant's allegations, accepted 2 Defendant is a licensed attorney in the State of New Jersey. 4 A-0188-17T1 R.W.'s version of events, and found that defendant committed acts of domestic violence on those dates.3 Based on those findings, the trial court concluded that an FRO was necessary to protect R.W. from further abuse, and on November 29, 2016, entered an FRO against defendant. The court also found that defendant failed to prove R.W. had committed any predicate act of domestic violence, and denied his application for an FRO. Defendant appeals only from the November 29, 2016 FRO entered against him. II. On appeal, defendant makes nine arguments, which relate to four alleged errors by the trial court: (1) it failed to recognize certain due process violations; (2) it misapplied the law on harassment; (3) it made unsupported factual findings; and (4) it made erroneous evidentiary rulings. We are not persuaded by any of defendant's arguments. We first address the law governing entry of the FRO. We then briefly address each of defendant's arguments. 3 The trial court referenced a "February 2016" incident in making its findings, but specified that it was referring to the incident "within the doctor's office." The record reflects that incident occurred in September 2014. 5 A-0188-17T1 A. Entry of the FRO Our scope of review is limited when considering an FRO issued by the Family Part following a bench trial. A trial court's findings are binding on appeal "when supported by adequate, substantial, and credible evidence." Gnall v. Gnall, 222 N.J. 414, 428 (2015) (citing Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). This deference is particularly appropriate where the evidence at trial is largely testimonial and hinges upon a court's credibility findings. Ibid. Domestic violence occurs when a party commits one or more of the enumerated offenses in the PDVA upon a person covered by the Act. See N.J.S.A. 2C:25-19(a). In determining whether to grant an FRO, a trial judge must engage in a two-step analysis. Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006). "First, the judge 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; see also N.J.S.A. 2C:25-29(a) (providing that an FRO may be granted only "after a finding or an admission is made that an act of domestic violence was committed"). Second, the court must determine that an FRO is necessary to provide protection for the victim. Silver, 387 N.J. Super. at 126-27; see also J.D. v. M.D.F., 207 N.J. 458, 476 (2011) (quoting 6 A-0188-17T1 N.J.S.A. 2C:25-29(b) in explaining that an FRO should not issue without a finding that "relief [is] necessary to prevent further abuse"). As part of that second step, the judge must assess "whether a restraining order is necessary, upon an evaluation of the fact[or]s 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., 207 N.J. at 475-76 (quoting Silver, 387 N.J. Super. at 127). Applying these standards, we discern no basis to disturb the trial court's decision to enter an FRO against defendant. There was substantial credible evidence in the record to support the trial court's findings that defendant committed the predicate act of harassment on August 11, 2016. There was also substantial credible evidence regarding the history of domestic violence by defendant against R.W. Based on those findings, the trial court correctly found that an FRO was necessary to protect R.W. from further abuse. B. Due Process Violations Defendant contends that his due process rights were violated when the trial court considered certain emails he sent to R.W. on the same day he filed a TRO against her. He also argues that the trial court improperly considered a prior instance of domestic violence from January 2013. Specifically, defendant asserts that 7 A-0188-17T1 he did not have notice of those matters because they were not expressly listed in R.W.'s initial TRO or in her amended complaint. Trial courts are not required to limit plaintiffs "to the precise prior history revealed in a complaint, because the testimony might reveal that there are additional prior events that are significant to the court's evaluation, particularly if the events are ambiguous." J.D., 207 N.J. at 479. Indeed, courts often attempt to develop a fuller picture of prior instances of domestic violence than those that are provided by the plaintiff in his or her complaint. Ibid. In those situations, however, trial courts should ensure that a defendant is afforded an adequate opportunity to be apprised of those allegations and to prepare a defense. Id. at 480. Initially, we note that defendant did not preserve his argument concerning the emails for appeal because he failed to object to their admission at the FRO hearing. Moreover, the trial court did not rely on the emails in finding that defendant committed the predicate act of harassment. Instead, it relied on the emails in finding defendant's testimony incredible, and in denying defendant's application for an FRO against R.W. We also reject defendant's second due process argument. R.W.'s amended complaint did not expressly identify January 2013 as a prior instance of domestic violence. R.W.'s initial TRO, 8 A-0188-17T1 however, expressly alleged that defendant had physically assaulted her. Accordingly, it is not clear from this record that defendant did not have notice of the January 2013 incident. Moreover, defendant did not request an adjournment or in any way suggest that he needed more time to investigate, prepare a defense, or present witnesses regarding the January 2013 incident. Although he objected to R.W.'s testimony regarding that incident, he ultimately chose to proceed and cross-examine R.W. Finally, even without the January 2013 incident, there was substantial credible evidence in the record regarding prior instances of domestic violence by defendant against R.W. This was not a case where "much of the testimony" about prior domestic violence involved instances beyond the four corners of the complaint. L.D. v. W.D., 327 N.J. Super. 1, 4 (App. Div. 1999). To the contrary, the record reflects three other prior instances of domestic violence, independent of the January 2013 incident. Specifically, the trial court found that defendant had (1) pinned R.W. against a wall in May 2014; (2) grabbed a baby monitor out of R.W.'s hands and broke it in July 2014; and (3) intimidated and lunged at R.W. at a pediatrician's office in September 2014. Defendant was aware of each of the other prior instances because R.W. identified the September 2014 event in her amended complaint and defendant raised the May 2014 and July 2014 events in his 9 A-0188-17T1 complaint against R.W. Those prior instances of domestic violence were supported by substantial credible evidence and, accordingly, we find no due process violation. C. Legal Conclusions Defendant next contends that the trial court erred in concluding that he intended to harass R.W. on two occasions. A person commits harassment if, with purpose to harass another, he: a. [m]akes, or causes to be made, a communication . . . at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm; b. [s]ubjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or c. [e]ngages in any other course of alarming conduct or of repeatedly committed acts with the purpose to alarm or seriously annoy such other person. [N.J.S.A. 2C:33-4.] A finding of "purpose" under the harassment statute may be inferred from the evidence presented. State v. Hoffman, 149 N.J. 564, 577 (1997). Here, substantial credible evidence in the record supported the court's findings that defendant intended to harass R.W. by intimidating and lunging at her during the incident on August 11, 2016, and at a pediatrician's office in September 2014. D. Factual Findings Defendant also contends that the trial court erred in making two factual findings. First, defendant argues that the emails he 10 A-0188-17T1 sent to R.W. on the day he filed a TRO against her did not constitute harassment. As noted, the trial court did not rely on those emails in finding that defendant committed the predicate act of harassment and, thus, we reject that argument. Second, defendant challenges the trial court's finding that he violated prior orders requiring curbside exchanges of the daughter. There was substantial credible evidence in the record regarding the prior court orders, consent agreements, and other communications between defendant and R.W., all of which required defendant to exchange the daughter either at the curbside, or in the vestibule of R.W.'s building. Thus, we discern no basis to disturb that finding. E. Evidentiary Rulings Finally, defendant contends that the trial court erred by excluding two documents from evidence: (1) a letter from the pediatrician's office; and (2) a letter from the Division of Child Protection and Permanency. Defendant did not lay a proper foundation for either of those documents to be admitted into evidence. The trial court provided well-reasoned explanations for its decisions to exclude those documents, and we find no abuse of discretion in either of those evidentiary rulings. See L.T. v. F.M., 438 N.J. Super. 76, 89 (App. Div. 2014). Affirmed. 11 A-0188-17T1

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Docket No.: a0526-16
Decided: 2018-07-09
Caption: IN THE MATTER OF STATE OF NEW JERSEY DIVISION OF STATE POLICE v. STATE TROOPERS FRATERNAL ASSOCIATION OF NEW JERSEY
Status: unpublished
Summary:
PER CURIAM Appellant State Troopers Fraternal Association of New Jersey (STFA) appeals from a September 22, 2016 final agency decision of the Public Employment Relations Commission (PERC) modifying a remanded interest arbitration award. The STFA argues PERC erred by modifying the award to eliminate "step increments" (salary increases regularly paid to Troopers pursuant to a salary guide), which were to be paid on the final day of the new collective negotiations agreement (CNA). The State of New Jersey, Division of State Police (Division) and PERC claim the modification was appropriate because the effect of the arbitrator's award was to circumvent the statutory two percent cap on interest arbitration awards, N.J.S.A. 34:13A-16.7, by granting a salary increase that was not fully accounted for during the term of the CNA but, nonetheless, established a new "base salary" for the next CNA that exceeded the two percent cap. We remand for PERC to reconsider its decision in light of the Supreme Court's subsequent ruling in In re Cty. of Atl., 230 N.J. 237 (2017). 2 A-0526-16T4 The STFA represents 1633 rank and file State Troopers, holding the ranks of Trooper, Trooper 1, and Trooper 2. The STFA and the Division were parties to a four-year CNA that extended between July 1, 2008 and June 30, 2012, which the parties finalized in September 2011 through interest arbitration. Pursuant to Article XXIX of the 2008-2012 CNA, the terms of the agreement continued in effect during negotiations for a successor CNA, as follows: A. This Agreement shall continue in full force and effect until June 30, 2012, and shall be automatically renewed from year to year thereafter unless either party shall notify the other in writing by certified mail prior to October 1 in the year preceding the contract expiration that it desires to amend the terms of this Agreement. Either party may submit to the other a written list of changes desired in the terms of a successor Agreement. B. Should either party notify the other of its desire to amend this Agreement through the procedure in A. above, the terms of this Agreement shall remain in force until the effective date of a successor Agreement, unless one party notifies the other party of its discontinuation within ninety (90) days. The 2008-2012 CNA also contains a salary advancement schedule, pursuant to which Troopers received step increments until they reached the top step of the top salary range. The salary guide contained nine steps in each of three salary ranges, with salary range seventeen applicable to Troopers, salary range 3 A-0526-16T4 eighteen applicable to Trooper 2s, and salary range nineteen applicable to Trooper 1s, the highest of the three ranks. The salary guide provided for a twelve-year salary progression, over which time Troopers' salaries would increase by approximately sixty percent. Upon achieving the top of the salary guide, Troopers would no longer be eligible to receive step increments. However, all Troopers, including those no longer eligible for step increments, were eligible to receive across-the-board (ATB) increases. Under the 2008-2012 CNA, ATB increases were paid, effective July 1 of each contract year, in the following amounts: 2.75% in 2008; 2.5% in 2009; 2.25% in 2010; and 0% in 2011. Finally, under the 2008-2012 CNA, all members of the State Police, from Troopers up to the Superintendent, also received a unique form of compensation known as "maintenance." No other State government employees receive a maintenance payment. Maintenance payments are phased in over the first three years of a Trooper's employment, with full payment in their third year and each year thereafter. Maintenance payments were increased over the course of the 2008-2012 CNA, congruent with the ATB increases, such that, effective July 1, 2011, the maintenance payment was $13,649.03. 4 A-0526-16T4 On several occasions in 2013 and 2014, the parties negotiated in an attempt to reach a successor agreement to the 2008-2012 CNA, after which they agreed to engage in factfinding pursuant to N.J.S.A. 34:13A-16(b)(1). On September 23, 2015, after a factfinder had been appointed but before he had issued a factfinding report, the Division filed a petition to initiate compulsory interest arbitration. PERC appointed Ira Cure as arbitrator, who held hearings between November 30, 2015 and January 4, 2016, hearing testimony from: Sergeant James Kiernan; accountant Michelle LaBruno; Michael Dee, Director of the Governor's Office of Employee Relations; Major Mark A. Wondrack; David Ridolfino, Acting Director of the State Office of Management and Budget; Detective Sergeant Stephen Urbanski; Trooper Michael Zanyor; Trooper Christopher J. Burgos; and Sergeant Frank Serratore. The parties also provided written 1 submissions. As it relates to this appeal, the hearing record included the previously discussed information regarding Trooper compensation. The record also reflected the Division made a unilateral decision 1 Much of the hearing evidence is not relevant to the limited issue presented on appeal, that is, the payment of step increments to Troopers not at the maximum of the pay scale. 5 A-0526-16T4 to stop paying step increments to Troopers, which became effective in pay period 20 in 2015. At the remand hearing, Dee testified the Division stopped the increments "based on the decision out of PERC [that] dealt with increments."2 This decision was a break with past practice and contrary to the terms of Article XXIX of the 2008-2012 CNA. According to counsel, this issue was also the subject of litigation in the Superior Court and before PERC. In addition, Kiernan and Burgos testified Troopers had experienced a reduction in their take-home pay due to implementation of the "Chapter 78" contributions to healthcare and pension costs, with Kiernan testifying to a personal loss of more than $9000 per year.3 Kiernan stated he was retiring early due to his static wages and the increases in benefit costs, and he knew many others who had made the same decision. On behalf of the Division, Dee conceded the number of Troopers had decreased from 2010, but he also stated that number has increased in recent years. At the same time, the two percent hard cap, applicable to interest arbitrations, limited the increases that could be awarded 2 See In re Cty. of Atl., PERC No. 2014-40, 40 N.J.P.E.R. 285 (¶ 109 2013), rev'd, 445 N.J. Super. 1 (App. Div. 2016), aff'd on other grounds, 230 N.J. 237 (2017). 3 L. 2011, c. 78. 6 A-0526-16T4 to unit members.4 Specifically, under N.J.S.A. 34:13A-16.7, increases could not exceed two percent per year compounded over the term of the contract. By way of example, when compounded, an annual two percent increase yields an aggregate 10.4% increase for a five-year CNA. However, payment of step increments to Troopers through pay period 20 of 2015 already consumed a large percentage of the funds available under the two percent cap. The Division proposed halting step increments for Troopers, notwithstanding that step increments would continue for Sergeants5 and "even though there is more room under the cap" because of the "pretty significant compression issue" within the State Police. Salary compression means there is little difference in the salaries paid between ranks. It results, in part, because the salary of the highest ranking officer is limited to $141,000. Finally, Ridolfino testified regarding general economic conditions, the State budget, and the State's unemployment rate, which was slightly higher than the national average. He also 4 L. 2010, c. 105, codified at N.J.S.A. 34:13A-16.7, which was extended to 2017 by L. 2014, c. 11. 5 On January 31, 2016, the same arbitrator who heard the interest arbitration for the STFA issued an interest arbitration award for the State Troopers NCO Association of New Jersey, Inc. (NCOA), pursuant to which step increments were restored and paid. 7 A-0526-16T4 stated the State's recovery from the economic slump was "sluggish" and trailing behind other states in the region. Ridolfino further testified the State's liquidity ratio was low, its credit rating had been downgraded numerous times, and expenditures on employee pension and health benefits were an increasingly large portion of the State budget, as well as the budget for the Department of Law and Public Safety, of which the State Police were a part. Ridolfino stated the State Police budget for fiscal year 2016 showed a 2.24% increase from the prior year. He conceded, however, the State budget was not subject to a two percent tax levy cap. He also conceded State Police salaries were a "negligible" component of the State budget, constituting less than one percent. Moreover, he indicated the State's general fund financed only sixty-five percent of the State Police budget with other sources funding the remaining thirty-five percent. On January 31, 2016, the arbitrator issued an interest arbitration decision and award (Initial Award). As it relates to this appeal, the initial award provided for a five-year CNA, between July 1, 2012 and June 30, 2017. In terms of compensation, the arbitrator accepted the Division's data and provided for a 1.25% across-the-board increase for all ranks and steps, effective the first full pay period after July 1, 2016. The arbitrator also 8 A-0526-16T4 allowed for step increments already paid and continued the freeze on further step increments that the Division had imposed as of pay period 20 in 2015. The arbitrator also froze the maintenance allowance at $13,819.64. Regarding the freeze on step increments, the arbitrator acknowledged he departed "from the historical pattern where the NCOA unit and the STFA unit have traditionally received the same wage increases." He also acknowledged the effect of the increased pension and healthcare contributions under Chapter 78, which had caused declines in take-home pay, and found the award did "little to compensate members of the STFA unit for their reduction in earnings." However, he found, "[b]ecause of the statutory limitations under the 2% Hard Cap, members of the STFA are precluded from receiving a general wage increase." The arbitrator also expressed concern the freeze on step increments could affect employee morale and stability of the workforce, particularly for more junior Troopers, stating: "While members at the top steps of the salary scale are well compensated, under the terms of the award, more junior Troopers will have to wait quite some time for a salary increase, and this may encourage some Troopers to seek employment elsewhere." He further stated: I am concerned that this award will have a deleterious impact upon the continuity and stability of the STFA bargaining unit. The 9 A-0526-16T4 record evidence shows that since 2010, there has been a decline in the total number of Troopers on the Division's payroll, and an increase in retirements. However, as noted throughout this document the 2% Hard Cap has left me no choice but to limit the amount of any salary increase. The STFA appealed to PERC, claiming the Initial Award failed to properly consider and analyze the N.J.S.A. 34:13A-16(g) statutory factors. The Division cross-appealed, claiming the five-year term resulted in an award that exceeded the two percent cap on interest arbitration awards. On April 14, 2016, PERC issued its decision. As it relates to this appeal, PERC found the arbitrator had not properly "costed out" the award to show compliance with the two percent statutory cap, because he did not include: the total base salary for the last year of the expired contract and how it was calculated; a calculation of the costs of the award, looking at the salary guide level or "scattergram"6 placement of unit members on the last day before the end of new award; and a final calculation to ensure that the total economic award did not increase the employer's base salary costs in excess of the compounded value of a two percent increase per year over the length of the contract. Instead, the 6 PERC defines "scattergram" as "a chart showing where employees are currently situated on the salary guide, thus providing a snapshot of the current total cost of the unit." 10 A-0526-16T4 arbitrator simply relied upon the Division's calculations. However, the Division based its calculations upon a proposed six- year contract term, whereas the arbitrator awarded a five-year contract. Accordingly, PERC remanded the matter to the arbitrator to undertake the necessary calculations. PERC. No. 2016-69, 42 NJPER 505 (¶ 141 2016). PERC also ordered the arbitrator to supplement his analysis of the statutory factors set forth in N.J.S.A. 34:13A-16(g), particularly factor nine (statutory restrictions on the employer), N.J.S.A. 34:13A-16(g)(9). Ibid. The arbitrator conducted a remand hearing on June 14, 2016, hearing testimony from Dee, Zanyor, and LaBruno. The parties submitted new proposals along with new calculations. On July 11, 2016, the arbitrator issued his revised award (Remand Award). As it relates to this appeal, the arbitrator accepted the Division's proposal and provided for a five-year CNA extending between July 1, 2012 and June 30, 2017, because it was "consistent with the historic pattern in which all three units – the STFA, NCOA and the STSOA[7] - negotiated their contracts at the same time." The STFA had proposed a five-and-one-half-year contract. 7 The State Troopers Superior Officers Association. 11 A-0526-16T4 With respect to maintenance compensation, the arbitrator also accepted the Division's proposal and provided for a 1.25% increase in maintenance payments, effective the first full pay period after July 1, 2016, in order to be consistent with the NCOA and STSOA units. Addressing statutory factor nine, the arbitrator found the Division used the correct data in making its calculations and the award complied with the two percent hard cap (increasing base salary by 10.24%), whereas the STFA's proposal did not. The arbitrator further stated: "This limited change in the maintenance calculation is all that is available as a wage increase because the CNA's provision for incremental increases subsumed any possible salary increase as of the 20th pay period in September 2015." The arbitrator rejected the STFA's demand for a 1.25% increase to Troopers at step nine of range nineteen, for the last six months of the CNA. However, the arbitrator partially granted STFA's proposal to reinstate step increases, which the Division opposed. More specifically, the arbitrator reinstated step increases beginning on June 29, 2017, the day before the new CNA expired. At that time, Troopers would be placed at the step and range they would have been eligible for, as if there had been no suspension of step increments after pay period 20 in 2015, and they would resume their normal progression on the step and range chart pending 12 A-0526-16T4 negotiation of a successor CNA. However, the Troopers would not receive any back pay for the period during which step increases were suspended. Regarding this provision, the arbitrator stated: The STFA has argued that the effect of my Initial Award, were it to be implemented, would be to permanently freeze all step movement indefinitely. While the STFA notes that it could possibly negotiate the resumption of step movement going forward, at the present time there is no clear "career path for compensation." This would be an unjust result. In addition, especially as a result of the Appellate Division's decision in In re Cty. of Atl., 445 N.J. Super. 1 (App. Div. 2016), pet. for certif. pending, which restored the concept of the dynamic status quo to collective negotiations, the freeze in step movement may persist well after this five year CNA expires.8 Accordingly, it would be unjust to permit such an indefinite freeze. In addition, because the suspension will end the day before the last day of the contract's expiration the cost to the Division if any will be de minimis. Any additional costs will not occur during the term of this CNA. The parties will be free to negotiate changes to the compensation package especially step movement at the conclusion of this agreement. [(citation to the record omitted).] The Division appealed from the remand award, arguing the arbitrator's award of step movements on June 30, 2017, the last day of the successor contract, did not comply with the two percent cap, was not calculated to comply with the two percent cap, and 8 The Court subsequently granted certification and affirmed the panel's decision on other grounds. Cty. of Atl., 230 N.J. 237. 13 A-0526-16T4 attempted to avoid the statutory limitations of the compulsory interest arbitration law. The STFA responded the resumption of step movement did not violate the statute. The STFA also cross- appealed, arguing the arbitrator did not consider all of the N.J.S.A. 34:13A-16(g) statutory factors when analyzing the transportation allowance and education incentive proposals. On September 22, 2016, PERC issued its final agency decision, affirming the remand award except as modified to exclude the step increments awarded on the last day of the CNA. Explaining this modification, PERC stated: Here, . . . the State is charged with a sizable double increment for a contract term that was not part of the interest arbitration, was not negotiated, and is not charged to either contract term. The last day of this contract will be critical for determining how the Troopers advance through the salary guide in their next contract. Essentially, due to the award's double increment bump on the last day, the next contract's raises would be applied using that higher salary guide level as a starting point but the significant cost of that double increment would not be accounted for. For those 84 Troopers highlighted in the State's brief who were at Range T-17, Step 4 in 2015, their double increment up to Step 6 on the last day of the contract would result in a salary increase of $5,792.04 as they jump from $66,438.00 to $72,334.02. That $5,792.04 represents a salary increase of 8.72%. However, only 1 day of that increase is charged to this contract because the double increment was awarded for the last day. Thus, 14 A-0526-16T4 only $15.87 of the significant 8.75% increase was charged to this contract, while the remaining $5,776.17, or a rise of 8.69%, carries over into the next contract term that was not part of this interest arbitration and the opportunity to negotiate the salary for the next contract has been extinguished. Because those Troopers would already be at the higher salary guide level when negotiations and/or interest arbitration are being conducted for the next contract, that 8.69% of the double increment bump will not be accounted for as a new salary increase in the next contract. Thus, the bulk of the significant salary increment is not charged to either this contract or the next, effectively escaping the 2% Hard Cap. While the parties may mutually agree to salary increases in excess of the 2% Hard Cap if their negotiations are successful and interest arbitration is avoided for the next contract, the arbitrator's award of the double bump on the last day of this contract hamstrings the employer and union by baking in a carried over 8.69% raise, effectively taking those salary negotiations out of the parties' hands. Such an accounting maneuver in the interest arbitration process circumvents the legislative purpose of the 2% Hard Cap by permitting extreme, unaccountable raises in the transition between contracts. Accordingly, we find that the arbitrator's grant of double increments on the last day of the award handicaps the next round of negotiations, undermines the legislative intent to control costs, and disregards the financial impact of the step movement on the taxpayer. See N.J.S.A. 34:13A-16(g)(1) and – (6) and N.J.S.A. 34:13A-16. We therefore modify the arbitrator's remand award to remove the granting of increments on the last day of the CNA. [(footnotes omitted).] 15 A-0526-16T4 PERC rejected the STFA's argument that the award of increments on the last day of the CNA must be upheld pursuant to statutory provisions that mandate the payment of salary increments to State Troopers, stating: "The Legislature was well aware of these statutes when L. 2014, c. 11 was enacted. The Legislature could have chosen to exempt STFA members and other State Police personnel, but it did not." PERC also rejected the STFA's argument that PERC precedent, specifically, In re Borough of Bogota, PERC No. 99-20, 24 N.J.P.E.R. 453 (¶ 29210 1998), prohibited modification of the award as to salary increases but, instead, required a remand for reconsideration. As to this issue, PERC stated: "Bogota involved the potential modification of a remand award regarding across the board salary increases. The instant matter only concerns the arbitrator's award of automatic increments on the last day of the CNA and our rationale for modifying the remand award is set forth above." Finally, aside from the step increment issue, PERC found the arbitrator otherwise complied with its directions. He adequately showed the methodology he employed to calculate base salary and also costed out the award, which, aside from the step increments, amounted to an increase of 10.24% over five years, in compliance with the two percent statutory cap. 16 A-0526-16T4 The STFA appealed from the final agency decision. It raises the following points on appeal: POINT I THE COMMISSION IMPROPERLY EXCEEDED THE SCOPE OF ITS REVIEW WHEN IT DETERMINED IT WOULD ALTER THE ARBITRATOR'S DECISION. POINT II THE COMMISSION IS NOT FREE TO CONDUCT A DE NOVO REVIEW AND THEREAFTER FASHION ITS OWN AWARD. POINT III THE ARBITRATOR AND THE COMMISSION ARE STATUTORILY REQUIRED TO PROVIDE STEP MOVEMENT TO STATE TROOPERS PURSUANT TO TITLE 53. POINT IV THE COMMISSION DEPARTED FROM JUDICIAL AND AGENCY PRECEDENT WHICH FORBADE IT FROM MODIFYING AN AWARD BASED UPON FUTURE BUDGETARY RESTRICTIONS. POINT V THE STFA WAS DEPRIVED OF FUNDAMENTAL FAIRNESS AND DUE PROCESS WHEN IT WAS SURPRISED WITH A NEW REGULATORY RULE. POINT VI PERC'S NEW RULE IS PLAINLY UNREASONABLE, CONTRARY TO THE ACT AND UNDERMINES THE LEGISLATURE'S INTENT. A. APPLICATION OF THE CAP IS OUTSIDE OF PERC'S MANDATE 17 A-0526-16T4 B. PERC'S DECISION WAS ARBITRARY AND CAPRICIOUS 1. VAGUENESS 2. VOID IN APPLICATION IN THE ABSENCE OF GUIDING STANDARDS C. THE NEW "RULE" IS BASED UPON AN ERRONEOUS CALUCATION D. VIOLATION OF THE LEGISLATIVE INTENT The New Jersey Employer-Employee Relations Act (Act), N.J.S.A. 34:13A-1 to -43, includes a compulsory interest arbitration procedure for police departments and police officer representatives who reach an impasse in collective negotiations. N.J.S.A. 34:13A-16(b)(2). Either party may petition to initiate this process with PERC. Ibid. The parties may appeal the arbitrator's award to PERC and may, in turn, appeal PERC's final decisions to this court. N.J.S.A. 34:13A-16(f)(5)(a). Our review of "PERC decisions reviewing arbitration is sensitive, circumspect and circumscribed." Twp. of Teaneck v. Teaneck Firemen's Mut. Benevolent Ass'n Local No. 42, 353 N.J. Super. 289, 300 (App. Div. 2002) (citing In re Hunterdon, 116 N.J. 322, 328 (1989)), aff'd o.b., 177 N.J. 560 (2003). We will uphold these decisions unless they are "clearly arbitrary or capricious." Ibid. (citation omitted). However, we provide heightened scrutiny of statutorily mandated public interest arbitration where public 18 A-0526-16T4 funds are at stake. Hillsdale PBA Local 207 v. Borough of Hillsdale, 137 N.J. 71, 82 (1994). PERC's role is to consider whether the arbitrator properly applied the factors articulated in N.J.S.A. 34:13A-16(g) and issued a reasonable determination. Teaneck, 353 N.J. Super. at 306. PERC is statutorily authorized to "affirm, modify, correct or vacate" an interest arbitration award or it "may, at its discretion, remand the award to the same arbitrator or to another arbitrator . . . for reconsideration." N.J.S.A. 34:13A- 16(f)(5)(a). The arbitrator's role, in turn, is to choose between the parties' final offers after considering these factors. Hillsdale, 137 N.J. at 82. PERC will not vacate an award unless: (1) the arbitrator failed to give due weight to the N.J.S.A. 34:13A-16(g) factors he or she determined were relevant, "(2) the arbitrator violated the standards in N.J.S.A. 2A:24-8 and -9[,] or (3) the award is not supported by substantial credible evidence in the record as a whole." In re State, 443 N.J. Super. 380, 385, (App. Div.) (citing Hillsdale, 137 N.J. at 82), certif. denied, 225 N.J. 221 (2016). We will similarly uphold an award if it is supported by "substantial credible evidence in the record." Hillsdale, 137 N.J. at 82 (citation omitted). 19 A-0526-16T4 Primarily, the STFA argues PERC erred in modifying the arbitrator's remand decision to eliminate the ordered step increments. We remand this matter to PERC for reconsideration of its final decision in light of the Supreme Court's subsequent decision in Cty. of Atl. In Cty. of Atl., we reversed PERC's final agency decisions "because PERC's abandonment of the dynamic status quo doctrine was action outside the scope of its legislative mandate, which is the implementation of the [Act]." 445 N.J. Super. 1, 6 (App. Div. 2016). We concluded "PERC wrongly assumed that government employers cannot negotiate to avoid paying increments after the lapse of CNAs" and also determined the employer "has the option, when engaged in new negotiations, to recoup salary increments in a new contract." Id. at 18. In Cty. of Atl., the Court concluded it "need not determine whether, as a general rule, an employer must maintain the status quo while negotiating a successor agreement." 230 N.J. at 243. Instead, the Court held "the governing contract language requires that the terms and conditions of the respective agreements, including the salary step increases, remain in place until a new CNA is reached." Ibid. The Court found "salary step increments is a mandatorily negotiable term and condition of employment because it is part and 20 A-0526-16T4 parcel to an employee's compensation for any particular year." Id. at 253. Accordingly, the Court faced the issue "whether the salary increment systems provided for in the expired CNAs still governed working conditions during the hiatus period between agreements." Id. at 253-54 (citing N.J.S.A. 34:13A-5.3, - 5.4(a)(1), and -5.4(a)(5)). In Cty. of Atl., the Atlantic County-PBA Local 77 CNA stated "[a]ll provisions of this Agreement will continue in effect until a successor Agreement is negotiated." Id. at 244. Similarly, the Atlantic County-PBA Local 34 CNA provided "[a]ll terms and conditions of employment, including any past or present benefits, practices or privileges which are enjoyed by the employees covered by this Agreement that have not been included in this Agreement shall not be reduced or eliminated and shall be continued in full force and effect." Id. at 244-45. The Bridgewater-PBA Local 174 CNA stated "[t]his agreement shall remain in full force and effect during collective negotiations between the parties beyond the date of expiration set forth herein until the parties have mutually agreed on a new agreement." Id. at 248-49. The Court found the three expired CNAs "contain clear and explicit language that the respective salary guides – and all other terms and conditions set forth in those agreements – will continue until a successor agreement is reached." Id. at 255. 21 A-0526-16T4 Accordingly, the Court found the salary increment systems in question "remained in effect after the agreements' expiration dates under basic principles of contract law." Ibid. The Court noted the public entities "could have simply negotiated different contract terms." Id. at 256. The Court held: [T]he unilateral modification at issue here directly contradicted the parties' binding written agreement. Because the salary increment system was a term and condition of employment that governed beyond the CNAs' expiration date, [the public entity employers] committed an unfair labor practice when they altered that condition without first attempting to negotiate in good faith, in violation of N.J.S.A. 34:13A-5.3, -5.4(a)(1), and -5.4(a)(5). [Id. at 256.] Here, the parties' 2008-2012 CNA explicitly stated "the terms of this Agreement shall remain in force until the effective date of a successor Agreement," similar to the three CNAs at issue in Cty. of Atl. See id. at 244-45, 248-49. However, based upon PERC's Cty. of Atl. decision (which the Appellate Division and Supreme Court reversed), the Division unilaterally ceased paying step increments as of pay period 20 in 2015, pending negotiation of a successor agreement. At the arbitration hearings, counsel stated the cessation of step increments was the subject of litigation both in the Superior Court and before PERC. 22 A-0526-16T4 The Division maintains Cty. of Atl. is distinguishable because it was premised upon PERC's consideration of the two percent property tax levy cap imposed by the Local Budget Law, N.J.S.A. 40A:4-45.44 to -45.47, whereas this matter involves the two percent cap imposed on interest arbitration awards under the Act, N.J.S.A. 34:13A-16.7(b). We are unpersuaded by this argument. Ultimately, the Court's holding in Cty. of Atl. was premised upon the terms of the CNAs. 230 N.J. at 254-57. The Court held "the governing contract language requires that the terms and conditions of the respective agreements, including the salary step increases, remain in place until a new CNA is reached." Cty. of Atl., 230 N.J. at 243. Just as in Cty. of Atl., "we need not look beyond the [contract itself] to conclude that the step increases continued beyond the expiration of the contracts." Id. at 254. Here, like the contracts reviewed in Cty. of Atl., the 2008-2012 CNA between the Division and the SFTA stated the terms of the CNA, including step increments, "shall remain in force until the effective date of a successor Agreement." Accordingly, "the salary increment system[] remained in effect after the agreement['s] expiration date[] under basic principles of contract law." Id. at 255. Notwithstanding that contract language, effective in pay period 20 in 2015, the Division unilaterally stopped paying salary 23 A-0526-16T4 increments. Around the same time, the Division petitioned for compulsory interest arbitration. The State's failure to comply with the terms of the CNA was not addressed by the arbitrator or by PERC.9 Thus, in light of the Supreme Court's decision in Cty. of Atl., we vacate the September 22, 2016 final agency decision and remand for PERC to reconsider the terms of the CNA and the Division's non-compliance with those terms in the context of the parties' arbitration and the statutory cap on interest arbitration awards. In light of our ruling, we do not reach the other issues raised by the SFTA. Vacated and remanded for proceedings consistent with this opinion. We do not retain jurisdiction. 9 We recognize PERC rendered its final decision before the Supreme Court issued its opinion in Cty. of Atl. 24 A-0526-16T4

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Docket No.: a0652-16
Decided: 2018-07-09
Caption: K.L. v. F.T.M.
Status: unpublished
Summary:
PER CURIAM 1 We use initials to protect the identity of the child. Defendant F.T.M. appeals from the June 29, 2016 trial court order amending the parenting time schedule of the parties' then five year-old child, L.M.-L., and from the court's September 21, 2016 order denying his motion for reconsideration.2 The trial court, following a plenary hearing, amended the parenting time schedule for the parties' then one-year-old set forth in a December 6, 2012 consent order that provided defendant with diurnal time Monday through Friday, the third weekend of every month except in July and August, and two non-consecutive weeks in July and August. The new court-set schedule allows defendant parenting time on alternate weekends and twice-weekly "dinner parenting time." The summer, spring break and holiday parenting time schedule remain unchanged. 2 In his merits brief, defendant makes mention of his appeal of the denial of his request for custody, expressed in the court's March 14, 2016 order. Defendant did not cite that order in his original or amended notices of appeal or case information statements as one from which he appealed. We have made clear "it is only the judgment or orders designated in the notice of appeal which are subject to the appeal process and review." 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004). We decline to consider an order if the appellant "did not indicate in his notice of appeal or case information statement that he was appealing from the order." Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 460-61, 461 n.1 (App. Div. 2002). Further, although mentioned in the brief, it was not argued; as such we will not consider the custody issue. Noye v. Hoffmann-La Roche, Inc., 238 N.J. Super. 430, 432 n.2 (App. Div. 1990) (referring to matters not argued in the brief as "abandoned"). 2 A-0652-16T4 Defendant argues: POINT I TRIAL COURT EGREGIOUSLY ABUSED DISCRETION IN REDUCING FATHER'S PARENTING TIME FROM SHARED PARENTING OF 50% OR MORE OF THE TIME TO EVERY OTHER WEEKEND AND 2 WEEK NIGHT DINNERS, CAUSING THE CHILD TO LOSE CONTINUITY WITH FATHER, AND GIVING MOTHER'S FAMILY AND SURROGATES DE FACTO CUSTODY TO WATCH CHILD WHEN MOTHER CANNOT; THIS WAS NOT IN THE CHILD'S BEST INTERESTS TO REDUCE FATHER'S PARENTING TIME WHEN CHILD HAD BEEN CARED FOR BY FATHER DURING DAYS AND MANY EVENINGS SINCE BIRTH. POINT II TRIAL COURT EGREGIOUSLY ABUSED DISCRETION BY RELYING UPON MOTHER'S FALSE ALLEGATIONS THAT FATHER NEVER CONSULTED WITH HER ABOUT HIS RELOCATION FROM JERSEY CITY, N.J. TO OAK RIDGE, N.J. WHEN COURT BELIEVED MOTHER AND NOT FATHER, WHERE FATHER HAD SECOND RESIDENCE IN JERSEY CITY, N.J. TO CARE FOR CHILD DURING DAYS SINCE CHILD WASN'T IN SCHOOL FULL TIME; MOTHER COMMITTED BAD FAITH ACT TO REDUCE FATHER'S PARENTING TIME ON FALSE ALLEGATIONS AND SHOULD HAVE BEEN DENIED ANY RELIEF WHATSOEVER, SINCE IT WAS NOT IN CHILD'S BEST INTERESTS. POINT III THE TRIAL COURT'S JUNE 29, 2016 ORDER AND SEPTEMBER 21, 2016 ORDER (ALONG WITH THE MARCH 14, 2016 CUSTODY ORDER) AND FINDINGS SHOULD BE REVERSED FOR NOT ORDERING A CUSTODY EXPERT INTO THE CASE AND NOT REVIEWING EVIDENCE OF COMPARISONS BETWEEN THE DIFFERENCE OF THE OAK RIDGE, NEW JERSEY AND JERSEY CITY, NEW JERSEY LIFESTYLES AND SCHOOL SYSTEMS FOR PURPOSES OF CUSTODY DETERMINATION. 3 A-0652-16T4 POINT IV FURTHER PROCEEDINGS IN THIS MATTER SHOULD BE CONDUCTED BEFORE A DIFFERENT JUDGE. We affirm. In the context of determining child custody – which we have held akin to determining parenting time – the Legislature found and declared that "the public policy of this State [is] to assure minor children of frequent and continuing contact with both parents [after divorce] and that it is in the public interest to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy." N.J.S.A. 9:2-4. Both parties have a fundamental right to "the custody, care and nurture of the[ir] child." Watkins v. Nelson, 163 N.J. 235, 245 (2000) (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944)). As neither has a right that is superior to the other, "the sole benchmark" to a determination of the parenting time issue is the best interests of the child, Sacharow v. Sacharow, 177 N.J. 62, 80 (2003); that is, what will protect the "safety, happiness, physical, mental and moral welfare of the child," Beck v. Beck, 86 N.J. 480, 497 (1981) (quoting Fantony v. Fantony, 21 N.J. 525, 536 (1956)), "no matter what the parties have agreed to." P.T. v. M.S., 325 N.J. Super. 193, 215 (App. Div. 1999) (quoting Giangeruso v. Giangeruso, 310 N.J. Super. 476, 479 (Ch. Div. 4 A-0652-16T4 1997)). A judgment that incorporates the parties' agreement regarding custody or visitation may be modified if the party seeking modification shows both changed circumstances and the agreement is no longer in the best interests of the child. Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 152 (App. Div. 2003); see also Finamore v. Aronson, 382 N.J. Super. 514, 522-23 (App. Div. 2006). Modification of a prior agreement is appropriate when there is a change in circumstances warranting it, i.e., a development that affects the welfare of the child. See Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div. 1958). In evaluating whether the requisite changed circumstances exist, a court must consider the circumstances that existed when the prior parenting time order was entered. Id. at 287-88. After considering those facts, a court can then "ascertain what motivated the original judgment and determine whether there has been any change in circumstances." Id. at 288. The changed circumstances here are obvious. The agreement established parenting time when L.M.-L. was an infant. Her current school schedule impacts her daily life. No longer can she spend her weekdays with a parent. The trial court properly recognized a plenary hearing was necessary to determine the child's best interests in light of these changed circumstances. 5 A-0652-16T4 Generally, in our limited scope of review, we will not disturb the factual findings of the trial court. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998). Those findings will be upheld when they are supported by adequate, substantial and credible evidence. G.L., 191 N.J. at 605. "Deference is especially appropriate 'when the evidence is largely testimonial and involves questions of credibility.'" Cesare, 154 N.J. at 412 (quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). We will set aside those findings only if they are so "manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Ibid. (quoting Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). We owe no deference, however, to the trial court's "interpretation of the law and the legal consequences that flow from established facts." Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We see no reason to disturb the trial court's credibility determination that defendant "lied to th[e] [c]ourt." Despite defendant's contentions that the court based its finding that he was incredible on "false information" and "one false [a]llegation" 6 A-0652-16T4 — that he unilaterally moved from Jersey City to Oak Ridge without informing plaintiff — the court found defendant was not direct and forthright in answering its question regarding when he moved to Oak Ridge, and that his testimony on that issue varied. That determination is entitled to our deference. Defendant's argument that the trial court "made no relevant findings to support the significantly reduced parenting time schedule [it] imposed," is belied by his other averments that we now review. Defendant argues that the judge erred in finding his move to Oak Ridge was "unilateral" because plaintiff knew he had moved. We determine that argument to be meritless. Defendant admitted he moved to Oak Ridge without consulting plaintiff, making that choice unilateral. Plaintiff's knowledge of the move – no matter how or when learned – does not change the unilateral nature of defendant's decision. The court's determination undermined defendant's contention that he was going to keep residence at a rented-out Jersey City apartment so that L.M.-L. did not have to travel forty-five minutes from Oak Ridge to Jersey City on school days. The court concluded, "I don't know if you'll actually go through with it. [The rented apartment] was a point of income for you . . . ." The court considered defendant's move and his failure to communicate with plaintiff regarding their child – evidenced by 7 A-0652-16T4 defendant's responses to the court's examination – as factors in amending the parenting time schedule. The trial court's findings corresponded to some of the best interests factors required to be considered: the parents' communication and cooperation abilities; the needs of the child; and the geographical proximity of the parents' homes. Defendant asserts that the court failed to consider the difference in living environment between Jersey City and Oak Ridge, where defendant lives in a five-bedroom home shared by "his fiancé and several other children that [L.M.-L.] had become accustomed to being with and playing with." First, the argument is at odds with defendant's assertion that he would keep the Jersey City apartment so L.M.-L. could attend school there. Moreover, we perceive no, or at least scant and conclusory, evidence regarding the difference in lifestyles and schools between the two municipalities. See N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 278 (2007) (holding evidence not presented to the trial court fell outside the scope of appellate review). The same holds true for the argument defendant raises for the first time that plaintiff's work schedule results in L.M.-L. being cared for – not by her mother – but by "surrogates, . . . her parents and extended family." Defendant argues he, a retired tactical unit police officer, is available to care for L.M.-L. at 8 A-0652-16T4 any time. Although potentially related to the best interest standard, we see no evidence in the record to support his averment. We find unavailing defendant's argument that the trial court erred by not appointing an expert. Rule 5:3-3(a) provides the trial judge with the discretionary authority to appoint a mental health expert to perform parenting/custody evaluations of the parties and child whenever the court concludes that "disposition of an issue will be assisted by expert opinion." Defendant made no request for an expert; thus there was no "demonstration of good cause therefor." Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 5:3-3 (2018). We will not address this issue because defendant did not raise it before the trial court. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Further, we see no request in the record by defendant to present his own expert, see R. 5:3-3(h); we therefore will not entertain defendant's contention made at oral argument that he was willing to pay for an expert but the judge declined. A decision concerning parenting time is committed to the sound discretion of the judge. See Abouzahr, 361 N.J. Super. at 157 (according deference to the trial court's "exceedingly difficult and delicate" exercise of discretion on custody and parenting time matters). As such, the decision of the trial court is reviewed for an abuse of that discretion. Schweizer v. Mac 9 A-0652-16T4 Phee, 130 N.J. Super. 123, 127 (App. Div. 1974) (stating the proposition of law that reversal of discretionary decisions only follows in cases of a clear abuse of that discretion). An abuse of discretion occurs where the "decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." United States v. Scurry, 193 N.J. 492, 504 (2008) (alteration in original) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)). We disagree with defendant that the trial court did not apply the best interests test in determining parenting time. The court's opinion demonstrates a reasoned weighing of evidence against best interests factors to support its conclusion. We reviewed plaintiff's remaining challenges to the denial of his motion for reconsideration and determine they lack sufficient merit to warrant discussion in our opinion. R. 2:11- 3(e)(1)(E). Affirmed. 10 A-0652-16T4

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Docket No.: a1741-15
Decided: 2018-07-09
Caption: STATE OF NEW JERSEY v. P.C.
Status: unpublished
Summary:
PER CURIAM Defendant P.C.1 appeals from a November 9, 2015 judgment of conviction following the entry of a guilty plea to weapons possession. In particular, defendant argues the trial court's denial of his motion to suppress evidence found after police searched his living areas was error. Having reviewed defendant's arguments in light of the record and applicable legal principles, we affirm. We discern the following relevant facts from police testimony elicited at the motion to suppress. On April 22, 2014, at around 6:30 p.m., a Maplewood police sergeant and several officers responded to defendant's house in Maplewood. Earlier that day, due to concerns about his mental health, defendant was transported by police to East Orange General Hospital for crisis intervention. Soon after, the police received complaints from a family member that defendant possessed a firearm and had sent text messages threatening to hurt people.2 The sergeant testified the police "received a call from one of them and he was concerned about the safety of his family and of the community[.]" 1 Because the facts of this case involve issues regarding defendant's mental health, we use initials to protect his privacy. 2 For example, the following message was among those provided to police: "I can't take it anymore. If there's a murder, don't fucking be surprised, I'm doing my best but these bitches are killing me." 2 A-1741-15T1 The sergeant arrived at defendant's house and was met at the door by defendant's aunt and grandfather. After they spoke at the door for a while, "the family let [him] in and . . . all agreed it was best to get the gun out of the house." The police asked the family for permission to search for the gun, and while the aunt was nervous, the grandfather gave permission for the search. The grandfather represented he was the homeowner, and he lived in the home with the aunt and defendant. At some point during the police presence in the home, a third family member arrived, and "was kind of aggravated and wanted [the police] to do something[.]" The sergeant went upstairs with the aunt and the grandfather to conduct the search. There were three bedrooms located upstairs, along with a second kitchen, through which defendant's bedroom was located. When the sergeant got to the top of the stairs he could see into the kitchen and another room behind that, a bedroom. According to the sergeant the kitchen was "in shambles" with knives sticking in the walls and holes in the walls. The family directed the sergeant to defendant's bedroom, where he observed a book about improvised explosive devices, as well as knives and other weapons including an Airsoft, replica weapons that looked like real guns, brass knuckles, throwing knives, samurai swords, fake hand grenades, a Taser gun, and bulletproof vests. 3 A-1741-15T1 The sergeant called for an additional police unit. None of the family objected, and the aunt and the grandfather expressed agreement that the various implements should be removed from the house. The family assisted police in gathering things. Additionally, the grandfather informed the police he owned a shotgun, which defendant possessed. The shotgun was located, with ammunition, in a locked gun safe in the upstairs kitchen. The grandfather provided police with the keys. The shotgun had been altered in an illegal fashion. In October 2014, an Essex County Grand Jury returned an indictment charging defendant with third-degree possession of a sawed-off shotgun, N.J.S.A. 2C:39-3(b); fourth-degree possession of a stun gun, N.J.S.A. 2C:39-3(h); fourth-degree possession of a weapon (two pairs of brass knuckles) under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5(d); and fourth-degree possession of a gravity knife without an explainable lawful purpose, N.J.S.A. 2C:39-3(e). Defendant moved to suppress the seized items. Over several days in June 2015, the court conducted a hearing on defendant's motion to suppress. At the motion hearing, the state offered the sergeant's testimony as outlined above. The aunt offered a different version of events. She stated, "[the police] rang the doorbell and I asked what they wanted . . . I 4 A-1741-15T1 forgot what they said and I asked for a search warrant. They did not show me nothing. And they just ran upstairs." She testified the officers did not ask for consent to search the house, did not show her a warrant, told her to remain downstairs, did not allow her upstairs, and ransacked the upstairs of the home, breaking things. Defendant lived in the upstairs bedroom, and the aunt initially stated defendant paid rent and was the sole user of the upstairs kitchen and the attached bedroom, but the occupants of the home had to walk past the kitchen to get downstairs, and would enter the area every so often. The grandfather testified that when the police came to the house on the day in question, they "came through the front door straight up, straight in." They did not ask for consent to search the home, and did not give him any forms to sign. He said he followed the police upstairs and was told to go back downstairs. The grandfather testified defendant paid rent, and lived upstairs in an area that was not open to everyone else in the home but he would go upstairs into defendant's living area sometimes to visit. The gun located in the safe belonged to him, and he testified he did not provide police with the key. He denied a third family member was present in the home during the search, 5 A-1741-15T1 asserted he did not ask the police to remove any items, and did not know these items were present in his home. The trial judge denied defendant's motion to suppress. He found the sergeant to be a credible witness. In contrast, the judge found the testimony of the aunt and the grandfather not credible. The trial judge noted their stories were aligned with one another's, how they were largely different than the sergeant's, and were biased by not wanting defendant to get in more trouble than he already was. He found it illogical that the sergeant ignored the aunt's questions and went into this private home without a warrant and the police just did what they felt they needed to do. The judge stated, there was a valid exception here to the warrant requirement that the police . . . were performing an important community caretaking responsibility . . . by removing the weapons in the home for the protection of the . . . family . . . the urgency was that there was no telling when [defendant] was gonna be returning[.] Further, the judge made findings on the issue of consent. He stated, "there was no evidence [the sergeant] advised the family . . . that they had a right to refuse." However, "consent was not affected by the failure of the police to specifically inform the person that they had a right to refuse consent or inspection, 6 A-1741-15T1 where there was no indication that he would have declined [to consent] had he been informed of that right." On September 25, 2015, defendant pled guilty to all four charges of the indictment. In return for the plea, the State downgraded the third-degree possession of the sawed-off shotgun to a fourth-degree regulatory violation of N.J.S.A. 2C:39-10(a). The State recommended a sentence of non-custodial probation conditioned upon the defendant's continued participation in mental health counseling, alcohol counseling, random drug testing, and maintained employment. On November 9, 2015, the judge sentenced defendant in accordance with the plea agreement, finding mitigating factor ten, and aggravating factor nine, and that these were in equipoise. On each count, defendant was sentenced to a three-year probationary term, running concurrently, conditioned upon him maintaining employment, continuing with mental health counseling, continuing with AA meetings, forfeiting all weapons seized, performing seventy-five hours of community service, and submitting to drug and alcohol testing. Appropriate fines and penalties were assessed. This appeal followed. On appeal, defendant raises the following issues: 7 A-1741-15T1 POINT I. THE COURT ERRED IN HOLDING THAT THE WARRANTLESS SEARCH OF [P.C.'s] ROOMS FELL WITHIN THE COMMUNITY-CARETAKING AND CONSENT- TO-SEARCH EXCEPTIONS TO THE WARRANT REQUIREMENT. A. THE COMMUNITY CARETAKING DOCTRINE, WHICH IS SUBSUMED WITHIN THE EMERGENCY- AID DOCTRINE, DID NOT JUSTIFY THE ENTRY INTO AND SEARCH OF [P.C.'s] ROOMS. B. THE CONSENT-TO-SEARCH EXCEPTION TO THE WARRANT REQUIREMENT DID NOT APPLY TO THE ENTRY INTO AND SEARCH OF [P.C.'s] ROOMS WHERE NEITHER HIS GRANDFATHER NOR HIS AUNT HAD ACTUAL OR APPARENT AUTHORITY TO CONSENT TO A SEARCH OF THAT AREA. I. When we review a grant or denial of a motion to suppress we defer to the factual findings of the trial court if those findings are supported by sufficient evidence in the record. State v. Hubbard, 222 N.J. 249, 262 (2015) (citation omitted). We defer 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) (citations omitted). These factual findings should only be disturbed if they are "so clearly mistaken that the interests of justice demand intervention and correction." State v. Gamble, 218 N.J. 412, 425 (2014) (quoting State v. Elders, 192 N.J. 224, 244 (2007)); Hubbard, 222 N.J. at 262. This applies as well to 8 A-1741-15T1 credibility findings by the trial judge. Locurto, 157 N.J. at 470; State v. Barone, 147 N.J. 599, 615 (1998). However, the trial court's legal interpretations will be reviewed de novo. Hubbard, 222 N.J. at 263. The United States and New Jersey Constitution protect individuals against unreasonable searches and seizures. U.S. Const., amend IV; N.J. Const., art. I, ¶ 7. "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 the search falls within one of the well-recognized exceptions to the warrant requirement. State v. Maryland, 167 N.J. 471, 482 (2001) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). The community-caretaking doctrine is such an exception when animated by exigent circumstances. State v. Edmonds, 211 N.J. 117, 141 (2012) (citing Cady v. Dombrowski, 413 U.S. 433, 441 (1973)). Consent is another. Bustamonte, 412 U.S. at 219; State v. Lamb, 218 N.J. 300, 315 (2014). II. Defendant argues the trial court's reliance on the community- caretaking doctrine was in error, as this doctrine has been subsumed within the emergency-aid doctrine. He asserts there was 9 A-1741-15T1 no genuine and imminent danger to the safety or welfare of another to justify the warrantless search under this exception. Under the community-caretaking doctrine, police act "not in their law enforcement or criminal investigatory role," but rather in "a wide range of social services, such as aiding those in danger of harm, preserving property, and creat[ing] and maintain[ing] a feeling of security in the community." State v. Bogan, 200 N.J. 61, 73 (2009) (citations omitted); Edmonds, 211 N.J. at 141. Our Supreme Court has held that the community-caretaking doctrine, standing alone and without additional exigency or consent, is insufficient to allow a warrantless search of a home. State v. Wright, 221 N.J. 456, 468 (2015) (citing State v. Vargas, 213 N.J. 301, 325 (2013)). Thus the community-caretaking doctrine has merged, to some extent, with the emergency-aid doctrine. See State v. Mordente, 444 N.J. Super. 393, 397-98 (2016). Under the emergency-aid doctrine, a warrantless search is permitted when two requirements are met: (1) the existence of an emergency, viewed objectively; and (2) "a reasonable nexus between the search and the emergency." Edmonds, 211 N.J. at 132 (quoting State v. Frankel, 179 N.J. 586, 600 (2004)). Under the first element, "the test is whether the evidence would have led a 'prudent and reasonable officer' to perceive an immediate need to take action in order to prevent death or to 10 A-1741-15T1 protect against serious injury to persons or property." State v. Cassidy, 179 N.J. 150, 163 (2004) (quoting 3 Wayne LaFave, Search & Seizure § 6.6(a) at 391 (1996)). The officer must only possess "an objectively reasonable basis to believe--not certitude--that there is a danger and need for prompt action." Frankel, 179 N.J. at 599 (citing Cassidy, 179 N.J. at 161). The actual non-existence of the perceived danger "does not invalidate the reasonableness of the decision to act at the time." Ibid. Here, earlier on April 22, 2014, the police transferred defendant to the hospital under a psychological watch, because the police and his family "felt he was a danger to himself and others." Subsequently, the police received "several texts and emails from family members . . . [defendant] was sending out about hurting himself and hurting . . . other people." They also received a phone call believed to be from a family member who was concerned about the safety of defendant's family and the community. Through these interactions, the police formed the belief defendant owned weapons. Based on this information, the police responded to defendant's home. The sergeant testified "based on the totality of the circumstances, . . . having seen the emails sent by [defendant] to the family members. Knowing the condition he was in . . . truly felt [defendant] was a danger to the community." 11 A-1741-15T1 The sergeant noted, "the house [was] literally 100 feet from a school yard", adding to the urgency of the circumstances. Because the sergeant did not know when defendant would be able to leave the hospital and return to the home, he felt it was necessary for the safety of the public to remove the weapons immediately. The trial judge found the sergeant was a credible witness, and we defer to the judge's credibility determinations. Locurto, 157 N.J. at 470. The police formed an objectively reasonable perception there was an immediate danger defendant could return home from the hospital, take the alleged weapons, and hurt himself, someone in his family, or someone in the community. Whether or not defendant was in fact about to arrive at the home at any minute is irrelevant, as long as the police objectively believed it was so. See Wayne v. United States, 318 F.2d 205, 212 (D.C. Cir. 1963) ("[A] warrant is not required to break down a door to enter a burning home to rescue occupants or extinguish a fire, to prevent a shooting or to bring emergency aid to an injured person.") Next, "the scope of the search under the emergency aid exception is limited to the reasons and objectives that prompted the search in the first place." Frankel, 179 N.J. at 599 (2004) (citing Terry v. Ohio, 392 U.S. 1, 19-20 (1968)). Here, the only places searched by police were those belonging to defendant. They searched his kitchenette and his bedroom, and did not intrude into 12 A-1741-15T1 other bedrooms or living areas in the home, nor into places where a gun could not reasonably be found. Thus, there was a reasonable nexus between the search and the perceived emergency. Based on the foregoing, and in particular the credibility findings, we can find no basis to say that the trial judge abused his discretion in determining that the community-caretaking doctrine applied to permit the warrantless search. III. Defendant further argues that the trial judge erred by finding that the warrantless search permissible due to the consent given by the grandfather and the aunt, because the consent was not valid. Alternatively, he argues that the grandfather and the aunt did not have actual or apparent authority to consent to the search of defendant's living areas. "[A]ny consent given by an individual to a police officer to conduct a warrantless search must be given knowingly and voluntarily." State v. Carty, 170 N.J. 632, 639 (2002); State v. Elders, 192 N.J. 224, 236 (2007); State v. Domicz, 188 N.J. 285, 307 (2006). In order for consent to a warrantless search to be voluntary, the State must show that the person involved knew he or she "had a choice in the matter." State v. Johnson, 68 N.J. 349, 354 (1975). However, the State does not need to prove that the person was informed of his or her right to refuse consent. 13 A-1741-15T1 Ibid.; State v. Douglas, 204 N.J. Super. 265, 277 (App. Div. 1985). Therefore, the question is whether the consent was "the result of duress or coercion, express or implied." Lamb, 218 N.J. at 315 (citations omitted). The sergeant was at the home at the behest of defendant's family, he identified himself as police, and was invited inside. While in the home, the sergeant asked the family for permission to search for the weapons he perceived to be in the home. The aunt and the grandfather granted their permission, and even walked upstairs with the sergeant to assist in the search. While it is undisputed the sergeant did not affirmatively inform the aunt and the grandfather they could refuse consent, under the totality of the circumstances, there is no indication that they would have refused had he done so. See State v. Brown, 282 N.J. Super. 538, 548 (App. Div. 1995). The circumstances present here do not demonstrate the consent was the result of duress or coercion, and we find no basis to conclude the judge's finding that the sergeant obtained valid consent from the family was in error or an abuse of discretion. Valid consent to search "may be obtained from one other than the accused . . . so long as the consenting third party has the authority to bind the accused." Douglas, 204 N.J. Super. at 276; State v. Suazo, 133 N.J. 315, 320 (1993). 14 A-1741-15T1 "A co-habitant who possesses common authority over or has a sufficient relationship to the premises or effects sought to be inspected may voluntarily consent to a lawful search." Lamb, 218 N.J. at 315 (citing United States v. Matlock, 415 U.S. 164, 171 (1974)). These third parties may have actual authority to consent "based on their common use of the space searched." State v. Cushing, 226 N.J. 187, 200 (2016) (citing Suazo, 133 N.J. at 319- 20). Here, the grandfather gave third-party consent to the search by the police. Most importantly, he informed the police he was the homeowner, and explicitly gave the sergeant permission to search the kitchenette and bedroom utilized by defendant. The sergeant testified his view into the kitchenette and the bedroom was unobstructed. Additionally, both the aunt and the grandfather spent time in defendant's living areas, and defendant would often use the downstairs kitchen with them. Furthermore, since the grandfather testified the gun safe was his, and the shotgun inside was his for hunting, the consent given to search the safe does not need to satisfy the third-party test. Based on the sergeant's credible testimony, the grandfather, as homeowner with both common authority and sufficient relationship to the premises to be searched, had actual authority to consent to a search of the rooms and the gun safe. 15 A-1741-15T1 Moreover, even if the grandfather did not have actual authority to consent, he had apparent authority. Apparent authority "arises when a third party (1) does not possess actual authority to consent but appears to have such authority and (2) the law enforcement officer reasonably relied, from an objective perspective, on that appearance of authority." Cushing, 226 N.J. at 199-200 (citing Ill. v. Rodriguez, 497 U.S. 177, 185-89 (1990)). "The question is 'whether the officer's belief that the third party had the authority to consent was objectively reasonable in view of the facts and circumstances known at the time of the search.'" State v. Coles, 218 N.J. 322, 340 (2014) (quoting Suazo, 133 N.J. at 320). The sergeant learned at the scene that the grandfather was the homeowner, who readily agreed to permit him to conduct a search. In light of the facts and circumstances known at the time of the search, the sergeant's belief the grandfather had actual authority to consent to the search was objectively reasonable. Affirmed. 16 A-1741-15T1

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Docket No.: a1807-16
Decided: 2018-07-09
Caption: IN THE MATTER OF THE CIVIL COMMITMENT OF I.O.
Status: unpublished
Summary:
PER CURIAM I.O. appeals from the October 26, 2016 order of the Law Division, continuing his commitment to the Special Treatment Unit (STU), the secure facility designated for the custody, care and treatment of sexually violent predators pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. For the reasons that follow, we affirm. At the time of his review hearing, I.O. was approximately fifty-eight years old. The predicate offenses for which I.O. was committed to the STU arose out of his 1992 sexual assault upon an eleven-year-old girl that he kissed and fondled on her buttocks. On another occasion, I.O. exposed himself to the victim and her friends. At the time he committed these offenses, I.O. was out on bail in connection with pending charges from 1991 for two counts of sexual assault, criminal sexual contact, and aggravated sexual assault committed upon a seventeen-year-old and a six-year-old. Following his convictions, he received a seventeen-year aggregate sentence and I.O. was committed to the Adult Diagnostic Treatment Center (ADTC). In 2006, he was committed to the STU, after he had been terminated from the ADTC and transferred to state prison, and his commitment continued following periodic review hearings. See In re Civil Commitment of I.O., No. A-4270-09 (App. Div. Sept. 17, 2010). The most recent review, which is the subject of this appeal, was conducted by Judge Philip M. Freedman on October 18 and October 26, 2016. At the hearing, the State relied upon the expert testimony of psychiatrist Dr. Indra Kumar Cidambi and psychologist Dr. Rosemarie Vala Stewart, who is a member of the STU's Treatment 2 A-1807-16T5 Progress Review Committee (TPRC). Both experts opined that I.O.'s risk to sexually reoffend remained high. After interviewing I.O. and reviewing previous psychiatric evaluations, STU treatment records, and related documents, Stewart and Cidambi prepared reports, which were admitted into evidence. Various treatment notes and other records were also admitted into evidence. I.O. also testified at the hearing. Cidambi concluded that I.O. met the criteria of a sexually violent predator and was "highly likely to sexually re-offend if not confined in a secure facility for control, care and treatment" because he has not mitigated his risk. Based on I.O.'s "index offense and his admission to other uncharged offenses, [and his] report[] that he was still attracted to young children[,]" Cidambi diagnosed him with pedophilic disorder, sexually attracted to females, non-exclusive type. She testified that she also diagnosed I.O. with other specified paraphilic disorder, non-consent, "[f]or sexually offending against victims who cannot consent[.]" She testified that I.O. "meet[s] the criteria for frotteuristic disorder" because he has "a history of rubbing against adult women in a crowded area, say a subway station, and touching and rubbing against non-consenting persons[.]" According to Cidambi, I.O. also has traits of antisocial personality disorder based upon his history of "sexually 3 A-1807-16T5 offending" and his "fail[ure] to conform to social norms[,] . . . disregard for the safety of others, law-breaking behavior, [and] impulsive [behavior], [while showing] no remorse." She pointed to I.O.'s infractions while at the STU, which included I.O. being "placed on [modified activities program status] several times[,] . . . one time for [making] threat[s] and then he has had pornographic material in his possession." She stated that having traits of antisocial personality disorder combined with the sexual pathologies she diagnosed I.O. with "increases the risk of reoffending. And it also provides for impulsivity and disregard for the safety of others[.]" Further, Cidambi found evidence of I.O. having cocaine use disorder in a controlled environment, opioid use disorder in a controlled environment, and cannabis use disorder in a controlled environment based upon his history of substance abuse. She testified that adding the substance abuse problems to I.O.'s already increased risk, "definitely increases by increasing the disability -- disinhability [sic] and the impulsivity and makes them take -- make poor judgment and reoffend." According to Cidambi, these conditions do not spontaneously remit, and it is only "through treatment [that] one can learn to control the impulses caused by these disorders[.]" 4 A-1807-16T5 She gave I.O. a score of five on the Static-99R,1 indicating an above average risk to sexually reoffend. However, she opined that his "score underestimates his current risk to sexually re- offend[.]" She concluded that there was a "high risk" that I.O. would reoffend, based upon his "lack of behavioral control," lack of progress in treatment, and delusion "about the offenses that he has done" to the point that "he doesn’t consider himself as a sex offender. And he still has this arousal towards young girls[.]" Stewart testified that she along with the other members of the TPRC that evaluated I.O. unanimously recommended in their report that I.O. "remain in phase two of treatment[,]" because although I.O. "does attend his process group [and] does attempt modules, . . . he struggles to address core issues." She noted the several modules and treatment groups I.O. has failed, or had to repeat, as well as the ones he withdrew from. 1 "The Static-99 is an actuarial test used to estimate the probability of sexually violent recidivism in adult males previously convicted of sexually violent offenses." In re Civil Commitment of R.F., 217 N.J. 152, 164 n.9 (2014) (citation omitted). Our Supreme "Court has explained that actuarial information, including the Static-99, is 'simply a factor to consider, weigh, or even reject, when engaging in the necessary factfinding under the SVPA.'" Ibid. (quoting In re Commitment of R.S., 173 N.J. 134, 137 (2002)). 5 A-1807-16T5 Describing her interview with I.O., Stewart stated, "There was a significant amount of hostility . . . . [I.O.] talked about anger at the system, anger at the institution, anger at this writer for previous evaluations, talking about . . . wanting to shoot at -- shoot everyone." However, according to Stewart, I.O. "actually said . . . that he is here because he doesn’t know if he would offend if he would leave." In discussing his plans if he were released, I.O. told Stewart that he intended to leave the country to go to Venezuela, which according to Stewart, would prevent any possible "mitigation of risk" that supervision or any conditions placed on his discharge would provide. Stewart diagnosed I.O. with "[p]edophilic [d]isorder (sexually attracted to females, nonexclusive type)[, o]ther [s]pecified [p]araphilic [d]isorder (non-consent and hebephillia)[, f]rotteuristic [d]isorder (in a controlled environment)[, o]ther [s]pecified [p]ersonality [d]isorder (antisocial, paranoid, and borderline features)[,]" as well as substance abuse disorders. She testified that I.O.'s "risk is exacerbated with the personality diagnosis, especially including antisocial features, because a person doesn’t feel constrained by concern for others, by the law, by authority, and . . . feels freer and without conscience to act on their urges and impulses." She added that his substance abuse "can disinhibit [him] and it 6 A-1807-16T5 can impair [his] judgment[,]" which worsens the problem. Stewart concluded that I.O. did not have "enough treatment to adequately be able to control [his] impulses[,]" and that "these conditions [do not] spontaneously remit[.]" Therefore, "if not recommitted to the STU for further treatment[,]" she found I.O.'s "risk to sexually reoffend" to be "high." I.O. testified2 that his sexual offenses were attributable to a head injury that he suffered in a motor vehicle accident. He denied having any sexual contact with a six-year-old and explained that he only pled guilty to that offense because of the ineffective assistance of his counsel. He admitted to having sex with a seventeen-year-old, but stated that she initiated the interaction. I.O. then spoke at length regarding his sexual offenses against an eleven-year-old, claiming that he was falsely accused of his offenses against her, despite having pled guilty to them as well. In an oral decision placed on the record on October 26, 2016, Judge Freedman detailed I.O.'s prior criminal history and events since his original admission to the STU, recounted the testimony before him, and detailed I.O.'s treatment record at the STU. He found that I.O. "version [of the events resulting in his convictions] was not credible" because "[h]e pled guilty. He 2 I.O. began his testimony by requesting a jury trial, which the judge denied. 7 A-1807-16T5 admitted to the police, [and] gave a detailed statement, and his story is incredible[.]" According to the judge, I.O. had also previously "made many admissions over the years consistent with his offending in these cases." The judge noted that he found both of the State's experts to be credible. After articulating the applicable legal principles, Judge Freedman determined that there was clear and convincing evidence that I.O. has been convicted of sexually violent offenses, which bring him within the purview of the SVPA, and that he suffer[s] from . . . mental abnormalities in the form of pedophilia and a paraphilia, as well as a personality disorder that, in combination, these affect him emotionally, cognitively and volitionally to such a degree as to predispose him to engage in acts of sexual violence, as his record and his many admissions that were relied on by these doctors show, and that, if released, he would have serious difficulty controlling his sexually violent behavior and will in the reasonably foreseeable future . . . be highly likely to engage in acts of sexual violence. On the same date, Judge Freedman entered a memorializing order continuing I.O.'s commitment, and this appeal followed. On appeal,3 I.O.'s arguments are twofold. He contends that he "should have been granted a jury trial and second, that the 3 By agreement of the parties and with the permission of the court, the appeal was argued without briefs. We summarize the points raised by appellant based upon the presentation at oral argument. 8 A-1807-16T5 State failed to meet its burden that he continued to be highly likely to re-offend as a sexually violent predator" because "the State’s evaluators and the [trial judge] in turn failed to consider his good behavior in the institution and the severity of his medical condition as it impacts on his likelihood to re-offend." We conclude from our review that I.O.'s arguments "are without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(1)(E). Suffice it to say that we have previously determined that there is no right to a jury trial in a SVPA commitment hearing, see In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607 (App. Div. 2003), and I.O. has not persuaded us to abandon our precedent. Turning to I.O.'s second contention, and considering our "extremely narrow" scope of review, which requires that we give "special deference" to a trial judge's determinations in these matters, R.F., 217 N.J. at 174 (citations omitted), we discern no "clear mistake[,]" id. at 175 (citations omitted), in Judge Freedman's determination that the State proved by clear and convincing evidence that I.O. suffered from a mental abnormality or personality disorder that predisposed him to sexual violence and warranted his commitment. We affirm substantially for the reasons expressed by Judge Freedman in his thorough oral decision. Affirmed. 9 A-1807-16T5

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Docket No.: a5082-16
Decided: 2018-07-09
Caption: CRAIG HELFGOTT v. JOSEPH KONOPKA FUNERAL HOME LLC
Status: unpublished
Summary:
PER CURIAM Plaintiff Craig Helfgott appeals from an order of judgment entered by the trial court on June 6, 2017, and an order dated July 7, 2017, which denied his motion for a new trial or, alternatively, for additur. We affirm. I. Plaintiff filed a complaint against Joseph Konopka Funeral Home, LLC (JKFH), alleging that on January 10, 2014, he suffered severe and permanent injuries when he slipped and fell on the sidewalk abutting certain property on Palisade Avenue in North Bergen. Plaintiff later filed an amended complaint, naming Mank Realty, LLC (Mank) as an additional defendant. Plaintiff alleged that JKFH and Mank (collectively, defendants) were negligent in failing to inspect and maintain the subject sidewalk free of any dangerous conditions, including accumulated snow and ice. At trial, plaintiff testified that on January 10, 2014, while walking on the sidewalk adjacent to the JFKH property, he slipped and fell on the icy pavement and injured his ankle. Police responded to the scene, and plaintiff was transported to a medical center. The following day, plaintiff underwent surgical open reduction with internal fixation to his right ankle. The surgeon inserted an eight-hole metal plate with eight screws. Plaintiff was thirty-six years old at the time. 2 A-5082-16T3 Plaintiff remained at home and was non-weight bearing for about a month. In that time, plaintiff only took one prescribed medicine, Vicodin, for pain. Plaintiff remained out of work until mid-February 2014. He began physical therapy and continued to be non-weight bearing except during physical therapy. He was on crutches through February and March 2014. In April 2014, plaintiff started to place weight on his injured ankle when he was not in physical therapy. Initially, plaintiff used a "walking boot," but he removed the boot when he went to sleep. He testified that he had pain while trying to sleep because he had to elevate his foot to keep it from swelling. On March 28, 2014, plaintiff underwent a second surgical procedure to remove two screws from his ankle. After the second surgery, plaintiff was able to flex his foot. He had physical therapy three times a week for sessions that lasted an hour and a half. Plaintiff continued physical therapy until late May 2014. He also performed certain exercises at home. Plaintiff testified that he had made "a decent recovery," but his ankle was not fully recovered. He "had a fair bit of flexibility back," but his ankle still got fatigued, and at those times, the ankle did not feel stable. He was still experiencing pain. 3 A-5082-16T3 Plaintiff said that in July 2014, members of his family noticed he had an irregular gait. His right foot was "lagging a little bit." After receiving an MRI, his doctor said his foot was "pronating," which is like "tilting." At the doctor's suggestion, plaintiff obtained orthotics, which are orthopedic inserts. At the time of trial, plaintiff was still using the orthotics. Plaintiff described his complaints. He has regular stiffness in his ankle when he wakes up and at the end of the day. During the day, plaintiff's ankle stiffens up if he does not flex and exercise it regularly. Plaintiff said he is not able to walk as much as he used to, and if he walks a lot, his foot gets tired and starts to hurt. Plaintiff admitted, however, that he did "a fair bit of walking" on a recent vacation. He told his doctor that during the vacation, he walked up to twelve miles each day, but had pain afterwards. During his deposition, plaintiff said he walked a "decent amount" on that trip. Plaintiff also testified that he has difficulty running. Although his gait has evened out, his right foot lags when he attempts to run. Plaintiff told his doctor that after he runs, his ankle is sore. Plaintiff described the pain as a two out of ten, with one the lowest amount of pain and ten the highest. 4 A-5082-16T3 Plaintiff stated that his ankle hurts a lot when he climbs steep hills, and he is not able to go hiking. Plaintiff said that after the screws were removed, he has not done any hiking. However, at his deposition, plaintiff testified about climbing in a hilly, wooded area, but he insisted he had not been talking about hiking. Plaintiff testified that the physical therapy had helped, and by mid-May 2014, he had recovered to the extent expected. Plaintiff did not feel any pain while he was testifying, but he said he feels pain "underneath the ankle bone on the inside." At his deposition, plaintiff did not specifically identify the place where he feels pain. Plaintiff testified that he feels pain generally in his ankle. He takes over-the-counter medication, specifically Advil, "maybe a couple [of] times a week," to help with the soreness. He stated that his ankle still is stiff and does not "flex up and down." Plaintiff was asked the last time he saw a doctor for his ankle. He could not recall, but testified he saw a doctor in January 2015. He also testified he may have seen a doctor once since that time. According to plaintiff, the doctor told him he could not do anything more for him. Dr. Sean Lager, an orthopedic surgeon, testified for plaintiff. Dr. Lager diagnosed plaintiff with: (1) status post- right ankle fracture of the lateral malleolus and dislocation; (2) 5 A-5082-16T3 status post-open reduction with internal fixation of the right lateral malleolus and syndesmosis; (3) status post-removal of the right ankle syndesmotic hardware; (4) posterior tibial tendinitis and pronation; and (5) injury to the peroneal tendon and deltoid ligament. Dr. Lager testified that plaintiff had suffered "a high energy injury." He said it was as though the "energy [had] exploded" and "a small bomb" had gone off. He stated that the bone that sits at the bottom of the ankle "slammed" into the tibia. Dr. Lager further testified that in April 2015, plaintiff had an x-ray, which showed osteoarthritis in the ankle joint. The doctor stated that the arthritis would worsen as plaintiff ages. He opined to a reasonable degree of medical probability that plaintiff's injuries are permanent. He said plaintiff's future prognosis included three options: (1) an ankle fusion; (2) total ankle replacement; or (3) continued conservative treatment. Dr. Lager acknowledged that when plaintiff returned to see him on February 26, 2014, he only had occasional soreness after therapy. Plaintiff reported that the pain was a one out of ten. Plaintiff also had some tenderness when his incision was touched. Plaintiff returned to see Dr. Lager on May 27, 2014, and he was full weight-bearing. On July 8, 2014, plaintiff also was full weight-bearing, but he complained of some difficulty with running and stiffness. He said the pain in his ankle was a two out of ten. 6 A-5082-16T3 The doctor recommended an anti-inflammatory, but he was unsure whether plaintiff followed his recommendation. Dr. Lager noted that on July 29, 2014, plaintiff complained of right ankle pain, especially after a lot of activity. Plaintiff did not experience pain when the doctor pushed on the right deltoid ligament. According to the doctor, the deltoid ligament was stretched out and the ankle or foot was more pronated. The doctors recommended orthotics to balance the ankle so plaintiff would be anatomically correct while walking. Plaintiff obtained orthotics shortly thereafter. Dr. Lager also discussed the report of plaintiff's physical examination, which another doctor performed on September 15, 2016. The report indicated that plaintiff had no swelling, bruising, asymmetries, or deformities in the ankle. The examination report indicated that plaintiff reported no pain to his ankle when it was pressed or squeezed. He had a full range of motion. The examination report noted that plaintiff had taken an extended vacation, during which he walked up to twelve miles each day. Plaintiff reported he had pain afterwards, but at the time of the examination, he was pain-free. Plaintiff was diagnosed with a deltoid ligament sprain. Dr. Lager testified that this meant the ligament "likely healed in with some scar tissue," but he did not think it was functioning the way it was supposed to function. 7 A-5082-16T3 Dr. Lager noted that as of March 31, 2016, plaintiff was not taking any pain medications. Plaintiff reported pain, stiffness, and soreness. He was taking Advil, and said the pain was a one or two out of ten. In the report, the doctor wrote that plaintiff would probably never be one hundred percent, "but there is medical treatment he may be able to [have] in the future that could help with some of [his] symptomatology." Defendants presented testimony from Dr. Charles Carozza, who is also an orthopedic surgeon. He testified that plaintiff had suffered a permanent injury, and the plate and the screws are permanently in plaintiff's ankle. Dr. Carozza said plaintiff's injuries had resulted in residual disability, meaning a functional impairment to the ankle that is "going to last." Dr. Carozza performed a physical examination of plaintiff on May 31, 2016. He stated that plaintiff had no apparent distress, and he walked with a normal gait. The doctor said this was a good indication that plaintiff did not have any pain. He noted that plaintiff reported he occasionally feels some medial pain or palpation over a tendon, rather than the ankle itself. Dr. Carozza found that plaintiff had some discomfort in the posterior tibialis tendon. Dr. Carozza also noted that he found plaintiff had no real discomfort over the medial or lateral operative site. The doctor 8 A-5082-16T3 did not feel any screw heads; they were buried in place. Plaintiff had full "dorsiflexion, which means he could cock his foot all the way back up." Plaintiff had full "plantarflexion," which means he "could put his foot down like a ballerina." Plaintiff also had full "inversion" and "eversion." There was no pain on all range of motion. The doctor found no "ligamentous [in]stability," and he found no "effusion of the ankle," or "actual fluid in the joint." The doctor explained that effusion is an early sign of post-traumatic osteoarthritis. Dr. Carozza opined that plaintiff did not suffer a tear of the peroneal tendon. In his examination, he saw no indication that plaintiff's deltoid ligament was attenuated or stretched. He testified that plaintiff had an excellent surgical procedure and an excellent result. Although he said plaintiff might develop osteoarthritis, Dr. Carozza saw no sign that plaintiff was developing that condition. Dr. Carozza noted that arthritis is not always caused by trauma. Dr. Carozza further testified that plaintiff might not need fusion surgery. His condition could worsen, but he could also be healthy and have the same complaints he had at that time. There were no signs of a significant loss of motion, and the muscle tone was good. Plaintiff has flat feet, but "that's the way he's made." 9 A-5082-16T3 The doctor acknowledged that plaintiff had some scarring from the surgery, which was minor. Dr. Carozza opined to a reasonable degree of medical certainty that plaintiff has some mild, subjective complaints. The only positive finding was an incision and some circumference enlargement of the ankle. He said plaintiff has reached maximum medical improvement from treatment, and further treatment is not necessary. He opined that plaintiff has a "minimal amount of residual disability." The jury found that defendants were negligent and solely responsible for plaintiff's fall and his resulting injury. The jury awarded plaintiff $35,000 for pain and suffering, disability, impairment, and loss of the enjoyment of life. The trial judge molded the verdict to include the stipulated amount of plaintiff's medical expenses, which totaled $56,725.85. Plaintiff thereafter filed a motion for a new trial or, in the alternative, additur. The trial judge denied the motion, and this appeal followed. II. On appeal, plaintiff argues that the jury's award of $35,000 is grossly inadequate, shocks the conscience, and results in a miscarriage of justice. He further argues that the judge's decision denying his motion for a new trial was based on the judge's 10 A-5082-16T3 mistaken belief that both medical experts did not find that he suffered a permanent injury. Plaintiff contends the trial judge should have granted his motion for a new trial or, in the alternative, additur. We disagree. "A jury's verdict, including an award of damages, is cloaked with a 'presumption of correctness.'" Cuevas v. Wentworth Grp., 226 N.J. 480, 501 (2016) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977)). That presumption is not overcome unless the party "clearly and convincingly" establishes that the award represents a "miscarriage of justice." Ibid. (quoting Baxter, 74 N.J. at 596); see also R. 4:49-1(a). Furthermore, in deciding whether to grant a motion for a new trial, the court must give "due regard to the opportunity of the jury to pass upon the credibility of the witnesses." Ibid. (quoting Ming Yu He v. Miller, 207 N.J. 230, 248 (2011)). Moreover, a jury's damages award should not be overturned unless it "shock[s] the judicial conscience." Id. at 503 (quoting Johnson v. Scaccetti, 192 N.J. 256, 281 (2007)). An award meets that standard if it is "wide of the mark," "pervaded by a sense of wrongness," and is "manifestly unjust." Ibid. (quoting Johnson, 192 N.J. at 281). The standard is "objective in nature and transcends any individual judge's personal experiences." Ibid. 11 A-5082-16T3 It is well-established that in deciding a motion for a new trial under Rule 4:49-1(a), the judge may not substitute his judgment for that of the jury merely because he would have reached the opposite conclusion. . . . "[The trial judge must] canvass the record, not to balance the persuasiveness of the evidence on one side as against the other, but to determine whether reasonable minds might accept the evidence as adequate to support the jury verdict. . . ." [T]he trial judge takes into account, not only tangible factors relative to the proofs as shown by the record, but also appropriate matters of credibility, [which are] peculiarly within the jury's domain, so-called "demeanor evidence," and intangible "feel of the case" which [the judge] has gained by presiding over the trial. [Dolson v. Anastasia, 55 N.J. 2, 6 (1969).] The standard of review for determining whether a damages award shocks the judicial conscience is the same for trial and appellate courts. Cuevas, 226 N.J. at 501. However, in reviewing the trial court's determination, "an appellate court must pay some deference to a trial judge's 'feel of the case.'" Ibid. (quoting Johnson, 192 N.J. at 282). Here, the trial judge determined that the jury's verdict did not shock the judicial conscience and was not a miscarriage of justice. In the written statement appended to the order denying the motion for a new trial or additur, the judge wrote that the jury had the right to reject the credibility of any fact or expert 12 A-5082-16T3 witness and to accord the trial testimony whatever weight it deemed appropriate. The judge noted that his role was not to second-guess the jury's credibility assessments, or weigh the persuasiveness of the evidence, but rather to determine whether a reasonable jury could accept the evidence presented as support for its verdict. The judge found that there was no evidence the jury's verdict was the product of misunderstanding, bias, or prejudice. The record supports the judge's determination that plaintiff did not meet the standard under Rule 4:49-1(a) for a new trial. He did not "clearly and convincingly" establish the damages award was "a miscarriage of justice." Ibid. Plaintiff notes that both medical experts testified that he has sustained a permanent injury. However, the experts disagreed regarding the impact of the injury. As we have explained, Dr. Carozza testified that when he examined plaintiff, he found plaintiff had a normal gait. There were no lingering abnormalities with the ankle, which was a good indication plaintiff was not suffering any pain. According to Dr. Carozza, plaintiff had full range of motion with no pain. Plaintiff's expert, Dr. Lager, also testified that in September 2016, plaintiff had full range of motion. Plaintiff had some scarring from the surgery, but it was minor. Furthermore, based on plaintiff's testimony, the jury could reasonably find that plaintiff did not have a substantial 13 A-5082-16T3 disability or impairment, and the injury did not have a substantial adverse impact on his ability to engage in his normal activities. Plaintiff initially denied that he could go hiking, but at his deposition, he testified about walking up hills. He also testified that after the accident, he went on an extended vacation during which he walked up to twelve miles each day. The record therefore supports the trial judge's determination that the jury could reasonably find, based on the testimony presented and its assessment of the credibility of the witnesses, that a damages award of $35,000 was sufficient to compensate plaintiff for his pain and suffering, disability, impairment, and loss of the enjoyment of life. The judge also correctly determined that because plaintiff did not meet the standard for a new trial under Rule 4:49-1(a), additur could not be considered. See Ming Yu He, 207 N.J. at 248; Caldwell v. Haynes, 136 N.J. 422, 443 (1994). See also Pressler & Verniero, Current N.J. Court Rules, cmt. 3 on R. 4:49-1(a) (2018) (noting that "neither additur nor remittitur can be ordered unless a new trial, at least on the damages issue, would be warranted"). Plaintiff argues that in denying his motion for a new trial, the judge erroneously stated that both medical experts had testified that his ankle repair was successful and caused no "lasting impact" upon him. Plaintiff correctly notes that both 14 A-5082-16T3 medical experts testified that plaintiff had sustained an injury that was permanent. However, based on plaintiff's testimony and the testimony of both doctors, the jury could reasonably find that although the injury had a "lasting impact" upon plaintiff, the impact was minimal and warranted an award of $35,000 for pain and suffering, disability, impairment, and the loss of the enjoyment of life. Affirmed. 15 A-5082-16T3

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Docket No.: a5245-15
Decided: 2018-07-09
Caption: STATE OF NEW JERSEY v. MELVIN K. LEWIS, III
Status: unpublished
Summary:
PER CURIAM Tried by a jury, defendant Melvin K. Lewis, III, was convicted of certain persons not to have weapons, N.J.S.A. 2C:39-7(b). On March 18, 2016, the trial judge commenced defendant's sentencing hearing. Defendant requested a three-day delay for medical reasons. He failed to return on the scheduled date, and thus was not sentenced until July 15, 2016, when the judge imposed the minimum five-year without parole term of imprisonment called for by the statute. Defendant appeals and we affirm. At trial, Penns Grove Police Department Corporal Joseph Schultz testified he was dispatched to defendant's home on December 21, 2014, on a call regarding an attempted burglary. Schultz approached the residence as defendant was walking out onto the porch. Both men looked down and simultaneously saw a semi- automatic handgun on the ground in front of the doorway. A magazine lay alongside. The officer asked defendant "what's going on, what happened[,]" and defendant responded that someone had tried to break into his home. While the officer secured the weapon, defendant told Schultz he believed the person intended to kill him. Defendant explained that when he ignored the sound of the doorbell, the would-be intruder kicked and banged on the door. He heard a loud noise, assuming it was a gunshot. The officer saw a 2 A-5245-15T3 small hole in the door consistent with a bullet and, a few minutes later, found a bullet lying in close proximity to the location of the handgun. County Prosecutor's Investigator Jessica Venello responded immediately to Schultz's call, and defendant and the other adult present in the home when the incident occurred, defendant's girlfriend, drove to the police station to be interviewed. Venello began the taped interview by asking defendant what had happened. Defendant answered that he had a break-in at another property he owned, and when he returned home around 7:00 p.m., someone he did not know knocked and called out his name. Defendant told his girlfriend to go into the bedroom. Defendant added: "And all of a sudden, boom, boom, boom. The hole you see in the door is made by me. By a blank that saved my life. I have the gun at the house. I shot a .38 revolver blank. That's the hole in the door." Defendant then heard someone say "oh shit," the sound of something dropping, and running footsteps. Meanwhile, defendant's girlfriend called 911. Defendant was reluctant to tell police "but that blank saved my life. That blank saved my life. Made them drop their gun." He told the officers that he was not supposed to be in possession of firearms. Defendant said he acquired the gun two days earlier because he heard his life was in danger. He went on to name certain 3 A-5245-15T3 individuals he had confronted because they had been stealing from him. Defendant suspected they were planning to retaliate by putting out "a hit." The officers continued to interview defendant about the break-in at his other property and the alleged contract on his life. Defendant repeated his description of the shooting incident, and provided additional details regarding how he learned about the threat. When defendant was driven back to his home from the police station, he was seated in the back of a police car but not handcuffed. Upon arrival, he pointed out the red bag containing a black revolver hidden beneath a living room couch. The gun held three bullets and one empty casing. Later on that evening, the officers ran a criminal history check and verified that defendant had been convicted of predicate offenses that barred him from possession of a firearm. The State presented essentially the same testimony during the pretrial motion to suppress evidence. In his October 2, 2015 motion decision, Judge Benjamin C. Telsey described defendant during the taped interview as cooperative and having given "a very conversational statement." Defendant volunteered information regarding the circumstances that had led to the attack, and volunteered information about the weapon he had obtained two days earlier. Defendant did not hesitate in explaining his possession 4 A-5245-15T3 of the weapon and suggested he take the officers back to his home so they could seize it. When defendant was interviewed, he was not under arrest, handcuffed, or had any reason to believe he was not free to leave. Obviously, defendant knew he was a person not to possess because he told the officers——rather than the officers learning about defendant's record after additional investigation. Defendant may not have realized he was confessing to a crime because the bullets were blanks, but other than that, "he knew exactly what he was doing and what he was showing the police." He brought the officers into his home while being well "aware that he could speak up, stop the search, or stop what was happening. But, that wasn't even his intent at that point. Clearly, his intent was to cooperate with this investigation." The court further found that a defendant who volunteers evidence does so at his own peril. Accordingly, the court denied the motion to suppress the weapon. On appeal, defendant raises the following points for our consideration. POINT I IT WAS ERROR TO DENY THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE. POINT II IT WAS PLAIN ERROR FOR THE TRIAL COURT TO FAIL TO CHARGE THE JURY ON SELF-DEFENSE. (Not raised below). 5 A-5245-15T3 When reviewing motions to suppress, we uphold "the trial court's decision so long as [the factual] findings are supported by sufficient credible evidence in the record." State v. Rockford, 213 N.J. 424, 440 (2013) (quoting State v. Robinson, 200 N.J. 1, 15 (2009)). This fundamental principle has particular significance when the findings of the trial court are "substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case," even if we might have reached a different conclusion. State v. Elders, 192 N.J. 224, 244 (2007) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). "A trial court's findings should be disturbed only if they are so clearly mistaken 'that the interest of justice demands intervention and correction.'" Ibid. (quoting Johnson, 42 N.J. at 162). Under the Fourth Amendment of the United States Constitution and Article 1, Paragraph 7 of the New Jersey Constitution, a warrantless search is presumed to be invalid, and places upon the State the burden to prove that the search "falls within one of the few well-delineated exceptions to the warrant requirement." State v. Pineiro, 181 N.J. 13, 19 (2004) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)). Consent is a well-recognized exception to the Fourth Amendment's search warrant requirement. Schneckloth v. 6 A-5245-15T3 Bustamonte, 412 U.S. 218, 219 (1973). Consent searches have long been considered a "legitimate aspect of effective police activity." State v. Domicz, 188 N.J. 285, 305 (2006) (quoting Schneckloth, 412 U.S. at 228). A consent to search must be voluntary and knowing in nature, and the person giving consent must be advised of his right to refuse. State v. Johnson, 68 N.J. 349, 353-54 (1975). The State bears the burden of demonstrating the person giving consent knew he or she had a choice by clear and convincing evidence. Domicz, 188 N.J. at 309. The New Jersey Supreme Court recently reiterated the analysis courts must employ when assessing voluntariness that was first outlined in State v. King, 44 N.J. 346, 352-53 (1965): Factors potentially indicating coerced consent include: (1) that consent was made by an individual already arrested; (2) that consent was obtained despite a denial of guilt; (3) that consent was obtained only after the accused had refused initial requests for consent to search; (4) that consent was given where the subsequent search resulted in a seizure of contraband which the accused must have known would be discovered; [and] (5) that consent was given while the defendant was handcuffed. . . . Factors potentially indicating voluntariness of consent include: 7 A-5245-15T3 (1) that consent was given where the accused had reason to believe that the police would find no contraband; (2) that the defendant admitted his guilt before consent; [and] (3) that the defendant affirmatively assisted the police officers. [State v. Hagans, 233 N.J. 30, 39 (2018) (alterations in original) (citations omitted) (quoting King, 44 N.J. at 352-53).] Citing to King, the Hagans Court described the factors as "guideposts," and observed that the absence of one alone may be very consequential in one case while insignificant in another. Id. at 40. The voluntariness of the consent depends on "the totality of the particular circumstances of the case[,]" and each situation must rise or fall on its own facts. Ibid. (quoting King, 44 N.J. at 353). In this case, the State has readily met its burden. Police went to defendant's home to investigate an incident in which he was the victim, not a suspect. The information conveyed in the dispatch was confirmed when the officer and defendant simultaneously saw the weapon on the porch. Defendant drove himself and his girlfriend to the police station voluntarily in order to assist police in their investigation of the attempted break-in. During his taped interview, while still viewed as a victim and not a suspect, 8 A-5245-15T3 defendant explained that he had fired a revolver through the front door. Thus, defendant admitted his guilt before police even had any reason to suspect that he had committed a crime. His statements no doubt came as a surprise to the officers who were conducting the interview. Defendant, while on tape, offered to show police where he had hidden the weapon, and told them that he was a convicted person not permitted to possess firearms. Defendant acknowledged his guilt and provided police with the location of the evidence. None of the factors apply that would lead us to the conclusion defendant's consent was involuntary. He was not under arrest, was not handcuffed, faced no accusation, and was not asked for consent. The record therefore supports the judge's conclusion that defendant affirmatively volunteered the information that he had committed a crime and led the officers to the place where the weapon could be found. His decision was not coerced or involuntary. Therefore, defendant's motion to suppress was properly denied. Defendant also contends that it was "plain error" for the court to have failed to charge the jury under the theory that defendant acted in self-defense. We consider this argument to be so lacking in merit as to warrant little discussion in a written opinion. R. 2:11-3(e)(2). 9 A-5245-15T3 Defendant relies upon State v. Montalvo, 229 N.J. 300 (2017), in support of the argument. Montalvo, however, relates to a different statute. In Montalvo, defendant was charged with unlawful possession of a weapon, not possession of a weapon by a certain person. Id. at 307. Here, defendant does not dispute that he is a person prohibited from possession. See In re Wheeler, 433 N.J. Super. 560, 597-98 (App. Div. 2013) (citing District of Columbia v. Heller, 554 U.S. 570 (2008); McDonald v. City of Chicago, 561 U.S. 742 (2010)). That a person who has lost his right to arm himself by virtue of convictions can continue to be charged with the offense at issue here was a fundamental principle left intact by Heller and McDonald. All that is required under the pertinent statute is that a defendant has been previously found guilty of a predicate offense and was in possession of the firearm. See N.J.S.A 2C:39-7(b). The thrust of the statute is that mere possession by a convicted person violates the law. Thus, self-defense is not a defense to the charge, and no instruction was necessary. Affirmed. 10 A-5245-15T3

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Docket No.: a5310-16
Decided: 2018-07-09
Caption: T.R. v. P.F.
Status: unpublished
Summary:
PER CURIAM 1 We use initials to protect the parties' privacy interests. Plaintiff appeals from a July 12, 2017 order dismissing her domestic violence complaint and vacating the temporary restraining order (TRO) dated July 4, 2017 and the amended TRO dated July 10, 2017. We affirm. Plaintiff obtained the TROs based on a series of text messages sent by defendant from June 29 through July 3, 2017. The parties had a nearly three year dating relationship, which was tumultuous. During her trial testimony, plaintiff described the dating relationship as "on and off." According to plaintiff, "every time [defendant] gets mad, he'll send some very mean things and then I'll block [his messages]. And then he'll just get through to me somehow, and I'll forgive him and I'll go back. He'll buy me something. He'll say nice things." Plaintiff also told the judge that she had blocked defendant's texts "at least a hundred" times before June 29. Each time prior to June 29, plaintiff would remove the block on her phone and continue dating defendant. At trial, the judge heard testimony regarding an Instagram message in which plaintiff told defendant's ex-girlfriend how to manipulate defendant to make him angry so that defendant would then apologize and buy her gifts. In that message, plaintiff told defendant's ex-girlfriend "[y]ou have to play his game if [you] want[] his attention." 2 A-5310-16T3 Plaintiff also testified regarding two prior incidents of domestic violence. Immediately after one such incident, a tire slashing,2 plaintiff sent an overtly suggestive birthday card to defendant. In the birthday card, admitted as evidence during the trial, plaintiff expressed that defendant was "the greatest gift anyone could receive." In another described incident, during which defendant wrestled with plaintiff and grabbed her cellphone, plaintiff testified that defendant thereafter spent the night, the parties had consensual sex, and plaintiff never sought medical treatment or reported the incident. The text messages between June 29 and July 3, 2017, were admitted as evidence at trial. The tone and tenor of the messages were coarse and intended to harass plaintiff. Plaintiff testified that she felt threatened and scared by defendant's text messages sent during this time period. At the conclusion of the trial testimony, the judge issued an oral decision from the bench. The judge determined that defendant committed an act of domestic violence in accordance with the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 2 Defendant testified that plaintiff's tire was damaged by a broken beer bottle. However, because he was angry as a result of a fight with plaintiff, defendant told plaintiff that he had the tire slashed. 3 A-5310-16T3 to -35. Specifically, defendant admitted his texts constituted harassment, N.J.S.A. 2C:33-4(a) and (c). However, the judge found no evidence of a reasonable fear of threats to plaintiff's life, health, or safety to support the need for a final restraining order (FRO). The judge determined that both parties had "some issues with credibility." The judge found that the parties participated in a "heightened" form of "domestic contretemps." The judge's finding was based on the parties' trial testimony wherein each admitted to "playing the game." Because plaintiff testified that defendant's text messages prior to June 29 made her feel "upset," as opposed to feeling threatened as she did upon receiving defendant's messages after June 29, the judge examined the entirety of the parties' relationship. The judge found the parties had "an up and down kind of relationship" and that "this was their relationship for good reasons, for bad reasons, for no reasons." The judge concluded that plaintiff, overall, was "annoyed, troubled, upset" by defendant but was not "fearful of this defendant." The judge stated: They tried in my opinion to actually manipulate each other with their different forms of conduct. They each knew how to push each other's buttons. They each knew how to rise to the other one's level and as I said, I don't think that, while I totally disapprove of what was said here over those three or four 4 A-5310-16T3 days, I don't think it is sufficient to constitute the type of fear that [plaintiff] believes has been generated particularly given all of her testimony about this relationship over the course of time. In his amplification of reasons pursuant to R. 2:5-1(b), the judge wrote: the admitted acts of harassment were indicative of the ongoing tumultuous relationship that the parties had over a significant period of time as opposed to an escalation of harassing conduct by the [d]efendant that had arisen to the point that the element of fear was instilled in the [p]laintiff that caused her to seek the issuance of a [f]inal [r]estraining [o]rder to protect herself (and also her children). The judge found that the text messages from June 29 to July 3, 2017, leading to plaintiff's filing a TRO, "were not unlike the manner in which the parties conducted their on/off relationship over the course of approximately two years." On appeal, plaintiff contends that the judge improperly considered whether defendant would have to forfeit his weapon if an FRO was issued and misapplied the standard set forth in Silver v. Silver, 387 N.J. Super 112 (App. Div. 2006). Our review of a decision by a judge assigned to the Family Part is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). A family judge's findings should be affirmed if supported by "adequate, substantial, [and] credible evidence." Id. at 411-12 5 A-5310-16T3 (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. However, if a judge makes a discretionary decision under a legal misconception, we need not accord the usual deference. State v. Steele, 92 N.J. Super. 498, 507 (App. Div. 1966); see also Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008) (reversing where the court "ignores applicable standards"). We reject plaintiff's contention that the judge contemplated defendant's occupation as a police officer or the forfeiture of his weapons in deciding whether to issue an FRO. There is nothing in the record to indicate that the judge considered the potential seizure of defendant's duty weapon in reaching his determination. Plaintiff suggests we "infer" that the judge erroneously considered defendant's occupation as a police officer in rendering his decision. However, plaintiff proffers nothing more than improper conjecture and speculation in support of this argument, rather than competent evidence in the record. We also reject plaintiff's argument that the judge misapplied the standard in Silver. In determining whether to grant an FRO, the family court applies a two prong analysis. Silver, 387 N.J. Super. at 125-27. The first prong is proof of the commission of 6 A-5310-16T3 a predicate act in accordance with the PDVA. Id. at 125-26. The second prong is 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)). In accordance with Silver, "the guiding standard is whether a restraining order is necessary . . . to protect the victim from an immediate danger or to prevent further abuse." Silver, 387 N.J. Super. at 127. At issue in this case is whether plaintiff satisfied the second prong of Silver for the entry of an FRO. Family Part judges "have been specially trained to detect the difference between domestic violence and the more ordinary differences that arise between couples, and . . . [because of that expertise,] their findings are entitled to deference." J.D., 207 at 482. Consequently, we will not disturb the findings of a Family Part judge unless "they are so wholly insupportable as to result in a denial of justice." In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993) (quoting Rova Farms, 65 N.J. at 483-84). Here, we find that the evidence supports the judge's conclusion as to the second prong of the Silver analysis. Based on the testimony, the judge found that the on/off relationship of the parties over the course of nearly three years, the provoked fights by the parties in anticipation of subsequent gifts of 7 A-5310-16T3 affection, the "playing the game" behavior of both parties, and the "tumultuous" nature of the parties' relationship failed to support a determination that plaintiff required an FRO to protect her from danger or further abuse. Based on the evidence, we agree with the Family Part judge that plaintiff was not in immediate danger or at risk of further abuse. Affirmed. 8 A-5310-16T3

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Docket No.: a5611-15
Decided: 2018-07-09
Caption: WELLS FARGO BANK, N.A. v. MARCIA A. HARRIS
Status: unpublished
Summary:
PER CURIAM In this mortgage foreclosure case, defendant Marcia Harris appeals from (1) the trial court's order conditionally reinstating the complaint of plaintiff Wells Fargo Bank, N.A., after it had been dismissed for failure to prosecute; and (2) the trial court's order granting summary judgment in Wells Fargo's favor. As the trial court did not abuse its discretion in reinstating the action, and no genuine issues of material fact preclude Wells Fargo's right to foreclose, we affirm. On May 22, 2006, Harris borrowed $543,000 from World Savings Bank, FSB, to purchase a residential property in Englewood. The thirty-year note was secured by a mortgage on the property. The following year, Harris borrowed an additional $150,000 from World Savings, on a home equity line of credit, secured by a mortgage on the Englewood property. That same year, the federal Office of Thrift Supervision confirmed in correspondence that World Savings amended its bylaws and charter to change its name to Wachovia Mortgage, FSB, effective December 31, 2007. Almost two years later, Wells Fargo acquired 2 A-5611-15T3 Wachovia. The acquisition was confirmed in a January 7, 2013 letter from the United States Comptroller of the Currency. Harris provides no competent evidence to dispute Wells Fargo's contention that both obligations have been in default since August 15, 2009. Wells Fargo served its notice of intention to foreclose in a timely manner. The matter was automatically stayed from July 27, 2011, until February 8, 2012 by Harris's Chapter 13 bankruptcy proceeding. On March 14, 2012, after the automatic stay was lifted as to Wells Fargo's secured interest, Harris filed an answer to the foreclosure complaint alleging that Wells Fargo lacked standing because it was neither the original mortgagee nor an assignee of the mortgage. Wells Fargo then moved for summary judgment, which the trial court granted on August 24, 2012, finding no genuine factual issues about either Wells Fargo's standing or Harris's default status. The trial court also instructed that Wells Fargo could request an entry of final judgment through the Office of Foreclosure on an uncontested basis. However, Wells Fargo failed to request final judgment and the Office of Foreclosure dismissed the case for lack of prosecution on December 20, 2013. On March 20, 2015, Wells Fargo moved for reinstatement, arguing that changes to Rule 4:64, establishing new certification requirements, took time to implement firm wide. Despite Harris's 3 A-5611-15T3 opposition, the trial court reinstated the action under Rule 4:64- 8 after finding that Wells Fargo established good cause and Harris was not prejudiced since she was living in the home rent free. But, Wells Fargo failed to move for final judgment. Again over Harris's opposition, the court on October 9, 2015, gave Wells Fargo another 120 days to move for final judgment. Wells Fargo failed to act within the allotted time, and requested yet another extension on February 19, 2016. Harris opposed the motion, arguing the case should be dismissed since all the delays were Wells Fargo's fault. As to good cause, Wells Fargo argued it had yet to finalize the certification of amount due. In granting the motion, the judge reasoned that forcing Wells Fargo to start over was too harsh a remedy. The judge granted Wells Fargo a one hundred day extension to move for final judgement. Finally, Wells Fargo complied and moved for final judgment on April 8, 2016, seeking $989,974.47 as the total amount due. Over Harris's objection, the trial court entered final judgment, specifying that Harris owed $543,000 as the principal due on the first mortgage, $150,000 on the home equity line of credit, plus $7,500 in attorney's fees, combined with interest, for a total amount due of $989,974.47. This appeal followed. We review de novo the trial court's grant of summary judgment, applying the same familiar standard that governs the trial court, 4 A-5611-15T3 Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010), but we deferentially review the trial court's discretionary decision to grant a motion to reinstate a complaint, and will act only to prevent an injustice, St. James AME Dev. Corp. v. City of Jersey City, 403 N.J. Super. 480, 484 (App. Div. 2008). Reinstatement of a foreclosure action following a dismissal for failure to prosecute "may be permitted only on motion for good cause shown." R. 4:64-8. We have found no reported decision that explains the "good cause" requirement, but the rule's language "generally follows Rule 1:13-7." See Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 4:64-8 (2018). However, Rule 1:13- 7 grants a party ninety days to seek reinstatement for "good cause," after which the party must show "exceptional circumstances." By contrast, Rule 4:64-8 includes no such ninety- day period. Nonetheless, as for the meaning of "good cause," we may presume that the Rule's drafters "used the word in the later [rule] in the same sense as in the . . . earlier [rule]." Bank of Montclair v. McCutcheon, 107 N.J. Eq. 564, 567 (Prerog. Ct. 1930) (referring to statutory interpretation). Rule 1:13-7 is an "administrative rule designed to clear the docket of cases that cannot, for various reasons, be prosecuted to completion." Mason v. Nabisco Brands, Inc., 233 N.J. Super. 263, 267 (App. Div. 1989). "Notwithstanding the adoption of the 5 A-5611-15T3 good cause standard, absent a finding of fault by the plaintiff and prejudice to the defendant, a motion to restore under the rule should be viewed with great liberality." Ghandi v. Cespedes, 390 N.J. Super. 193, 197 (App. Div. 2007). The delay in filing the final judgment with the Office of Foreclosure was clearly attributable to Wells Fargo. The court allowed reinstatement of the complaint on the theory that Harris would not suffer any prejudice. The court reasoned that Harris was living rent free in the home while the foreclosure proceedings continued. Additionally, dismissing the action would not have secured any property rights for Harris; the residence would have remained encumbered, and the mortgage would have remained in arrears. Wells Fargo apparently would have had every right to reinstitute the foreclosure action since Harris does not argue that the statute of limitations has run. See N.J.S.A. 2A:50-56.1. Thus, the trial court did not abuse its discretion in reinstating the complaint. As for the multiple extensions of time, "[a] court may exercise broad discretion in controlling its calendar." State v. Kates, 426 N.J. Super. 32, 45 (App. Div. 2012), aff'd o.b., 216 N.J. 393 (2014). We will not disturb the discretionary ruling unless it was "clearly unreasonable" and "prejudice[ed] . . . the rights of the party complaining." Smith v. Smith, 17 N.J. Super. 6 A-5611-15T3 128, 133 (App. Div. 1951). The trial judge determined that judicial economy warranted an extension of time, rather than dismissal of the case without prejudice and returning a six-year litigation back to square one. This was not an abuse of discretion, particularly since Harris did not suffer any prejudice. We turn next to Harris's substantive arguments. "The only material issues in a foreclosure proceeding are the validity of the mortgage, the amount of the indebtedness, and the right of the mortgagee to resort to the mortgaged premises." Great Falls Bank v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993), aff'd, 273 N.J. Super. 542 (App. Div. 1994). Harris presents no competent evidence to contest the first two elements. Rather, she argues Wells Fargo lacks standing because World Savings, not Wells Fargo, is the original mortgagee; therefore, only World Savings has standing to foreclose. The legal effect of a merger between two banking institutions is that "the property and rights of [the] merging bank . . . vest in the receiving bank without further act or deed," and "the rights and obligations of [the] merging bank shall become the rights and obligations of the receiving bank." N.J.S.A. 17:9A-139(1), (3). We specifically addressed the merger between Wachovia and Wells Fargo in Suser v. Wachovia Mortg., FSB, 433 N.J. Super. 317, 7 A-5611-15T3 321 (App. Div. 2013). The plaintiff sought to quiet title by, among other things, removing a mortgage recorded by World Savings. Id. at 320. We rejected the plaintiff's challenge to Wells Fargo's standing, stating: Wells Fargo's authority to seek foreclosure of the World Savings mortgage was [not] based on an assignment. Instead, Wells Fargo asserted, without substantial contradiction, that the original mortgage holder World Savings Bank, FSA changed its name to Wachovia Mortgage, FSB, effective December 31, 2007, and that Wachovia was acquired by and merged into Wells Fargo effective November 1, 2009. . . . Wells Fargo's right to enforce the mortgage arises by operation of its ownership of the asset through mergers or acquisitions, not assignment. Accordingly, plaintiff's assertions regarding standing have no bearing on Wells Fargo . . . . [Ibid.] Here as well, Wells Fargo has provided sufficient and undisputed documentation that it acquired and merged with Wachovia, formerly World Savings. Therefore, Wells Fargo has standing to foreclose without proof of a formal assignment. Harris argues for the first time on appeal that the final judgment of foreclosure should be vacated under Rule 4:50-1(a), (b), and (c), because Wells Fargo's calculations of the final amount due were incorrect. As Harris could have raised this issue before the trial court, and the issue does not involve the trial court's jurisdiction or a significant public policy matter, we 8 A-5611-15T3 decline to address it. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Harris's remaining argument regarding rescission of the loan under the Truth in Lending Act, 15 U.S.C. § 1601 to § 1667, lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). Affirmed. 9 A-5611-15T3

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Docket No.: a0062-17
Decided: 2018-07-06
Caption: STATEOF NEW JERSEY v. CHARLES JACKSON
Status: unpublished
Summary:
PER CURIAM Defendant Charles Jackson was indicted for: second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), (c)(4) (counts one and two); second-degree luring or enticing a child, N.J.S.A. 2C:13-6 (count three); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count four). Defendant was found guilty after a jury trial on counts three and four, and of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), as lesser-included offenses of counts one and two. He received an aggregate state prison sentence of fifteen years with seven and one-half years of parole ineligibility. We affirmed his conviction and sentence, State v. Jackson, A-5614-11 (App. Div. June 6, 2014);1 our Supreme Court denied defendant's petition for certification, State v. Jackson, 220 N.J. 99 (2014). Defendant appeals from the denial of his post-conviction relief (PCR) petition without an evidentiary hearing, arguing: POINT I THE POST-CONVICTION RELIEF COURT ERRED IN DENYING THE DEFENDANT'S PETITION FOR POST- CONVICTION RELIEF WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING TO FULLY ADDRESS HIS CONTENTION THAT HE FAILED TO RECEIVE ADEQUATE LEGAL REPRESENTATION AT THE TRIAL LEVEL. A. THE PREVAILING LEGAL PRINCIPLES REGARDING CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL, EVIDENTIARY 1 We need not repeat the facts that are set forth in our prior opinion. 2 A-0062-17T3 HEARINGS AND PETITIONS FOR POST- CONVICTION RELIEF. B. TRIAL COUNSEL DID NOT ADEQUATELY REPRESENT THE DEFENDANT ARISING OUT OF HER FAILURE TO THOROUGHLY DISCUSS WITH HER CLIENT ALL RELEVANT RAMIFICATIONS ASSOCIATED WITH THE DECISION WHETHER OR NOT TO TESTIFY, FURTHER ADVISING THE DEFENDANT NOT TO TESTIFY DESPITE HIS DESIRE TO DO SO, AS A RESULT OF WHICH HE DID NOT TESTIFY IN HIS OWN DEFENSE. C. THE DEFENDANT DID NOT RECEIVE ADEQUATE LEGAL REPRESENTATION FROM TRIAL COUNSEL AS A RESULT OF TRIAL COUNSEL'S FAILURE TO MAKE A MOTION TO DISMISS THE INDICTMENT BASED UPON PROSECUTORIAL MISCONDUCT IN THE GRAND JURY. POINT II THE POST-CONVICTION RELIEF COURT ERRED IN DENYING THE DEFENDANT'S PETITION, IN PART, ON PROCEDURAL GROUNDS PURSUANT TO RULE 3:22-4. Unpersuaded by any argument, we affirm. Absent an evidentiary hearing, our review of the factual inferences drawn by the PCR court from the record is de novo. State v. Blake, 444 N.J. Super. 285, 294 (App. Div. 2016). Likewise, we review de novo the PCR court's legal conclusions. Ibid. Defendant claims only that his trial counsel failed to fully discuss the consequences of testifying at trial and, although he wanted to testify, trial counsel advised against it; he does not claim he was not informed of his right to testify. It is incumbent 3 A-0062-17T3 on trial counsel "to advise defendant on whether to testify and to explain the tactical advantages or disadvantages" of that decision. State v. Savage, 120 N.J. 594, 630 (1990) (quoting State v. Bogus, 223 N.J. Super. 409, 423 (App. Div. 1989)). "[A] defendant's complete understanding of his right to testify can be confirmed only when we have assurances that he has been advised of the particular consequences in the trial at hand." State v. Bey, 161 N.J. 233, 311 (1999). We have such assurances on this case, gleaned from the record. After the trial court reviewed the model charge, "DEFENDANT’S ELECTION NOT TO TESTIFY,"2 with defendant, and defendant told the judge he wanted the instruction presented to the jury, his counsel asked the judge to conduct a Sands3 hearing, explaining that "one of the reasons he's electing not to testify is because he has a criminal record" and that when she and defendant were discussing whether his prior convictions would be admissible to impeach his credibility, "the fact that he has prior convictions weighed heavily in our decision" not to testify. She continued, "But that's only my opinion. It's not a [c]ourt's finding whether it's admissible or not." Counsel wanted to ascertain the trial court's 2 Model Jury Charges (Criminal), "Defendant's Election Not to Testify" (rev. May 4, 2009). 3 State v. Sands, 76 N.J. 127 (1978). 4 A-0062-17T3 opinion on the admissibility of the prior convictions and their possible sanitization. A few things are clear from the record. The Sands hearing confirmed that trial counsel advised defendant regarding the use of his prior convictions if he testified. Counsel gave advice, but defendant elected not to testify. Although the trial judge did not engage in the thorough exploration with defendant of the possible consequences of his choice not to testify as did the judge in State v. Ball, 381 N.J. Super. 545, 555-57 (App. Div. 2005), defendant acknowledged in colloquy that he wanted the model jury charge. He admitted in his PCR-supporting certification that his counsel "advised against . . . taking the stand" but it was he who "followed" that advice; the decision not to testify was not unilaterally made by counsel. And it was made by defendant knowing the judge would likely decide — as he ultimately did — to admit his unsanitized prior convictions for first-degree robbery, second-degree possession of a weapon for an unlawful purpose, second-degree possession of CDS with intent to distribute within 500 feet of public property, third-degree possession of CDS with intent to distribute within 1000 feet of school property, a first- degree promoting prison contraband conviction in New York and third-degree possession of CDS. That decision did not change after defendant heard the judge's Sands-hearing ruling. In his 5 A-0062-17T3 certification defendant admitted, "I knew [not taking the stand] was a mistake, but I followed my trial attorney's advice to my detriment." We see no evidence to support defendant's contention his counsel failed to advise him of the consequences of exercising or waiving his right to testify, necessary to satisfy his burden to show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). Further, we do not see that defendant established he suffered prejudice – which "is not presumed, and must be proven," State v. Fisher, 156 N.J. 494, 500 (1998) – due to counsel's deficient performance, Strickland, 466 U.S. at 687, 691-92. Defendant must show by a "reasonable probability" that the deficient performance affected the outcome. Fritz, 105 N.J. at 58. Defendant – other than to say that it was necessary that he testify about his version of events lest the jury be left only with the uncontroverted victim's testimony — did not provide an affidavit or certification setting forth his version. R. 3:22- 10(c). "In order for a claim of ineffective assistance of counsel to entitle a PCR petitioner to an evidentiary hearing, 'bald assertions' are not enough — rather, the defendant 'must allege facts sufficient to demonstrate counsel's alleged substandard 6 A-0062-17T3 performance.'" State v. Jones, 219 N.J. 298, 312 (2014) (quoting State v. Porter, 216 N.J. 343, 355 (2013)). Based on this record, we do not determine, especially in view of his many prior convictions, that defendant has shown there is a reasonable probability his testimony would have affected the outcome of his trial. We also agree with the PCR judge that the record regarding counsel's advice was sufficiently developed before the trial court and is thus barred. R. 3:22-4(a). The issue could have been raised on direct appeal and we see no exception under Rule 3:22- 4(a)(1), (2) or (3) that warrants relief.4 Defendant's argument that trial counsel was ineffective because she failed to file a motion to dismiss the indictment based on prosecutorial misconduct is based on defendant's contention that "the grand jury was misled when it was informed there had been 'no results back yet' as to whether any semen had been found" does not accurately reflect the State's presentation, the pertinent part of which was: A JUROR: Did they find any semen? 4 The three exceptions to the bar are that: the issue could not reasonably have been raised in any prior proceeding; enforcement of the bar would result in fundamental injustice; or denial of relief would be contrary to a new state or federal constitutional law. 7 A-0062-17T3 [ASSISTANT PROSECUTOR]: None had been recovered? [DETECTIVE]: There hasn't been a conclusive result back from the lab yet. They were being sent to the lab but there's no results back yet. We determine this argument lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2). We add only the following brief comments. Contrary to defendant's argument, the State did not withhold exculpatory evidence from the grand jury. As defendant concedes in his merits brief, the report available to the State on the date of the grand jury presentment – showing that no semen was found on the submitted items — was only preliminary. As the PCR judge found, it was not until eighteen days after presentment that the final laboratory report was completed, showing the presence of the victim's DNA – and no semen. At the time of presentment, as the detective testified, no conclusive results were available. The grand jurors were not told, nor could or did they consider any evidence in deliberating, that semen had been found. Moreover, as the PCR judge observed, the victim alleged defendant committed penile, oral and digital vaginal penetration. The absence of semen did not "squarely refute[] an element" of the crimes charged; the State, therefore, was not obligated to present the preliminary report. State v. Hogan, 144 N.J. 216, 237 (1996) (emphasis 8 A-0062-17T3 omitted). The oral and digital penetration was not refuted by the absence of semen. And again, we do not see that defendant was prejudiced. The jury did not find him guilty of the penetration charges. Like the claim related to counsel's advice regarding his testimony, defendant's claim that counsel should have filed a motion to dismiss the indictment is barred under Rule 3:22-4(a). The grand jury presentation fully developed this issue which should have been raised on appeal; we determine no exception to the bar applies. We also determine defendant's argument that the PCR judge abused his discretion by denying him an evidentiary hearing to be without sufficient merit to warrant discussion here. R. 2:11- 3(e)(2). A defendant must establish a prima facie case in support of a PCR application, R. 3:22-10(b), by demonstrating "the reasonable likelihood of succeeding" under the Strickland test before an evidentiary hearing is ordered, Preciose, 129 N.J. at 462-63. Defendant failed to do so and an evidentiary hearing was not warranted. Affirmed. 9 A-0062-17T3

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Docket No.: a1928-16
Decided: 2018-07-06
Caption: STATE OF NEW JERSEY v. YERO TAKUMA
Status: unpublished
Summary:
PER CURIAM Defendant Yero Takuma appeals from the denial of his motion to correct an illegal sentence, arguing: POINT I BECAUSE THE EIGHTH AMENDMENT AND OUR STATE CONSTITUTION GIVE JUVENILE OFFENDERS SENTENCED TO LENGTHY PRISON TERMS "SOME MEANINGFUL OPPORTUNITY TO OBTAIN RELEASE BASED ON DEMONSTRATED MATURITY AND REHABILITATION," DEFENDANT TAKUMA, WHO HAS ALREADY SERVED IN EXCESS OF 33 YEARS IN PRISON, MUST BE RESENTENCED. A. THE EIGHTH AMENDMENT AND JUVENILE OFFENDERS. B. THE RECOGNITION THAT JUVENILE OFFENDERS ARE SUSCEPTIBLE TO CHANGE. C. THE ZUBER[1] OPINION AND OUR STATE CONSTITUTION. D. UNDER THE ANALYSIS SET FORTH IN MILLER[2] AND ZUBER, JUVENILE OFFENDERS WHO HAVE SERVED MORE THAN 30 YEARS IN PRISON ARE ENTITLED TO A RESENTENCING. We decline to extend defendant's interpretation of the precepts of Miller and Zuber to this case and affirm. 1 State v. Zuber, 227 N.J. 422, cert. denied, ___ U.S. ___, 138 S. Ct. 152 (2017). 2 Miller v. Alabama, 567 U.S. 460 (2012). 2 A-1928-16T1 Defendant, having been charged under two indictments for crimes committed when he was sixteen years old,3 pleaded guilty to all four counts of the first indictment: felony murder of Preston McGhee, N.J.S.A. 2C:11-3(a)(3) (count one); first-degree robbery of McGhee, N.J.S.A. 2C:15-1 (count two); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four); and to aggravated manslaughter as a lesser included offense of count one of the second indictment.4 The State agreed to recommend: (1) a sentence of thirty years to life for felony murder under count one of the first indictment with a minimum parole ineligibility of thirty years; (2) a concurrent term for the sentence imposed for aggravated manslaughter under the second indictment; and (3) dismissal of the remaining counts of the second indictment. In accordance with the range set forth in the plea agreement, 3 The crimes were committed on February 13, 1984. Defendant was born on May 15, 1967. 4 The second indictment charged defendant with the purposeful or knowing murder of Edmond Leslie, N.J.S.A. 2C:11-3(a)(1), (2) (count one); felony murder of Leslie, N.J.S.A. 2C:11-3(a)(3) (count two); first-degree robbery of Leslie, N.J.S.A. 2C:15-1 (count three); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count four); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count five). 3 A-1928-16T1 defendant was sentenced in January 1985 to life imprisonment with a thirty-year parole ineligibility period for felony murder, and to concurrent terms of twenty years for robbery, five years for unlawful possession of a handgun, and ten years for possession of a weapon for an unlawful purpose. On the second indictment, he was sentenced to a concurrent term of ten years for aggravated manslaughter.5 Before addressing defendant's arguments, we turn to the State's claims that this appeal is procedurally barred under Rule 3:22-5 and is moot. The Rule 3:22-5 bar stems from defendant's January 2013 motion for reduction of sentence under Rule 3:21-10 based on the United States Supreme Court's holding in Miller. Because we affirmed the trial court's denial of that motion,6 the State argues defendant is seeking "a second bite at the same apple," which should be precluded inasmuch as our decision was a "prior adjudication upon the merits of any ground for relief [which] is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior 5 We affirmed defendant's sentence but merged the robbery conviction with his felony murder conviction and vacated the robbery sentence. State v. Griffith, No. A-2903-84 (App. Div. Nov. 19, 1985). 6 State v. Takuma, No. A-4784-13 (App. Div. Feb. 10, 2015). 4 A-1928-16T1 to the adoption thereof, or in any appeal taken from such proceedings," R. 3:22-5. Notwithstanding that defendant's present claim directly references Miller, he avers in his reply brief that he "is not seeking to relitigate a Miller claim, he is seeking relief based on Zuber." Setting aside for a moment that Zuber was decided by the Supreme Court after the motion judge had already entered the order that is the basis for this appeal – and before this appeal was filed7 – we will allow defendant's challenge to what he alleges is an illegal sentence. See Zuber, 227 N.J. at 437 (recognizing that Rule 3:21-10(b)(5) permits a defendant to "challenge an illegal sentence at any time"). We also determine the State's mootness argument – based on defendant's present parole-eligible status after having served thirty years — to be without sufficient merit to warrant discussion here. R. 2:11-3(e)(2). Defendant's parole status could be impacted if we were to order defendant to be resentenced, and a judge reduced the life term. See In re Registrant J.S., 444 N.J. Super. 303, 313 (App. Div. 2016) (acknowledging a case is moot "when the decision sought in a matter, when rendered, can have no 7 The motion judge's order was entered November 17, 2016. Our Supreme Court decided Zuber on January 11, 2017. Defendant filed this appeal six days later. 5 A-1928-16T1 practical effect on the existing controversy" (quoting Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 258 (App. Div. 2006))). Despite appellate counsel's advancement of an argument unraised to the trial court, we will consider defendant's argument that he is entitled to resentencing under the Supreme Court's holding in Zuber, by extension of Miller.8 See ACLU v. Cty. of Hudson, 352 N.J. Super. 44, 72 (App. Div. 2002) (recognizing that an argument not raised in the trial court may be considered on appeal where "an arguably superseding . . . decisional development occur[red] between the time a court rendered its decision and appellate consideration of the judgment or order" and "the focal issue [was] entirely a question of law"). "We consider legal and constitutional questions de novo." State v. Galicia, 210 N.J. 364, 381 (2012); see also State v. Hudson, 209 N.J. 513, 529 (2012) (noting that questions of law in sentencing are reviewed de novo). We first conclude that the Eighth Amendment prohibition on "a sentencing scheme that mandates life in prison without 8 The trial court did consider our now overturned decision in State v. Zuber, 442 N.J. Super. 611 (App. Div. 2015), concluding that defendant's thirty-year period of parole ineligibility "did not amount to a de facto life sentence as it afforded him the opportunity to have a meaningful and realistic opportunity for parole." 6 A-1928-16T1 possibility of parole for juvenile offenders," as determined by the Miller court, 567 U.S. at 479, is not implicated here. In considering the reach of Miller and other related decisions, the Zuber Court considered the sentences of two offenders who were juveniles when they committed their crimes: Zuber, who was convicted of two rapes and sentenced to an aggregate of 110 years with fifty-five years of parole ineligibility – first eligible for parole at age seventy-two; and Comer, who was convicted of four armed robberies and sentenced to an aggregate of seventy-five years with just over sixty-eight years of parole ineligibility – first eligible at age eighty-five. Zuber, 227 N.J. at 428, 430, 433. Although the Court determined both sentences were "not officially 'life without parole,'" they nonetheless "trigger[ed] the protections of Miller under the Federal and State Constitutions." Id. at 448. The important question considered by the Zuber Court – "Will a juvenile be imprisoned for life, or will he have a chance at release?" Id. at 446 – has already been answered in this case. Defendant – who is not yet forty years old — has already been considered for parole.9 Unlike the defendants in Zuber, defendant 9 The New Jersey Parole Board denied defendant's application in May 2015. Takuma v. N.J. State Parole Bd., No. A-5672-14 (App. Div. May 2, 2017) (slip op. at 5). We reversed the Parole Board's 7 A-1928-16T1 did not face "potential release after five or six decades of incarceration, when they would be in their seventies and eighties." Id. at 448. Defendant has not – in violation of the Eighth Amendment – been "denied [by the State of] any chance to later [after sentencing] demonstrate that he is fit to rejoin society." Graham v. Florida, 560 U.S. 48, 79 (2009) (emphasis added). Unlike the sentences imposed in Zuber, this was a bargained- for term, pursuant to which defendant enjoyed the benefit of sentences on all other counts that ran concurrent to the life term with a mandated thirty years of parole ineligibility. The sentence – which has already resulted in an opportunity to obtain release – hardly amounts to the constitutionally infirm life without effective chance of parole terms decried in Zuber. Further, the sentencing judge said he was burdened "because the court realizes the age of the [d]efendant when he perpetrated these crimes, and he is young today," and found "there's one mitigating factor, his age." The judge also noted that defendant did not have a lengthy record because he's a [juvenile] and as a [juvenile] he had one possession in 1983 of a dangerous weapon which was a gun. His background, he was attending denial of defendant's parole application and remanded the matter for the Board to conduct a new parole hearing within forty-five days because it was unclear what standard the Board applied when it reviewed defendant's application. Id. at 8-9. The record does not contain the Parole Board's decision on remand. 8 A-1928-16T1 school but had to leave. He was always involved in fights, showing the nature of the person. He was involved in fights and as a matter of fact was expelled, I think from Barringer High School, because of many incidents of fighting in school, indicating violence within [defendant] that he expressed one night in killing two people. The judge imposed sentence after weighing the circumstances of the crimes against defendant's age and background. We find no support for defendant's contention that the sentencing judge believed defendant "might be beyond rehabilitation." Defendant did not raise to the trial court, likely because Zuber had not yet been decided, his present argument that juveniles who have served prison terms of thirty years or more should be considered for resentencing or parole. Our Supreme Court declined to address that issue in Zuber, and instead "encourage[d] the Legislature to examine this issue," observing "Graham left it to the States 'to explore the means and mechanisms' to give defendants 'some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.'" Zuber, 227 N.J. at 452 (quoting Graham, 560 U.S. at 75). We follow the Court's recommendation, noting the Legislature's introduction – and referral to the Law and Public Safety Committee – of S. 428 (2018). We also note defendant has had a "meaningful opportunity to obtain release." 9 A-1928-16T1 We determine the balance of defendant's arguments to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Inasmuch as we determine defendant is not entitled to be resentenced under Zuber, we need not consider defendant's musings that our Supreme Court chose resentencing as the remedy because the Parole Board does not consider a juvenile's youth and attendant circumstances. The Supreme Court made no such pronouncement. Moreover, we will not consider an issue that implicates the interplay of judicial sentencing and executive parole raised for the first time in defendant's reply brief. See Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J. Super. 590, 596 (App. Div. 2001) (declining to consider an issue raised "for the first time in a reply brief"); see also State v. Smith, 55 N.J. 476, 488 (1970). Affirmed. 10 A-1928-16T1

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Docket No.: a5308-15
Decided: 2018-07-06
Caption: STATE OF NEW JERSEY v. JOSE SANTANA
Status: unpublished
Summary:
PER CURIAM Defendant appeals from jury-tried convictions for second- degree sexual assault, N.J.S.A. 2C:14-2(b) (count one), and third- degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (a lesser-included offense under count two), arguing: POINT I THE COURT FAILED TO CHARGE THE JURY IN RELATION TO [DEFENDANT'S] STATEMENT AND THE REMAINDER OF THE CHARGE THAT WAS GIVEN WAS INSUFFICIENT TO ADVISE THE JURY OF THE NEED TO CRITICALLY AND EFFECTIVELY EVALUATE HIS STATEMENT IN LIGHT OF THE REALITY THAT JURORS HAVE GREAT DIFFICULTY DISTINGUISHING BETWEEN FALSE CONFESSIONS AND TRUE CONFESSIONS. U.S. CONST. AMEND. VI; N.J. CONST. ART I, ¶ 10. POINT II THE SENTENCE IS MANIFESTLY EXCESSIVE. And contending, in a supplemental pro se brief, POINT I THE TRIAL COURT ERRED IN CONCLUDING THAT APPELLANT'S STATEMENTS WERE NOT IN VIOLATION OF THE MIRANDA[1] WARNING WHERE A SPANISH INTERPRETER SHOULD HAVE BEEN AFFORDED TO HIM BEFORE HIS SIGNATURE WAS PLACED ON THE WAIVER OF RIGHTS FORM. We affirm. Defendant contends the trial judge erred – following the admission of his video-recorded statement to detectives from the Camden County Prosecutor's Office and Cherry Hill Police 1 Miranda v. Arizona, 384 U.S. 436 (1966). 2 A-5308-15T2 Department – when she failed to present to the jury the "Statements of Defendant" model jury charge,2 – familiarly referred to as a Hampton3 charge or instruction – which he argues should have been modified to reflect the unreliability of false statements. Defendant neither requested a Hampton charge nor objected to the instruction provided the jury. Nonetheless, our Supreme Court, in State v. Jordan, 147 N.J. 409, 425 (1997), instructed: Whether requested or not, whenever a defendant's oral or written statements, admissions, or confessions are introduced in evidence the Hampton instruction, directing the jury to determine the credibility of the statements without any knowledge that the court has already determined the issue of voluntariness, should be given. By using the term "shall" in N.J.R.E. 104(c), we expressly recognized that a Hampton charge is required. Because of the critical role that a defendant's oral and written statement may have, a jury should be advised to focus on the credibility of those statements. Indeed, unless a defendant specifically requests that the Hampton charge not be given, and the trial court satisfies itself with written findings that such reasons have merit, a Hampton charge should always be given. As reflected in the model charge, once a defendant's statement is submitted to the jury, jurors must be "instructed that they should 2 Model Jury Charge (Criminal), "Statements of Defendant" (rev. June 14, 2010). 3 State v. Hampton, 61 N.J. 250 (1972). 3 A-5308-15T2 decide whether in view of all the . . . circumstances" regarding whether the statement was voluntary, including the waiver of Miranda rights after administration of Miranda warnings, "the defendant's confession is true. If they find that it is not true, then they must treat it as inadmissible and disregard it for purposes of discharging their function as fact finders on the ultimate issue of guilt or innocence." Hampton, 61 N.J. at 272; see also Model Jury Charge (Criminal), "Statements of Defendant" (rev. June 14, 2010). Because this alleged error went unchallenged at trial, it is subject to plain error analysis. R. 2:10-2; State v. Macon, 57 N.J. 325, 336-37 (1971). In the setting of this case we consider that: The failure of a court to give a Hampton charge, however, is not reversible error per se. It is reversible error only when, in the context of the entire case, the omission is "clearly capable of producing an unjust result. . . ." R. 2:10-2. That problem would arise most frequently when the defendant's statement is critical to the State's case and when the defendant has challenged the statement's credibility. If, however, the defendant's statement is unnecessary to prove defendant's guilt because there is other evidence that clearly establishes guilt, or if the defendant has acknowledged the truth of his statement, the failure to give a Hampton charge would not be reversible error. [Jordan, 147 N.J. at 425-26 (alteration in original).] 4 A-5308-15T2 We note the State's introduction of: the eight-year-old victim's fresh complaint4 on the date of the assault; her video- recorded statement admitted into evidence under the tender-years exception;5 and a sexual assault nurse examiner's testimony that on physical examination on the date of the assault, the victim's vaginal and anal area was red and swollen – and photographs of that condition – buttressed the allegations against defendant. Moreover, we mark the use to which defendant put the statement during the trial. Reminding the jury that they could not draw an adverse inference from defendant's choice not to testify, defense counsel told the jury, "Because even though he didn't personally stand before you, his video, which was allegedly the admission of guilt testified for him." Defense counsel – as he did many times during summation – strategically referred to defendant's statement as "testimony" which supported the defense theory that the touching was accidental, not criminally intentional, a tactic obvious from counsel's questioning of the prosecutor's detective during the 4 State v. Bethune, 121 N.J. 137 (1990). 5 N.J.R.E. 803(c)(27); State v. D.G., 157 N.J. 112 (1999). 5 A-5308-15T2 Miranda hearing.6 After apprising the jury of the judge's anticipated instruction that the State must prove that the sexual contact was intentional, defense counsel told the jury: Well when you go back in your mind and think about that video of [defendant], one thing is certain, that [defendant] at no time said that he intentionally did anything to that little girl. It never happened. There was no such confession on that video. . . . Now the most that I can say that the defendant may have said on that video was that he adopted something that one of the detectives said, is it possible. His response, anything is possible, that in the 6 Referring to a point in the statement where defendant admitted to "playing with her," the following colloquy ensued: [DEFENSE COUNSEL]: Prior to that, he's made no statement about doing anything. She gets scared. There's nothing here at all until after that about somebody suggests and one of you all suggested that it could have been a mistake, correct? [DETECTIVE RHOADS]: Yes. [COUNSEL]: And he repeated that. He said: "ANSWER: Well, it could have been a mistake." [RHOADS]: Yes. [COUNSEL]: That's not a confession is it? [RHOADS]: It's – in that context it's not. 6 A-5308-15T2 wrestling or whatever, you may have accidentally. Well if you accept that as the confession, where they say -- and he does on the video say well it may have been accidentally, but then after that he says I don't think so. I don't do that in his best English, all right? So he never says that I did this thing. He only adopts what the detectives had already put into his mind by saying well could -- is it possible that there was an accidental touching. So he said well maybe there was an accidental, but I don't think so. And I certainly never formed any intent in my mind to do so. If you remember that he said I never had any such an intent in my mind. So the testimony of the defendant on that video is evidence in this court, as is the testimony of [Wisleidy] and the detective. That's all evidence that you have to consider. The question is do you believe the defendant. In order to believe the defendant you have a couple of things you can look at. How he testified on the video, whether or not any of the things he said on that video were corroborated by the evidence. In speaking of defense-witness testimony that defense counsel said corroborated her client's statement about the time he arrived home after lunch at TGI Friday's – and contradicted the victim's testimony – defense counsel argued, "So you can believe [defendant] on that video when he says, [']I was at [TGI] Friday. I got home around 4:00.['] I corroborate that evidence." He repeated to the jury, in speaking of the witnesses who testified about defendant's 7 A-5308-15T2 character for truthfulness that they "can also believe [defendant's] testimony." And in advancing defendant's version of events, defense counsel said, "Well the testimony that you can believe is his." Defense counsel continued: So now we look back at this video. He says that's what happened that day. He went to the bathroom, came back out to the living room. She doesn't dispute any of that. She said she saw him in the hallway. Well she may have. He was coming from the bathroom. He went to his computer. She came and turned that computer on. I think you can find that from the totality of the evidence that's what happened. Counsel's concluding remarks regarding defendant's statement continued that theme: Again, talking to you about the defendant's video, I want you to find that the defendant was truthful in his statements to the police officers. . . . . . . You should hang your hats on whether or not you find that the defendant was truthful. If you find that he was truthful and he didn't get home until 4:00, that he was at his computer working, that he was on his cell phone talking, that she turned it on for him, then you're going to have to believe him. You're going to have to find him not guilty. The State in summation "disagreed" with defendant's profession that the touching was accidental, contending "the photographs [of the victim's vaginal and anal areas] and the 8 A-5308-15T2 evidence suggest that he did it on purpose and he did it roughly and violently." Under these circumstances, we conclude the failure to give the Hampton charge was not plain error. The defendant entreated the jury to believe his recorded statement that the touching was not intentional. Thus, the Hampton charge, which instructs the jury to disregard a statement if it finds the statement not credible, would have been antithetical to the proffered defense. Defendant's choice not to testify, but to rely on the "testimony" set forth in the recorded statement, militated against giving the jury instruction. We will not consider defendant's attack on the sufficiency of the model jury charge and his proposed change to same in that those issues were not raised before the trial court. State v. Robinson, 200 N.J. 1, 20 (2009). Absent a trial court record regarding the research cited by defendant in his merits brief, the issues are not before us. State v. Herrera, 187 N.J. 493, 501 (2006). We reject defendant's argument – made in his pro se supplemental brief – claiming a Miranda rights violation requiring suppression of his statement because he was not provided a Spanish- language interpreter during the recorded statement. The trial judge reviewed the recording and found defendant "responsive in 9 A-5308-15T2 his answers and he's speaking English in reference to the statements that he's given." She noted a portion of the statement where defendant actually responded to the detective's question, "I understand what you're saying. I understand." After detailing much of the colloquy with the detectives, the judge "found [defendant] to be very responsive. When you watch the flow of the conversation it was responsive." The judge concluded: I'm more than satisfied that [defendant] understood and I want to make clear that this is not a case that I see where you have an individual who has Spanish as their native tongue and that questions are being presented to that individual and he's saying non- responsive things or . . . he's just giving a yes or a no, that's not what is before the [c]ourt. The trial judge's findings, from our review of the statement,7 are supported by sufficient credible evidence in the record and are entitled to our deference. State v. S.S., 229 N.J. 360, 379-381 (2017). Defendant contends the seven-year state prison sentence imposed by the judge on the second-degree sexual assault count was excessive "[b]ecause [defendant] can be adequately punished for this offense with a lesser sentence." He does not contend the 7 We reviewed the statement as set forth in the transcripts provided; a video recording of the statement was not part of the record. 10 A-5308-15T2 trial judge's findings of aggravating factors two, N.J.S.A. 2C:44- 1(a)(2) (youthful victim); three, N.J.S.A. 2C:44-1(a)(3) (risk of re-offense); and six, N.J.S.A. 2C:44-1(a)(9) (deterrence); or mitigating factors seven, N.J.S.A. 2C:44-1(b)(7) (no prior record); eight, N.J.S.A. 2C:44-1(b)(8) ("The defendant's conduct was the result of circumstances unlikely to recur"); and nine, N.J.S.A. 2C:44-1(b)(9) (the defendant's character and attitude indicate an unlikelihood of reoffending), were not based on competent credible evidence. We review a "trial court's 'sentencing determination under a deferential standard of review.'" State v. Grate, 220 N.J. 317, 337 (2015) (quoting State v. Lawless, 214 N.J. 594, 606 (2013)). We may "not substitute [our] judgment for the judgment of the sentencing court." Lawless, 214 N.J. at 606. We must affirm a sentence if: (1) the trial judge followed the sentencing guidelines; (2) its findings of fact and application of aggravating and mitigating factors were "based upon competent, credible evidence in the record"; and (3) the application of the law to the facts does not "shock[] the judicial conscience." State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). We determine defendant's argument is without sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(2). 11 A-5308-15T2 The mid-range sentence does not shock our conscious and was meted in accordance with the sentencing guidelines. Affirmed. 12 A-5308-15T2

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Docket No.: a1132-16
Decided: 2018-07-05
Caption: DIVISION OF CHILD PROTECTION AND PERMANENCY v. Z.S.
Status: unpublished
Summary:
PER CURIAM In these back-to-back appeals, which we consolidate for purposes of issuing a single opinion, defendants Z.S.1 (mother) and A.A. (father) appeal from the Family Part's September 2, 2014 order, which became final on entry of an October 6, 2016 order terminating the litigation. Following a fact-finding hearing, on September 2, 2014, the trial court determined that defendants abused and neglected their daughter, H.A., born in September, 1997, within the meaning of N.J.S.A. 9:6-8.21(c)(3). Specifically, the court found that A.A. sexually abused H.A. and Z.S. failed to protect her. 1 Pursuant to Rule 1:38-3, we use initials to protect the privacy of the family. 2 A-1132-16T4 On appeal, both defendants argue the Division of Child Protection and Permanency (Division) failed to prove abuse and neglect by a preponderance of the evidence. In addition, A.A. argues that in terminating the litigation, the court unlawfully restricted his contact with his other children despite finding no evidence that he posed a risk to them. A.A. also argues that the court abused its discretion in denying defendants' Rule 4:50-1 motion to vacate and reconsider the fact-finding order based on newly discovered evidence. The Division opposes the appeal. H.A.'s Law Guardian opposes the appeal as to her father, but "takes no position regarding the finding of neglect against her mother . . . ." Based on our review of the record and the applicable legal principles, we conclude that the court applied the wrong standard in evaluating defendants' motion to reopen the fact- finding hearing. Accordingly, we reverse and remand. We summarize the facts from the record developed over the course of the six-day fact-finding hearing from June 23 to July 15, 2014, during which the Division presented eight witnesses, including expert witnesses, and the defense presented one witness. The court also admitted numerous documentary exhibits into evidence. The circumstances that led to the Division filing a verified complaint, pursuant to N.J.S.A. 9:6-8.21 and 30:4C-12, for custody of H.A., and care and supervision for her four 3 A-1132-16T4 siblings, Am.A., born in April 1996,2 S.A., born in October 1998,3 N.A., born in April 2007, and L.A., born in January 2009,4 began on October 9, 2013. On that date, the Division received a referral from the police that H.A., then a sixteen-year-old ninth-grade classified student with a full scale IQ of 81, disclosed to her guidance counselor that her father had sexual intercourse with her in the living room of their home one morning in the summer of 2013. H.A. told the counselor she complained to her mother in September 2013 but her mother did not believe her. A Division caseworker responded to the Bergen County Prosecutor's Office where H.A. was being interviewed. During the interview, H.A. recanted her allegations and stated she had lied about everything. H.A. explained that she fabricated the allegations because she was upset about her mother slapping her earlier that morning when her mother discovered she had lied about visiting her best friend, C.C., the day before. H.A. had actually spent the time with a "boy," knowing her parents disapproved. When questioned by the caseworker later that day, Z.S. confirmed that she had slapped H.A. that morning and that H.A. had 2 Am.A. reached the age of majority during the pendency of these proceedings and was dismissed from the litigation. 3 S.A.'s Law Guardian opposes the appeal as to both A.A. and Z.S. 4 N.A. and L.A.'s Law Guardian oppose the appeal as to A.A. 4 A-1132-16T4 disclosed A.A.'s alleged inappropriate touching in September 2013. However, she did not believe H.A. and attributed it to the bad influence of her friends. A.A. also denied the allegations to the caseworker and the other children indicated no concerns. In particular, the oldest child, Am.A., defended her father and explained that H.A. fabricated the allegations for attention. On November 20, 2013, when the caseworker returned to the home to follow up with the family, H.A. told her she had recanted because of pressure from her mother, confirmed that the sexual abuse had, in fact, occurred, and provided additional details of the incident. H.A. elaborated that when she awoke at approximately 6:00 a.m. one morning in June 2013, she went into the living room where her father was watching television, and initially sat on the couch. Later, while she was lying on the couch, A.A. turned off the lights and the television, covered her with a blanket and touched her vaginal area and breasts under her clothing. H.A. denied any digital or penile penetration but stated A.A. tried to put his tongue into her mouth, but she resisted. According to H.A., the incident lasted approximately five minutes, during which they both remained fully clothed. Afterwards, A.A. went into the bathroom to smoke a cigarette. At that point, H.A. ran out of the house with her mother's cell phone, called her best friend C.C. and told her what happened. Meanwhile, 5 A-1132-16T4 A.A. called H.A. several times on her mother's phone but she ignored the calls. When she finally answered the phone, A.A. told her he was "so sorry" and asked why H.A. did not tell him to stop. After consulting her supervisor, the caseworker transported H.A. back to the prosecutor's office, where she reiterated the allegations. Although H.A. stated she was telling the truth, she did not want to give a sworn statement and she did not want her father to go to jail. After the interview, the Division executed an emergency removal and placed H.A. in a resource home because H.A. did not feel safe returning home due to her mother and her siblings denigrating and vilifying her and accusing her of destroying the family. The Division also implemented a safety protection plan, restricting A.A.'s contact with the other children. In the course of the ensuing investigation, H.A. recounted the incident with some variances. On December 2, 2013, H.A. told another caseworker that A.A. tried to put his "thing in her mouth," as well as his tongue. She also stated that A.A. put his penis inside her vagina, but she was unsure how long it lasted or whether he ejaculated. On December 13, 2013, during a medical examination, H.A. told a pediatrician specializing in child abuse cases that A.A. touched her with his hand and his penis, that no one was home 6 A-1132-16T4 at the time of the incident, and that she told C.C.'s mother when it happened. On December 10, 2013, H.A. underwent a psychosocial evaluation and told the evaluator that the incident began with A.A. removing his boxer shorts, inserting his thumbs into her mouth to separate her jaw and "shov[ing] his penis into her mouth." According to H.A., once A.A.'s penis was "all the way in [her] mouth," he moved it "back and forth." H.A. also disclosed that during the incident, A.A. removed her bra, touched her breasts with his hands, and touched her vaginal area under her clothing with his hand and penis. At one point, H.A. flipped over and A.A. "got on top of [her]" and "went inside" her vagina with his penis, but she was unsure if he ejaculated. H.A. also told the evaluator that immediately after the incident, she picked up a phone and tried to dial 911 but A.A. threw the phone before she was able to hit send. When A.A. went to smoke a cigarette, she got dressed, grabbed the phone and ran to her friend's house, ignoring the incoming telephone calls from A.A. When she finally answered the phone, A.A. asked her why she ran away and begged her to come home. After she agreed, A.A. picked her up in his car, apologized to her, and told her to stop him in the future. H.A. told the evaluator that following the 7 A-1132-16T4 incident, she received preferential treatment from A.A. and was relieved of her usual chores. At the fact-finding hearing, the guidance counselor, C.C. and C.C.'s mother testified about H.A.'s disclosures to them. The guidance counselor, who described H.A. as attention-seeking and academically challenged, confirmed that on October 9, 2013, on her friends' prompting, H.A. disclosed to her that early one morning in June 2013, her father "put his private part into her private part," but she "clenched her legs shut," ran out and called her friend, C.C. C.C.'s mother testified that some time in June 2013, her telephone rang at approximately 6:00 a.m. When she heard H.A.'s voice on her answering machine imploring C.C. to answer her phone calls because she "ran away from home," C.C.'s mother answered the phone. Upon learning H.A.'s location, she arranged to pick her up. However, when she arrived, H.A. was not there, and she later learned from H.A. that she had run away from home because her father molested her. C.C. also testified that H.A. told her later that same day that her father had "raped" her and had done "things" to her, but she did not press H.A. for details because she did not want to upset her. H.A. testified at the fact-finding hearing that towards the end of June 2013, about two weeks after school ended but before 8 A-1132-16T4 Ramadan began, she was "raped" by her father. According to H.A., she had stayed up all night watching television on one of the living room couches, which was typical for her on summer breaks. Her father was also up all night and was seated on a different living room couch, browsing social media while he charged his phone. Her other family members were at home, but asleep. At approximately 6:00 a.m., her father turned off the television and the hallway light, and closed all the bedroom doors in proximity to the living room. He then removed his underwear, used his finger to force open her clenched teeth, inserted his erect penis into her mouth, and proceeded to "go[] back and forth with it." H.A. testified she was in shock and turned over on the couch, at which point her father unstrapped her bra and "started playing with [her] boobs" under her shirt while attempting to "get[] his penis in [her] vagina," but failing to do so. After the incident, when her father walked over to the window and gazed outside, H.A. grabbed her mother's cell phone and began dialing 911. However, her father returned the phone to the charger before she was able to complete the call and went into the bathroom to smoke a cigarette. At that point, H.A. changed her clothes, took her mother's phone again, and ran out of the house. Once outside, she frantically called C.C. repeatedly. Eventually, when C.C.'s mother answered the phone, H.A. told her that her father 9 A-1132-16T4 had raped her and begged her for help. Although C.C.'s mother agreed to pick H.A. up at the local post office, H.A. went to a different location. Meanwhile, A.A. called Z.S.' phone many times, but H.A. ignored the calls. When H.A. finally answered the phone, he apologized and begged her to come home. H.A. hung up but ultimately answered the phone again when he called back repeatedly and arranged for him to pick her up. During the car ride home, A.A. apologized again and told her to stop him in the future. When she arrived home, she sent a text message to C.C.'s mother telling her she was home and everything was fine. H.A. testified that after the incident, she received preferential treatment from her parents by being relieved of her usual chores and allowed to go to a water park with C.C.'s family over the summer. To corroborate H.A.'s testimony, the Division produced phone records of all incoming and outgoing telephone calls for Z.S.' phone for the months of June and July 2013. The records indicated that on June 24, 2013, between 6:11 a.m. and 6:40 a.m., there were twelve outgoing calls to C.C.'s home phone number. Between 6:38 a.m. and 6:44 a.m., there were three incoming calls from A.A.'s cell phone number. According to H.A., her disclosure to her mother in September 2013 followed a heated argument about enrolling in a school program 10 A-1132-16T4 for academically challenged students and attending a school dance, neither of which her mother would allow. She also confirmed that her disclosure in October 2013 followed another argument during which her mother had slapped her for lying about visiting C.C. She acknowledged that she had trouble dealing with her parents' strict rules in her home and the restrictions of her Islamic religion and culture, but insisted that she was telling the truth. She rejected the assertion that her allegations were motivated by retribution or rebellion. She expressed genuine concern for her family and insisted that she would never lie about something of this magnitude. She explained that despite the fact that her home felt like a "jail," she would love to go home if she knew her family supported her. When confronted with the inconsistencies in her disclosures and her recantation, she confirmed that her mother forced her to recant the allegations in October 2013 and dismissed inconsistencies as inaccurate or immaterial. During the fact-finding hearing, the Division presented expert testimony on the Child Sexual Abuse Accommodation Syndrome (CSAAS), to describe the constellation of factors common to sexually abused children, namely, secrecy, helplessness, coercion or accommodation, delayed or unconvincing disclosure, and recantation. The expert opined that neither multiple recantations nor the absence of grooming were fatal to a finding of child sexual 11 A-1132-16T4 abuse. The Division also presented expert testimony in relation to H.A.'s psychosocial evaluation, which found clinical support for sexual abuse, meaning that professional treatment for H.A. was recommended. The finding was based on H.A.'s "marked shift in affect" when discussing the abuse, her reported feelings of isolation, her spontaneous disclosure which was rich with idiosyncratic detail, and her fairly consistent recitation of core details of the incident. The expert noted H.A.'s lack of sexual knowledge, given her characterization of any form of sexual contact as rape, and opined that her inconsistencies were reflective of piecemeal disclosures that were directly influenced by the level of support she received from the adult to whom she was making the disclosure. The defense presented the testimony of Am.A., who maintained her defense of her father and continued to discredit H.A.'s account. Am.A. testified that her father was not capable of sexual assault and attributed the allegations to H.A.'s defiance and the negative influence of her friends. Am.A. also contradicted peripheral details of H.A.'s account to demonstrate that her father was never alone with H.A. in the house. Following the hearing, the court issued a seventy-nine page written opinion and conforming order, finding that the Division proved by a preponderance of the evidence that defendants had 12 A-1132-16T4 abused and neglected H.A. The court found the Division's witnesses credible, including H.A., whom the court found "to be a very credible witness, given her demeanor, her tone, her eye contact, and the forthright manner in which she answered questions." The court based its finding of abuse and neglect on H.A.'s "credible testimony, the phone records and witness testimony supporting her story" and the uncontroverted expert testimony. The court "note[d] that of the ten people and/or groups H.A. told about the incident, she told six of them that her father touched her breasts and her vagina. The remaining four individuals . . . did not testify or otherwise document H.A.'s disclosure in great detail." Further, "she told five of them that she left the house to call C.C., and two of them . . . confirmed that the calls were in fact placed. The remaining three individuals . . . did not testify or otherwise document H.A.'s disclosure in great detail." In addition, the court determined that "the credible and overwhelming testimony concerning what happened in the aftermath of the abuse," combined with the "cold, hard record of these frantic phone calls being made" "dispel any doubt as to whether something terrible happened at the end of June 2013. Simply stated, no one makes twelve consecutive phone calls to their best friend's house phone between 6:11 a.m. and 6:40 a.m. unless they 13 A-1132-16T4 are in distress." (emphasis omitted). The court was also "persuaded by what happened to H.A. in the days and weeks following the abuse" in terms of the reported preferential treatment and found it "highly credible in terms of their tendency to create an inference of a guilty conscience." The court rejected the defense theories that H.A.'s disclosures were motivated by anger at her strict parents, defiance of her Islamic practices or a desire for attention. In this regard, the court found Am.A.'s "testimony to be not credible" because "[a]s a parentified older sibling, she had the same biased attitude as her parents . . . ." As to the specific attacks on her credibility, the court determined that "H.A.'s delay in reporting, her piecemeal disclosures, her recantations, and her 'inconsistencies' [were] not fatal to [the court's] finding[,]" but were "quite easily explained by CSAAS." Further, the court found the inconsistencies in H.A.'s disclosures pertained to inconsequential peripheral facts, as opposed to "core" details. The court was also persuaded that the "changing disclosures" regarding A.A. inserting his penis into H.A.s mouth "correlated with the level of comfort that H.A. perceived as she continued to tell her story." Further, according to the court, the inconsistency about whether A.A. penetrated her vagina with his penis reflected H.A.'s "very crude understanding of human sexual 14 A-1132-16T4 behavior" and her preoccupation "with learning whether she [was] still a virgin." After the hearing, in March 2015, defendants moved pursuant to Rule 4:50-1 to vacate the fact-finding order based on newly discovered evidence. Specifically, A.A.'s counsel asserted that on June 22, 2014, immediately prior to the commencement of the fact-finding hearing, H.A. made similar allegations to her friend C.C. while she was at the resource home, accusing four boys of raping her by forcing her to perform oral sex and then recanting the allegations. A.A.'s counsel explained that on June 23 and 24, 2014, after the fact-finding hearing was underway, both defendants requested information from the Division regarding the new allegation but were advised the information was not available due to an ongoing police investigation. However, according to A.A.'s counsel, upon recently inspecting the file, she discovered a June 22, 2014 Special Response Unit (SPRU) report, detailing the Division's investigation of the new allegation, that was never provided to defendants during the trial.5 The SPRU report concluded that H.A. 5 A.A.'s counsel's inspection of the file apparently occurred in connection with another recantation of H.A.'s allegations against A.A. contained in an e-mail H.A. purportedly sent to her brother several months after the fact-finding hearing. On appeal, A.A. 15 A-1132-16T4 was safe and indicated that the Hudson County Prosecutor's Office "declined to take the case."6 A.A.'s counsel asserted that because the Division withheld the information, the experts were unable to consider the new allegation and recantation in evaluating H.A., and the defense attorneys were unable to cross-examine H.A., whose credibility was central to the court's finding. Defendants therefore urged the court to vacate the fact-finding order and re- open the fact-finding record to consider the new evidence. On June 17, 2015, the court issued a written decision and memorializing order denying defendants' motion, finding no basis to vacate the September 2, 2014 fact-finding order. The court also found no basis to conduct a plenary hearing because there was no dispute that the SPRU report existed. After incorporating the does not advance any arguments concerning that alleged recantation. 6 During the June 24, 2015 colloquy with the court, the Division's attorney objected to turning over the SPRU report, asserting that the Division was in the middle of the investigation, and the report was "not discoverable." When the court directed that the Division produce the report by June 27, 2015, the Division's attorney indicated that the investigation would probably not be completed by that time because "[t]he prosecutor's office [was] involved" and "[t]here [were] other interviews that need[ed] to take place with other individuals." Ultimately, the court ordered the Division to turn over the SPRU report immediately upon completion or "provide to defense counsel the name of the SPRU worker conducting the investigation" so that the worker could be subpoenaed to testify if the report was not available. However, the report was never produced during the fact-finding hearing and the SPRU worker never testified. 16 A-1132-16T4 factual findings detailed in the September 2, 2014 written decision, the court concluded that "under any of the subsections of [Rule] 4:50-1," the SPRU report would not have "altered the result of the trial" because "[d]efendants were given ample opportunity to cross-examine [H.A.] during the fact finding hearing." The court noted it was persuaded by "the Division's arguments that the SPRU report [was] irrelevant and inadmissible at trial because it [did] not establish that [H.A.] made false statements" or "fabricated" the new allegations. The court elaborated further: [t]he allegations referenced in the SPRU report were known to the defendants at the time of the fact[-]finding hearing and occurred a full year after the incident which form[ed] the basis of the fact[-]finding. The SPRU report is not probative of the issues presented by the fact[-]finding. Clearly, [H.A.] is a troubled child who, the record shows has been traumatized by the events detailed in the court's September 2, 2014 opinion. At the time of the allegations mentioned in the SPRU report, the child had been in foster care for approximately nine months. Moreover, the record made at the fact[-]finding reflects that she was 7 experiencing psychiatric issues. . . . All of these facts were known by the defendants at the time of the fact[-]finding hearing. 7 Indeed, immediately prior to the commencement of the fact- finding hearing, H.A. was hospitalized at the psychiatric unit of the Hoboken Medical Center suffering from major depression. She was released during the course of the trial and permitted to testify after the court conducted a testimonial hearing to determine whether H.A. was medically cleared to testify. 17 A-1132-16T4 This appeal followed. On appeal, defendant A.A. asserts that evidence of H.A.'s "pattern of alleging and recanting sexual assault casts doubt on [her] ability to testify truthfully" that would "have affected the result, had it been heard." (emphasis omitted). Defendant argues that the court "abused its discretion not to vacate and reconsider the fact-finding decision based on this newly uncovered evidence" as permitted under Rule 4:50-1. However, given the procedural posture of the case, we conclude that Rule 4:50-1 and its enhanced requirement for proof of "exceptional and compelling circumstances" to warrant relief, Baumann v. Marinaro, 95 N.J. 380, 393 (1984), was not the proper legal standard to apply in the circumstances presented here. It is well established that "the trial court has the inherent power, to be exercised in its sound discretion, to review, revise, reconsider and modify its interlocutory orders at any time prior to the entry of final judgment." Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987). In Lombardi v. Masso, 207 N.J. 517, 536-37 (2011), our Supreme Court acknowledged that where a litigation has not terminated, an interlocutory order is always subject to revision where the judge believes it would be just to do so. The rules governing final 18 A-1132-16T4 judgments, for example, that evidence must be newly discovered to be considered, R. 4:50- 1(b), do not apply in the interlocutory setting. Nor is the judge constrained, as would a reviewing court be, by the original record. [Id. at 536-37.] Thus, "the stringent constraints imposed on final judgments and orders under Rule 4:50-1 . . . are wholly inapplicable to interlocutory orders." Id. at 534. "Indeed, '[a] significant aspect of the interlocutory nature of an order is its amenability to the trial court's control until entry of final judgment without interposition of considerations appropriate to finality.'" Id. at 534-35 (alteration in original) (quoting Pressler & Verniero, Current N.J. Court Rules, comment 3 on R. 4:42-2 (2011)). Thus, "[i]nterlocutory orders are always subject to revision in the interests of justice." Id. at 536. "That entitlement to change a prior ruling in the interests of justice is what distinguishes an interlocutory order from a final judgment." Id. at 537. However, "the power to reconsider an interlocutory order should be exercised 'only for good cause shown and in the service of the ultimate goal of substantial justice.'" Ibid. (quoting Johnson, 220 N.J. Super. at 263-64). See Ford v. Weisman, 188 N.J. Super. 614, 619 (App. Div. 1983) (holding court "has complete 19 A-1132-16T4 power over its interlocutory orders and may revise them when it would be consonant with the interests of justice to do so"). Here, we do not fault the court because the defense attorneys expressly sought relief under Rule 4:50-1. Nonetheless, we are constrained to reverse and remand for reconsideration under the appropriate standard. Because of our conclusion, we need not address defendants' remaining arguments and take no position on the ultimate outcome of the case following the remand. Reversed and remanded for reconsideration consistent with this opinion. We do not retain jurisdiction. 20 A-1132-16T4

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Docket No.: a1527-16
Decided: 2018-07-05
Caption: EUGENE VIDI v. CUMBERLAND MUTUAL FIRE INSURANCE COMPANY
Status: unpublished
Summary:
PER CURIAM Plaintiffs Eugene Vidi and Fred Taylor appeal from a November 15, 2016 order granting summary judgment in favor of Defendant Cumberland Mutual Fire Insurance Company ("Cumberland Mutual"). The matter arises from a first-party insurance coverage dispute involving two separate losses that occurred in brief succession. The trial court granted summary judgment based on a finding that plaintiffs failed to cooperate, in breach of a condition precedent to recovery under the pertinent policy. We reverse. On or about February 1, 2014, plaintiffs' commercial building suffered a loss as a result of sewage backing up from a sewer/toilet drain in the floor of unit 21A. Plaintiffs immediately commenced remediation. On February 5, 2014, plaintiffs' building suffered a second loss, allegedly as a result of snow on the roof that melted and seeped into the building. In February 2014, plaintiffs filed a claim for damages for both losses with Cumberland Mutual as their commercial carrier. Plaintiffs contracted with Paul Yemm, a public adjuster, to handle their losses. Thereafter, Cumberland Mutual assigned an independent adjuster, Thomas H. Ottoson of Ottoson Adjusting and Consulting Group, Inc. ("Ottoson"), to adjust the claim. On February 19 or 20, 2014, Ottoson inspected plaintiffs' property. At the time of the inspection, plaintiffs had commenced mitigation as required by their policy. Defendant concedes that although the 2 A-1527-16T3 mitigation impaired somewhat its ability to assess the loss, the mitigation of the sewage was not a breach of the insured's duty to cooperate. The subject property is a strip store center with three commercial first floor units and a second floor apartment. A February 25, 2014 confidential Property Claim Report noted that at the time of the inspection, all three commercial units were vacant and unoccupied. Defendant Cumberland subsequently requested documents from plaintiffs to conduct its claim investigation. Specifically, Ottoson requested a copy of the lease agreements for the last known tenants on all four commercial spaces. Ottoson also requested that the two losses be separated and distinguished from one another, with estimates, photographs, and proofs of loss attributable to each loss presented. Finally, Ottoson requested that the insureds appear for a statement with regard to occupancy and the circumstances of the losses. After sending five letters without receiving any response, defendant denied both claims. Plaintiffs' policy under the CP 00 10 06 07 Building and Personal Property Coverage Form provides in relevant part: E. Loss conditions The following conditions apply in addition to the Common Policy Conditions and the Commercial Property Conditions. 3 A-1527-16T3 3. Duties In the Event of Loss or Damage a. You must see that the following are done in the event of loss or damage to Covered Property: (3) As soon as possible, give us a description of how, when and where the loss or damage occurred. (4) Take all reasonable steps to protect the Covered Property from further damage, and keep a record of your expenses necessary to protect the Covered Property, for consideration in the settlement of the claim. This will not increase the Limit of Insurance. However, we will not pay for any subsequent loss or damage resulting from a cause of loss that is not a Covered Cause of Loss. Also, if feasible, set the damaged property aside and in the best possible order for examination. (5) At our request, give us complete inventories of the damaged and undamaged property. Include quantities, costs, values and amount of loss claimed. (6) As often as may be reasonably required, permit us to inspect the property providing the loss or damage and examine your books and records. Also, permit us to take samples of damage and undamaged property for inspection, testing and analysis, and permit us to make copies from your books and records. (8) Cooperate with us in the investigation or settlement of the claim. Furthermore, plaintiffs' policy provides at the CP 00 90 07 88 Commercial Property Conditions form: 4 A-1527-16T3 D. LEGAL ACTION AGAINST US No one may bring a legal action against us under this Coverage Part unless: 1. There has been full compliance with all of the terms of this Coverage Part . . . . The plaintiffs' policy also provides in relevant part, at CP 00 10 06 07 Building and Personal Property Coverage Form: 6. Vacancy a. Description of Terms (1) As used in this Vacancy Condition, the term building and the term vacant have the meanings set forth in (1)(a) and (1)(b) below: (a) When this policy is issued to a tenant, and with respect to that tenant's interest in Covered Property, building means the unit or suite rented or leased to the tenant. Such building is vacant when it does not contain enough business personal property to conduct customary operations. (b) When this policy is issued to the owner or general lessee of a building, building mean the entire building. Such building is vacant unless 31% of its total square footage is: (i) Rented to a lessee or sublessee and used by the lessee or sublessee to conduct its customary operations; and/or (ii) Used by the building owner to conduct customary operations. (2) Buildings under construction or renovation are not considered to be vacant. b. Vacancy Provisions If the building where loss or damage occurs has been vacant for more than 60 consecutive days before that loss or damage occurs: (1) We will not pay for any loss or damage caused by any of the following even if they are Covered Causes of Loss: (a) Vandalism; 5 A-1527-16T3 (b) Sprinkler leakage, unless you have protected the system against freezing; (c) Building glass breakage; (d) Water damage; (e) Theft; or (f) Attempted theft. (2) with respect the Covered Causes of Loss other than those listed in b.(1)(a) through b.(1)(f) above, we will reduce the amount we would otherwise pay for the loss or damage by 15%. Based the adjuster's observation that the three commercial units were vacant at the time of the inspection, the carrier was understandably interested in finding out how long the units had been vacant, as that information may have impacted on the determination of what if any coverage was due for the losses. On July 21, 2014, having received no further communication from plaintiffs, Cumberland Mutual sent a letter denying coverage, citing a multitude of policy provisions, including the "condition precedent to suit" language, and the "insured's duties after a loss" section. Plaintiffs filed suit on July 6, 2015. After plaintiffs failed to respond to discovery requests, Cumberland Mutual filed a motion to dismiss pursuant to Rule 4:23-5(a)(1). On May 13, 2016, the court entered an order dismissing plaintiff's complaint without prejudice for failure to answer interrogatories. In response, plaintiffs provided a loss statement. The production 6 A-1527-16T3 was twenty-six months after the initial request for documents and information; twenty-two months after the claim was denied; and ten months after the complaint was filed. On June 14, 2016, a consent order to reinstate plaintiff's complaint was executed by plaintiff's counsel and counsel for Cumberland Mutual. On August 11, 2016, the court extended discovery for ninety days to September 20, 2016. On October 5, 2016, Cumberland Mutual filed a motion for summary judgment. Defendant's motion was granted without prejudice, in error, on November 4, 2016. On November 15, 2016, the court issued a corrected order dismissing the claim with prejudice. The trial court indicated that summary judgment was warranted because I think that the problem that the Court has here is that there hasn't been any evidence from the plaintiff that they've complied with the conditions of the policy to cooperate in the investigation. I've . . . nothing to view . . . in [the] light most favorable to the non-moving party other than a statement saying that we complied, which compliance was after suit was filed. Which the policy, I think is pretty clear and unambiguous, that you have to cooperate before you file suit. The record is just void of any evidence of compliance at all. So the Court has nothing to assess or even view in [the] light most favorable to the non-moving party. This appeal ensued. 7 A-1527-16T3 On appeal, plaintiffs argue that there were genuine issues of material fact concerning whether they willfully refused to provide the requested information to the defendant and whether the claim was properly denied. Plaintiffs contend these fact issues should have precluded the trial court's grant of summary judgment. On appeal from summary judgment orders, we use a de novo standard of review and apply the same standard employed by the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). Accordingly, we determine whether the moving parties have demonstrated that there are no genuine disputes as to any material facts and, if so, whether the facts, viewed in the light most favorable to the non-moving party, entitled the moving parties to judgment as a matter of law. R. 4:46-2(c); Davis, 219 N.J. at 405-06; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). This is a first-party breach of contract claim against plaintiff's carrier. In the first-party context, coverage may be forfeited upon a finding that there was a material and willful breach of the insured's duty to cooperate with the insurer's investigation that materially diluted the insurer's ability to evaluate the claim. DiFrancisco v. Chubb Ins. Co., 283 N.J. Super. 601, 612-13 (App. Div. 1995). An insured's duty to cooperate encompasses the obligation to appear for an examination under oath 8 A-1527-16T3 (EUO) if requested and to provide documentation verifying the loss. Id. at 611. We recognized in DiFrancisco that "delays in obtaining requested information frequently result in 'a material dilution of the insurer's rights.'" Ibid. DiFrancisco involved a claim for alleged theft of personal property. Under those facts, we held that due to the suspicious nature of the claim, the insured's willful refusal to provide personal financial documents was a material breach of the contract that materially diluted the insurance company's ability to investigate the claim. Accordingly, we affirmed the summary judgment dismissing the claim. In this case, there is no dispute that plaintiffs did not promptly respond to the insurance company's requests for documents including information about vacancies. However, the trial court made no findings on the issue whether plaintiffs' failure materially diluted the insurance company's ability to investigate the claim. Nor has defendant articulated in its brief or at oral argument how its rights were materially diluted by the admittedly long delay in obtaining the documents it sought. Instead, both the court and defendant rely solely on the fact that plaintiffs did not cooperate in the initial investigation of the claim. We find it troubling that the carrier waited so long to invoke the non-cooperation clause as a basis for dismissal. This lawsuit has 9 A-1527-16T3 been pending since July 6, 2015. After plaintiffs provided interrogatory answers, Cumberland Mutual consented to the reinstatement of plaintiff's complaint. At the request of the parties, the court extended discovery for ninety days to September 20, 2016. Depositions have been conducted and presumably, substantial legal fees have been incurred. It was not until October 5, 2016 that Cumberland Mutual filed its motion for summary judgment. It appears discovery has yielded sufficient information enabling Cumberland Mutual to argue that certain exclusions under 1 the policy apply. In the absence of any findings by the trial court that Cumberland Mutual's rights were materially diluted by plaintiffs' delay in producing documentation to verify the losses, we are constrained to reverse and remand for further proceedings. Reversed and remanded. We do not retain jurisdiction. 1 Cumberland Mutual's alternate grounds for summary judgment based on policy exclusions are preserved on remand as they were not addressed by the trial court. 10 A-1527-16T3

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Docket No.: a3002-16
Decided: 2018-07-05
Caption: DANELE STILL v. STATE-OPERATED SCHOOL DISTRICT OF THE CITY OF CAMDEN, CAMDEN COUNTY
Status: unpublished
Summary:
PER CURIAM The State Operated School District of the City of Camden (District) appeals from a final agency determination of the Commissioner of Education (Commissioner) affirming the decision of Administrative Law Judge (ALJ) Susan M. Scarola. The Commissioner concluded that the District violated Danele Still's tenure rights when it failed to place her in a tenured teaching position after terminating her position of lead educator. We agree and affirm. After serving as a third and fourth grade teacher for seven years, Still briefly left the District and was rehired as the technology coordinator. Still possessed the required standard teaching certificate for that position. The District's job description defined the technology coordinator job as a "tenured position" and required Still to provide "instructional support and assistance to staff members [to] integrat[e] technology into the curriculum." For the next fourteen years, Still served as the technology coordinator until the District abolished the position. She was then reassigned as a fifth grade teacher and a week later accepted the position of lead educator, a job she held for two years. Still obtained the required provisional principal certificate for that title. Two years later, the District informed Still that it would 2 A-3002-16T4 be terminating the lead educator position at the end of the academic year and she was not entitled to "bumping rights" or entitlements to other positions in the District. She challenged her termination by filing a certified petition with the Commissioner. Shortly thereafter, Still accepted a non- tenured position in the District as the manager of school operations. Still's counsel advised the District that her acceptance of that position was without prejudice to the tenure claims pleaded in the petition. The District moved to dismiss the petition on two discrete grounds. First, it contended that Still "did not accrue tenure under her elementary school teacher certificate due to her service in the abolished [t]echnology [c]oordinator position because it was a non-instructional position that required no classroom instruction commensurate with this certificate." In the alternative, the District maintained that Still relinquished any accrued tenure rights "when she accepted the [m]anager, [s]chool [o]perations position . . . a distinct non-tenured, non- certificated, non-teaching staff position." (emphasis added). The Commissioner transferred the case to the Office of Administrative Law as a contested matter. In her written decision, the ALJ concluded that pursuant to N.J.S.A. 18A:28-5, Still accrued tenure as a technology coordinator because she "worked in a 3 A-3002-16T4 position for which a teaching certificate was required, held the appropriate certificate, and served the requisite period of time."1 Relying on the plain language of the statute, ALJ Scarola held that "when [Still] acquired tenure as technology coordinator, she also acquired tenure in all positions for which she was qualified under her instructional certificate" and noted that "since [Still] held an elementary school endorsement, she earned tenure in all elementary teaching positions." ALJ Scarola also determined that a certified teaching position need not have an instruction component to qualify for tenure as the statute imposed no such requirement. Finally, ALJ Scarola concluded that Still's acceptance of the manager of school operations position did not relinquish her tenure rights because Still was improperly terminated, accepted the position without prejudice to her tenure claims and she had an obligation to mitigate damages. The District filed exceptions with the Commissioner. In addition to those arguments rejected by the ALJ, the District raised for the first time before the Commissioner an issue at the center of the appeal: that the position of technology coordinator is an "unrecognized" title pursuant to N.J.S.A. 18A:27-1, N.J.S.A 1 Because the District introduced factual matters outside the pleadings, ALJ Scarola converted the District's motion to dismiss and Still's opposition as a motion and cross-motion for summary decision. 4 A-3002-16T4 18A:27-4 and N.J.A.C. 6A:9B-5.5. As an unrecognized title, the District maintained that before Still could accrue tenure as the technology coordinator, the Executive County Superintendent (ECS) must approve the position and determine the necessary title and certification. According to the District, because there was no evidence of such approval, the ALJ erred in concluding Still accrued tenure. The Commissioner rejected all of the District's arguments and adopted ALJ Scarola's decision as the final determination. In denying the District's exceptions, the Commissioner was "[un]persuaded by the [District's] reliance on unreported decisional law[] from over thirty years ago." As to the requirement that the ECS approve the technology coordinator position, the Commissioner held it was "inconsequential" to a determination of Still's tenure rights as neither the tenure statute nor the enabling regulations condition the accrual of tenure on ECS approval. Further, the Commissioner concluded that even if such approval was necessary "holding [Still] accountable in any way for the Board's administrative failure would contravene the principles of fairness and equity." On appeal, the District claims the ALJ and Commissioner (1) improperly converted the motion to dismiss to a motion for summary decision and improvidently granted Still's cross-motion for 5 A-3002-16T4 summary decision in the presence of genuine and material fact disputes; (2) incorrectly concluded that Still accrued tenure in the unrecognized technology coordinator position that did not have an instructional component; and (3) failed to conclude that Still relinquished any accrued tenure rights when she accepted the manager of school operations position. Notably, the District raises for the first time on appeal that Still also waived her accrued tenure when she accepted the lead educator position. We begin with our standard of review. The test for granting a motion for summary decision before an administrative agency is largely the same as the test for granting motions for summary judgment under Rule 4:46-2. Contini v. Bd. of Educ., 286 N.J. Super. 106, 121 (App. Div. 1995). However, our review of an agency's summary decision differs slightly from our de novo review of a court's grant of summary judgment. Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004). Although we employ a de novo standard of review to an agency's determination that there are no genuine issues of material fact, we aim to "give substantial deference to the interpretation an agency gives to a statute that the agency is charged with enforcing." St. Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 15 (2005) (quoting Smith v. Director, Div. of Taxation, 108 N.J. 19, 25 (1987)). Generally, we will affirm an agency's decision unless "there is a clear showing that it is 6 A-3002-16T4 arbitrary, capricious, or unreasonable." J.B. v. N.J. State Parole Bd., 229 N.J. 21, 43 (2017) (quoting In re Herrmann, 192 N.J. 19, 27 (2007)). However, we are "in no way bound by [an] agency's interpretation of a statute or its determination of a strictly legal issue." L.A. v. Bd. of Educ., 221 N.J. 192, 204 (2015) (alteration in original) (quoting Dep't of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 302 (2011)). Based upon these standards, we are satisfied that the agency decision was reasonable and firmly based on the relevant statutory language and comports with common sense and logic. We affirm substantially for the reasons expressed in the ALJ's and Commissioner's written decisions. We add the following brief comments. A right to tenure accrues only upon compliance with specific statutory conditions. Platia v. Bd. of Educ., 434 N.J. Super. 382, 388 (App. Div. 2014). An employee must clearly prove the right to tenure. Canfield v. Bd. of Educ., 51 N.J. 400 (1968). Tenure laws should be liberally construed in light of their remedial purpose. Spiewak v. Bd. of Educ., 90 N.J. 63, 74 (1982). When interpreting a statute, our goal "is to ascertain the intent of the Legislature with reasonable certainty." No Illegal Points, Citizens for Drivers' Rights, Inc. v. Florio, 264 N.J. Super. 318, 323 (App. Div. 1993). The starting point of the 7 A-3002-16T4 inquiry "is the language of the statute itself," Marshall v. Klebanov, 188 N.J. 23, 36-37 (2006), and "[a]ll terms in a statute should be accorded their normal sense and significance," Velazquez v. Jiminez, 172 N.J. 240, 256 (2002). As the ALJ and Commissioner pointed out, the tenure statute is clear. In addition to the enumerated positions, "all teaching staff members employed . . . in the positions of teacher . . . and such other employees as are in positions which require them to hold appropriate certificates issued by the board of examiners . . . shall be under tenure." N.J.S.A. 18A:28-5(a) (emphasis added). Because it was undisputed that Still held an appropriate certificate for over fourteen years as the technology coordinator, she accrued tenure. Nothing in the statute or the enabling regulations supports the requirement urged by the District that the technology coordinator position must have an instruction component or be approved by the ECS before the holder of the position acquires tenure. The ALJ's and Commissioner's refusal to graft conditions onto the statute was eminently reasonable. Likewise, there was nothing arbitrary or capricious about the Commissioner's legal conclusion, grounded in fairness and equity, that even if ECS approval was necessary, it was the District’s responsibility, not Still's, to obtain it given Still had dutifully 8 A-3002-16T4 worked for over fourteen years as the technology coordinator, described by the District as a tenured position. The District's waiver arguments fare no better. It is well established that waiver is a "voluntary and intentional relinquishment of a known right" evidenced by a clear, unequivocal and decisive act from which an intention to relinquish the right can be based. Sroczynski v. Milek, 197 N.J. 36, 63-64 (2008) (quoting Knorr v. Smeal, 178 N.J. 169, 177 (2003)). A waiver is effective when a party possesses full knowledge of its legal rights and an intent to waive those rights. Sroczynski, 197 N.J. at 63. Also, the "intent to waive need not be stated expressly, provided the circumstances clearly show that the party knew of the right and then abandoned it, either by design or indifference." Knorr, 178 N.J. at 177. Before the ALJ, the District based its waiver argument only on Still's acceptance of the manager of school operations position. Although the ALJ correctly acknowledged that an employee can, under certain circumstances, waive accrued tenure by accepting a non-tenured position, here, Still had already accrued tenure and was improperly denied the exercise of those rights. Second, she promptly filed an appeal and, on the day she accepted a position as manager of school operations, her counsel wrote to the District specifically reserving all of her rights. Under these 9 A-3002-16T4 circumstances, it is clear that Still did not relinquish her rights "either by design or indifference." Ibid. The ALJ and Commissioner also reasonably concluded that Still's acceptance of a non-tenured position was appropriate to mitigate her damages. It can hardly be characterized as arbitrary or capricious for the ALJ and Commissioner to decide that an employee improperly removed from a tenured position may engage in other meaningful employment while the contested matter is resolved. J.B., 229 N.J. at 43. We decline to address the District's claim that Still abdicated her accrued tenure when she accepted the lead educator position as it was not raised before the ALJ or Commissioner. It is well settled that we will "not consider issues not raised below at an administrative hearing" unless they are of "public importance and will likely arise in the future." In re Stream Encroachment Permit, Permit No. 0200-04-0002.1 FHA, 402 N.J. Super. 587, 602 (App. Div. 2008); see also Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). This issue satisfies neither criterion.2 2 The District's reliance upon DiNapoli v. Bd. of Educ., 434 N.J. Super. 233 (App. Div. 2014) is misplaced as it is factually distinguishable. In DiNapoli, 434 N.J. Super. at 235, 239-40, the court reversed the finding of the Commissioner that the plaintiff retained tenure rights upon transferring from a secretarial tenured position, to a non-certified position, and then to a certified position. The court recognized that N.J.S.A. 18A:17-2 10 A-3002-16T4 To the extent we have not directly addressed the balance of the District's arguments, we find them to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. authorizes tenure to be maintained while an employee serves in secretarial employment. Id. at 239. However, the court held that the statute does not "reflect a legislative design to provide secretaries, who have relinquished their positions for non- secretarial certificated employment, the right to retain tenure." Ibid. In contrast, the court recognized that N.J.S.A. 18A:28-6 "afford[s] tenure retention rights to teachers . . . notwithstanding promotion or transfer." Id. at 240. First, as we have already held, Still's purported relinquishment of her accrued tenure as a result of her acceptance of the lead educator position was not raised before the ALJ or Commissioner. Further, we note that the record before the ALJ contains Still's unrebutted certified petition in which she states that she was promoted to lead educator and that the position required a principal certificate. Unlike the statute in DiNapoli, N.J.S.A. 18A:28-6 recognizes Still's right to retain tenure upon her acceptance of the lead educator position. See DiNapoli, 434 N.J. Super. at 240. 11 A-3002-16T4

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Docket No.: a3485-16
Decided: 2018-07-05
Caption: C.J. v. J.S.
Status: unpublished
Summary:
PER CURIAM Defendant J.S. appeals from a Family Part order denying his motion to delete his name from the Domestic Violence Central Registry (Registry). Having considered the record and defendant's arguments under the applicable legal principles, we affirm. I. The pertinent facts are not disputed. In April 2015, plaintiff C.J. filed a complaint alleging defendant committed the offenses of assault and criminal restraint against her, and seeking entry of a domestic violence restraining order pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The court entered a temporary domestic violence restraining order against defendant. Following a hearing, the court denied plaintiff's request for a final domestic violence restraining order (FRO). Less than a week later, the court granted plaintiff's request for reinstatement of the temporary domestic violence restraining order. The court then conducted a hearing, determined defendant committed an act of domestic violence as defined by the PDVA, N.J.S.A. 2C:25-19(a),1 and issued an FRO against defendant. Defendant appealed. While defendant's appeal was pending, plaintiff requested dismissal of the complaint and FRO. On November 5, 2015, the trial court granted plaintiff's request and entered an order vacating the FRO and dismissing the complaint. 1 The court determined defendant assaulted plaintiff. See N.J.S.A. 2C:25-19(a)(2) and N.J.S.A. 2C:12-1. 2 A-3485-16T1 Defendant then moved to dismiss his appeal, claiming it was moot because the FRO had been vacated and the complaint was dismissed. He also moved for an order deleting his name from the Registry. We entered an order granting defendant's motion to dismiss his appeal as moot, and remanded the matter for the trial court to consider defendant's motion to delete his name from the Registry. In support of his motion before the remand court, defendant submitted a certification claiming his name should be removed from the Registry because dismissal of the complaint rendered the court's findings he violated the PDVA a "nullity," and made it as though the complaint "never existed." After hearing argument from defendant's counsel,2 the court found dismissal of the complaint did not "completely erase the finding of domestic violence that was originally made by the [c]ourt," and "[t]he finding of domestic violence remains a part of the [c]ourt's record . . . ." The court determined N.J.S.A. 2C:35-34 required the Administrative Office of the Courts to "establish and maintain a central registry of all persons who have had domestic violence restraining orders entered against them," and there was no statutory authority permitting expungement of defendant's information from the 2 Plaintiff did not participate in the proceeding before the remand court and has not participated in this appeal. 3 A-3485-16T1 Registry. The court concluded defendant was not entitled to the requested deletion of his name from the Registry, and entered an order denying his motion. This appeal followed. On appeal, defendant makes the following arguments: POINT ONE The Trial Court Erred in Denying Defendant's Motion to Have His Name Removed from the Domestic Violence Central Registry. A. [The trial court's] denial of defendant's application to have his name removed from the Domestic Violence Central Registry denied defendant the right to due process. B. [The trial court's] ruling failed to recognize that the Order vacating the Final Restraining Order removed the statutory prerequisite for placing a person on the Central Registry in the first place. II. An FRO "is not merely an injunction entered in favor of one private litigant against the other." J.S. v. D.S., 448 N.J. Super. 17, 22 (App. Div. 2016) (citation omitted). Courts "have consistently recognized that the issuance of an FRO 'has serious consequences to the personal and professional lives of those who are found guilty of what the Legislature has characterized as a serious crime against society.'" Franklin v. Sloskey, 385 N.J. Super. 534, 541 (App. Div. 2006) (quoting Bresocnik v. Gallegos, 367 N.J. Super. 178, 181 (App. Div. 2004)); see also N.J.S.A. 4 A-3485-16T1 2C:25-18. "Once a final restraining order is entered, a defendant is subject to fingerprinting, N.J.S.A. 53:1-15, and the Administrative Office of the Courts [AOC] maintains a central registry of all persons who have had domestic violence restraining orders entered against them, N.J.S.A. 2C:25-34." Sloskey, 385 N.J. Super. at 541 (quoting Peterson v. Peterson, 374 N.J. Super. 116, 124 (App. Div. 2005)); see also D.N. v. K.M., 216 N.J. 587, 593 (2014) (Albin, J., dissenting) (cataloging the consequences under N.J.S.A. 2C:25-29(b) resulting from entry of a domestic violence FRO). Entry of an FRO also "imposes continuing obligations upon the Judiciary[.]" J.S., 448 N.J. Super. at 22. N.J.S.A. 2C:25-34 requires the Administrative Office of the Courts to establish and maintain a central registry of all persons who have had domestic violence restraining orders entered against them, all persons who have been charged with a crime or offense involving domestic violence, and all persons who have been charged with a violation of a court order involving domestic violence. [(Emphasis added).] "[T]he Legislature did not intend that every [FRO] . . . would be forever etched in judicial stone." A.B. v. L.M., 289 N.J. Super. 125, 128 (App. Div. 1996). "[I]t is not uncommon for domestic violence plaintiffs to seek dismissal of their actions either before or after entry of an FRO." J.S., 448 N.J. Super. 5 A-3485-16T1 at 21. The PDVA provides that "[u]pon good cause shown, any final order may be dissolved or modified upon application" to the same Family Part judge who issued the order or to one with access to "a complete record of the hearing or hearings on which the order was based." N.J.S.A. 2C:25-29(d) (emphasis added); see also G.M. v. C.V., 453 N.J. Super. 1, 12 (App. Div. 2018); T.M.S. v. W.C.P., 450 N.J. Super. 499, 502 (App. Div. 2017); Mann v. Mann, 270 N.J. Super. 269, 274 (App. Div. 1993); Carfagno v. Carfagno, 288 N.J. Super. 424, 433-34 (Ch. Div. 1995). Defendant argues he is entitled to the removal of his name from the Registry because the FRO was "vacated." He contends the court's vacation of the FRO eliminated the sole basis supporting his inclusion in the Registry and, as a result, he is entitled to his name's removal. We are not persuaded. An appellate court's primary purpose in construing a statute is to "discern the meaning and intent of the Legislature." State v. Gandhi, 201 N.J. 161, 176 (2010). "There is no more persuasive evidence of legislative intent than the words by which the Legislature undertook to express its purpose; therefore, we first look to the plain language of the statute." Perez v. Zagami, LLC, 218 N.J. 202, 209-10 (2014). "We ascribe to the statutory words their ordinary meaning and significance, and read them in context with related provisions so as to give sense to the legislation as 6 A-3485-16T1 a whole." DiProspero v. Penn, 183 N.J. 477, 492 (2005) (internal citation omitted). When the statutory language "clearly reveals the meaning of the statute, the court's sole function is to enforce the statute in accordance with those terms." McCann v. Clerk of Jersey City, 167 N.J. 311, 320 (2001) (quoting SASCO 1997 NI, LLC v. Zudkewich, 166 N.J. 579, 586 (2001)). The plain language of N.J.S.A. 2C:25-34 does not require or permit the removal of defendant's name from the Registry. The statute does not limit its application to defendants with active FRO's. See N.J.S.A. 2C:35-34. To the contrary, N.J.S.A. 2C:25- 34 expressly requires maintenance of "a central registry of all persons who have had domestic violence restraining orders entered against them[.]"3 (Emphasis added). Indeed, the Legislature provided for the dissolution of FRO's, N.J.S.A. 2C:25-29(d), and thus understood FRO's would be entered and later dissolved. See Berg v. Christie, 225 N.J. 245, 284 (2016) (alteration in original) (quoting Mahwah Twp. v. Bergen Cty. Bd. of Taxation, 98 N.J. 268, 279 (1985) ("The Legislature is presumed to have been aware of existing legislation[.]"). The 3 N.J.S.A. 2C:25-34 similarly requires entry in the Registry for "all persons who have been charged with a crime or offense involving domestic violence, and all persons who have been charged with a violation of a court order involving domestic violence[.]" (Emphasis added). 7 A-3485-16T1 Legislature did not provide for the removal of a defendant's name from the Registry following the dissolution of an FRO. Thus, under N.J.S.A. 2C:25-34's plain language, defendant must be included in the Registry — he is a "person who [has] had" an FRO entered against him. Defendant's designation in the Registry, however, will show that the FRO was dismissed.4 Defendant seeks refuge from N.J.S.A. 2C:25-34's plain language by asserting the court's use of the term "vacated" in the order dissolving the FRO should be interpreted as a declaration that the court's prior finding he committed an act of domestic violence is a nullity. This argument is untethered to a citation to any legal authority, and we find no support in the law or the 4 The State of New Jersey Domestic Violence Procedures Manual (the manual) (Oct. 9, 2008), was adopted by the Supreme Court to implement the PDVA, and "is intended to provide procedural and operational guidance for two groups with responsibility for handling domestic violence complaints in the state of New Jersey- judges and Judicial staff and law enforcement personnel." T.M.S., 450 N.J. Super. at 504 (quoting State of N.J. Domestic Violence Procedures Manual, at i). The manual requires different coding in the Registry for defendants with active FRO's and those for whom FROs have been dismissed. See State of N.J. Domestic Violence Procedures Manual, app. 22 at 26 (reprinting the June 2008 New Jersey Family Automated Case Tracking System DVCR Inquiry Guide). The manual requires that defendants with active FRO's be coded in the Registry as "ACTIVE/FRO Final restraining order in effect," and those defendants whose FRO's have been dismissed must be coded in the Registry as "DISMISSED No restraining order in effect." Ibid. The manual may be accessed at https://www.judiciary.state.nj.us/courts/assets/family/dvprcman. pdf. 8 A-3485-16T1 record for the contention. The order vacating the FRO constituted nothing more than a declaration the FRO was no longer effective. See N.J.S.A. 2C:25-29(d) (authorizing the dissolution of an FRO). The record is bereft of any evidence that the court's vacation of the FRO constituted a determination that the findings supporting the issuance of the FRO were a nullity.5 We reject defendant's argument to the contrary. Defendant's contention he is entitled to removal from the Registry is tantamount to a request for an expungement of the Registry record showing an FRO was issued against him. However, as our Supreme Court found in Shah v. Shah, 184 N.J. 125, 140 (2005), "a final restraining order may well have severe collateral consequences, including registration in a central registry," but "registration . . . is not subject to expungement." See also In re M.D.Z., 286 N.J. Super. 82, 87 (App. Div. 1995) (holding that the expungement statute does not extend to domestic violence complaints, including those in which the victim seeks restraints). 5 We do not address defendant's argument, founded on unpublished cases, that a defendant is entitled to removal from the Registry following a determination on appeal that an FRO should not have been entered in the first instance. See R. 1:36-3. This case does not involve a circumstance where a defendant requests removal from the Registry following the reversal of an FRO because there was insufficient evidence supporting the FRO's issuance. 9 A-3485-16T1 In sum, we find no merit in defendant's contention that the order vacating the FRO required the removal of his name from the Registry. His inclusion in the Registry is mandated because, although the FRO has been vacated, he is an individual who has had an FRO entered against him. N.J.S.A. 2C:25-34. III. Defendant claims he was denied procedural due process because his appeal from the FRO was dismissed as moot, and he was therefore precluded from challenging the sufficiency of the evidence supporting the determination plaintiff was entitled to the FRO. He contends that if his appeal had been successful, his name would have been removed from the Registry. He also asserts that maintenance of his name in the Registry will damage his reputation and interfere with his ability to obtain employment with law enforcement agencies. Defendant's procedural due process argument is without merit sufficient to warrant discussion in a written opinion. R. 2:11- 3(e)(1)(E). Nonetheless, we add the following comments. Procedural due process is founded on "the fundamental notion that litigants are entitled to notice and a meaningful opportunity to be heard." N.J. Div. of Youth & Family Servs. v. R.D., 207 N.J. 88, 119 (2011). However, "due process is flexible and calls for such procedural protections as the particular situation 10 A-3485-16T1 demands." Ibid. (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). Defendant's procedural due process argument is a limited one. He does not dispute that entry of the FRO and the concomitant placement of his name in the Registry as mandated by N.J.S.A. 2C:25-34 occurred after an adjudicatory hearing in which he participated and was represented by counsel. See, e.g., Matter of Allegations of Sexual Abuse at E. Park High Sch., 314 N.J. Super. 149, 159-66 (App. Div. 1998) (finding due process requires an administrative adjudicatory hearing subject to review by the courts prior to a defendant's inclusion in the Division of Youth and Family Service's central registry of child abusers). Rather, he contends only that his due process rights were violated by the dismissal of his appeal following the withdrawal of the complaint. The doctrine of judicial estoppel bars a party from asserting contradictory positions in the same or subsequent legal proceeding. Cummings v. Bahr, 295 N.J. Super. 374, 385 (App. Div. 1996). Invocation of the doctrine is appropriate "when a party advocates a position contrary to a position it successfully asserted in the same or a prior proceeding." Kimball Intern., Inc. v. Northfield Metal Prods., 334 N.J. Super. 596, 606 (App. Div. 2000) (citation omitted). "The purpose of the judicial estoppel doctrine is to protect 'the integrity of the judicial 11 A-3485-16T1 process.'" Ibid. (quoting Cummings, 295 N.J. Super. at 387). "[T]o be estopped [a party must] have convinced the court to accept its position in the earlier litigation." Id. at 606-07 (alteration in original) (quoting In re Cassidy, 892 F.2d 637, 641 (7th Cir. 1990)). "Judicial estoppel is an extraordinary remedy" that "should be invoked only to prevent a miscarriage of justice." Bhagat v. Bhagat, 217 N.J. 22, 37 (2014). We have not, "[h]owever, . . . hesitated to apply it when warranted." Ibid. In moving for dismissal of his initial appeal, defendant successfully argued that the vacation of the FRO and dismissal of the complaint rendered his appeal moot. Here, he makes the opposite argument, contending his appeal from the FRO was not moot and should not have been dismissed because the removal of his name from the Registry was dependent on the resolution of his appeal. Defendant further contends that the dismissal of the appeal he successfully requested resulted in a deprivation of his due process rights because it prevented him from challenging the trial court's issuance of the FRO. We are constrained to conclude defendant is judicially estopped from arguing his due process rights have been violated because he is unable to challenge the issuance of the FRO on appeal. Defendant's due process argument is founded on an 12 A-3485-16T1 inability to pursue his appeal from the FRO that is solely the product of his request — his successful motion to dismiss the appeal from the FRO in the first instance. In our view, to reward defendant's "inconsistent behavior" by considering an alleged due process violation based on a circumstance of his own creation would result in a "miscarriage of justice."6 See Kimball, 334 N.J. Super. at 608 (citation omitted). Affirmed. 6 We also observe that if there was error in the dismissal of the appeal, it was invited by defendant. See, e.g., State v. Williams, 219 N.J. 89, 101 (2014) ("The doctrine of invited error does not permit a defendant to pursue a strategy . . . and then when the strategy does not work out as planned, cry foul and win a new trial."). Moreover, defendant was not deprived of his due process right to appeal from the FRO because he successfully moved for the appeal's dismissal. 13 A-3485-16T1

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Docket No.: a3696-17
Decided: 2018-07-05
Caption: H&S CONSTRUCTION AND MECHANICAL, INC v. WESTFIELD PUBLIC SCHOOLS
Status: unpublished
Summary:
PER CURIAM Plaintiff, H&S Construction & Mechanical, Inc., the third lowest bidder for a project proposed by defendant Westfield Public Schools (Westfield),1 appeals from the trial court's April 13, 2018 order dismissing its complaint to set aside the award of a contract to defendant Your Way Construction, Inc. (Your Way), the lowest bidder.2 In its challenge, plaintiff argued that Westfield's waiver of Your Way's failure to include in its bid a "Certification of No Material Change of Circumstances" (CNMCC) from all of its subcontractors, violated public bidding laws. Westfield contended that Your Way's inclusion of a "Subcontractor Identification Statement" provided sufficient information to allow it to waive the alleged deficiency. On April 13, 2018, Judge Karen M. Cassidy determined that the alleged defect in the bid was 1 On February 8, 2018, Westfield publically advertised for bids for alterations and renovations at the school district's athletic field. 2 Defendant Applied Landscape Technologies, Inc. (Applied) chose not to participate in this appeal and did not file a brief. 2 A-3696-17T4 nonmaterial and waivable, and dismissed the complaint. We now affirm. The facts derived from the record are summarized as follows. Westfield's Notice to Bidders contained a statement advising bidders that it could "reject any and all bids or . . . waive informality in the bidding if it is in the interest of [Westfield] to do so." Its Bidding Information's Instructions to Bidders required bidders to be prequalified by the State, submit their "Notice of Classification[,]" and confirm "that there has been no material change in [its] qualification information[.]" It expressly provided that "[a]ny bid submitted . . . not including a copy of a valid and active Prequalification/Classification Certificate may be rejected as being nonresponsive to bid requirements." As to bidders' subcontractors, the instructions required that they be properly registered with the State.3 The instructions also stated that a bidder had to submit a "Proposal Guarantee" that would "be forfeited if [the] successful [b]idder 3 The Educational Facilities Construction and Financing Act, N.J.S.A. 18A:7G-1 to -48, requires bidders and certain subcontractors to be approved by the State for work on school projects. N.J.S.A. 18A:7G-37 addresses submissions that must be made by both bidders and subcontractors. See Brockwell & Carrington Contractors, Inc. v. Kearny Bd. of Educ., 420 N.J. Super. 273, 280 (App. Div. 2011) (holding that "subcontractors are 'firms' subject to the certification requirements of N.J.S.A. 18A:7G-37"). 3 A-3696-17T4 fails to execute the [a]greement between [Westfield] and [the c]ontractor . . . and [required that it] furnish the Performance Payment Bond[.]" Westfield's Bidder's Checklist required a CNMCC from both the bidder and its proposed subcontractors. It also required submission of a "Subcontractor Identification Statement" that identified each subcontractor's proposed trade and its State license number. Five bidders responded to the notice to bidders, and on March 20, 2018, Westfield awarded the contract to Your Way, whose bid of $3,025,100 was the lowest bid. Applied had the second lowest bid at $3,247,750, and plaintiff had the third lowest bid at $3,292,000. After plaintiff acquired a copy of Your Way's bid packet, it determined that it contained material deficiencies that should have rendered the bid void. Prior to Westfield's award of the contract, plaintiff challenged Your Way's bid in a March 8, 2018 letter to Westfield, arguing that it contained numerous deficiencies, including defective or omitted CNMCCs. Westfield responded by dismissing plaintiff's protest stating that its review of the bid found that it did not "'contain[] fatal defects' which render[ed it] legally 'non-responsive[.]'" Plaintiff filed its complaint seeking to prevent Westfield from awarding the contract to Your Way, alleging that Your Way's 4 A-3696-17T4 bid contained material deficiencies, and that plaintiff was entitled to the contract.4 Among other deficiencies, plaintiff specifically alleged that although Your Way provided the names of eight subcontractors, it failed to submit a CNMCC for three of the eight listed subcontractors as required by N.J.S.A. 18A:18A-32,5 a section of the Public School Contracts Law (PSCL), N.J.S.A. 18A:18A-1 to -59. During oral argument on April 13, 2018, before Judge Cassidy, plaintiff argued that the CNMCC was required by Westfield's bid specifications and N.J.S.A. 18A:18A-32. As a result, Your Way's 4 Plaintiff also challenged Applied's bid, first in its protest letter to Westfield and again in its complaint. The issues involving Applied are not relevant to our determination in this case, especially in light of Applied's decision to not participate and our upholding of the bid award to Your Way. 5 The statute states: No person shall be qualified to bid on any public work contract with the board of education, the entire cost whereof will exceed $20,000.00, who shall not have submitted a statement as required by N.J.S.A. 18A:18A-28 within a period of one year preceding the date of opening of bids for such contract. Every bidder shall submit with his bid an affidavit that subsequent to the latest such statement submitted by him there has been no material adverse change in his qualification information except as set forth in said affidavit. [N.J.S.A. 18A:18A-32 (emphasis added).] 5 A-3696-17T4 omission rendered its bid "invalid" preventing Westfield from determining whether "it's a waivable defect because it's a material[, i]ncurable defect on its face[.]" Citing to the Supreme Court's opinion in Hillside v Sternin, 25 N.J. 317 (1957), counsel argued that, as a required document, the failure to submit the CNMCC could not be waived and without it, the bid should not have been accepted. Quoting from our decision in Bodies by Lembo, Inc. v. County of Middlesex, 286 N.J. Super. 298, 304 (App. Div. 1996), counsel contended that by allowing Westfield to waive Your Way's omission, "[t]he conditions and specifications [did not] apply equally to all prospective bidders, [preventing] there [from being] a . . . common standard of competition" as required in public bidding. At the conclusion of oral argument, Judge Cassidy placed her decision on the record. She disagreed with plaintiff's contentions and held that the alleged defect in Your Way's bid was nonmaterial and waivable for the reasons expressed in Tec Electric, Inc. v. Franklin Lakes Board of Education, 284 N.J. Super. 480 (Law Div. 1995).6 The judge initially recognized that, as Hillside, 25 N.J. 6 In Tec Electric, the Law Division concluded that a bidder's failure to include in its bid submission a "Prequalification Affidavit" that included a CNMCC was a nonmaterial, waivable defect. 284 N.J. Super. at 488. It reasoned that waiving the defect "would [not] deprive the municipality of its assurance that 6 A-3696-17T4 at 322 required, "[t]he conditions and specifications of request for proposals must apply equally to all prospective bidders, otherwise there is no common standard of competition." After the judge evidently determined that the submission of the CNMCC was not mandatory, she applied the two-prong materiality test for local government contracts7 established in Township of River Vale v. R.J. Longo Construction Company, 127 N.J. Super. 207, 216 (Law Div. 1974) and adopted by the Supreme Court in Meadowbrook Carting Company v. Borough of Island Heights & Consolidated Waste Services, Inc., 138 N.J. 307, 315 (1994). The judge found that the first prong of the test was satisfied because the contract will be entered into, performed and guaranteed according to its specified requirements," id. at 484, because "[f]ailure to proceed with the execution of the contract work . . . would have subjected [the bidder] to severe financial and legal ramifications." Id. at 487. Addressing the integrity of the public bidding process, the court found that "the failure to submit a Prequalification Affidavit offered [the bidder] no opportunity adversely to affect competitive bidding[,]" nor did it "give rise to 'favoritism, improvidence, extravagance and corruption'" because the failure to include the affidavit did not "and could not influence the amount of . . . any other contractor's bid." Ibid. (citations omitted). 7 Although a separate statutory framework applies to school boards entering into these contracts, the PSCL "was enacted to impose similar requirements on the purchasing procedures utilized by local boards of education to those required by the Local Public Contracts Law[ (LPCL), N.J.S.A. 40A:11-1 to -51]." F. S. D. Industr, Inc. v. Bd. of Educ. of the City of Paterson, 166 N.J. Super. 330, 334 (App. Div. 1979); Tec Elec., 284 N.J. Super. at 483. 7 A-3696-17T4 [t]he omission of [the CNMCCs] by some of the subcontractors could reasonably be waived because the contractor personally certified that it was qualified and able to complete the job. If a subcontractor were unable to complete its portion of the job, Westfield could look to the contractor for a remedy. She explained: there was an assurance by the overall submission by Your Way that they in no way were going to leave the citizens of Westfield unprotected, that they did have safeguards that were provided in the certifications that were submitted as an overall project and that Westfield in looking at this document and the bid as a whole felt satisfied that these omissions were not material and, therefore, as they are permitted to do, could waive . . . those particular provisions. Addressing the second prong, she stated: As to the second prong of the materiality test, these subcontractor's failure to submit the certification did not influence the amount of Your Way's overall bid, nor is there any evidence that waiving the certification requirement would place the bidders on uneven footing. If Westfield could waive the lack of certification for Your Way, they could equally waive these certifications for any other applicant. Therefore, . . . the failure . . . to submit the CNMCC is immaterial. Judge Cassidy entered an order on the same day denying plaintiff's application for injunctive relief and dismissing its complaint. This appeal followed. 8 A-3696-17T4 Plaintiff argues on appeal that "[c]ontrary to the trial court's determination, Your Way's bid was . . . fatally defective by reason of its failure to comply with [N.J.S.A. 18A:18A-32], the Instructions to Bidders and the Bidder's Checklist." According to plaintiff, the court erred in finding that the deficiency in Your Way's bid was nonmaterial and waivable and its "decision effectively emasculated a mandatory statutory requirement in N.J.S.A. 18A:18A-32[.]" Quoting from Bodies by Lembo, 286 N.J. Super. at 304, which stated that "[b]id proposals, to be accepted, must not materially deviate from the specifications set forth by the contracting agency[,]" plaintiff contends the trial court incorrectly determined the omission of the CNMCC was waivable and nonmaterial because of "the mandatory language contained in N.J.S.A. 18A:18AA-32[.]" We disagree. Our standard of review of a trial court's review of a board of education's action is, at the outset, guided by our recognition that in the context of public bidding the "function of [the c]ourt is to preserve the integrity of the competitive bidding process and to prevent the misapplication of public funds." Marvec Constr. Corp. v. Twp. of Belleville, 254 N.J. Super. 282, 288 (Law Div. 1992); see also Barrick v. State, 218 N.J. 247, 261 (2014); In re Jasper Seating Co., Inc., 406 N.J. Super. 213, 226 (App. Div. 2009). 9 A-3696-17T4 A governmental entity's decision to award a public contract is "reviewed under the ordinary standard governing judicial review of administrative agency final actions." Barrick, 218 N.J. at 259 (citing In re Protest of Award of On-Line Games Prod. & Operation Servs. Contract, 279 N.J. Super. 566, 653 (App. Div. 1995)); see also Marvec Constr. Corp., 254 N.J. Super. at 288. The reviewing court will not reverse the entity's decision unless it is demonstrated to be "arbitrary, capricious, or unreasonable, or . . . not supported by substantial credible evidence in the record as a whole." Barrick, 218 N.J. at 259 (quoting In re Stallworth, 208 N.J. 182, 194 (2011)). Applying these guiding principles, we disagree with plaintiff's contentions and affirm substantially for the reasons stated by Judge Cassidy in her thoughtful and comprehensive oral decision. We add only the following comments. Plaintiff's argument that N.J.S.A. 18A:18A-32 requires bidders to submit subcontractors' CNMCCs with their bids is "without sufficient merit to warrant discussion in a written opinion[.]" R. 2:11-3(e)(1)(E). Suffice it to say, the failure to include in a bid statutorily mandated documents is non-waivable. See N.J.S.A. 40A:11-23.1 (addressing submission requirements under the LPCL); see also P & A Constr., Inc. v. Twp. of Woodbridge, 365 N.J. Super. 164, 177 (App. Div. 2004). If not statutorily 10 A-3696-17T4 mandated, the determination of whether the defects are minor or inconsequential and therefore waivable, or material and non- waivable is subject to the two-part River Vale test. P & A Constr., 365 N.J. Super. at 177. Here, the statute's plain language contains no requirement for subcontractors to submit a CNMCC and "courts should not rewrite plainly worded statutes." Lippman v. Ethicon, Inc., 222 N.J. 362, 388 (2015). "As we have frequently noted, '[w]e cannot write in an additional qualification which the Legislature pointedly omitted in drafting its own enactment.'" Vitale v. Schering- Plough Corp., 231 N.J. 234, 253 (2017) (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)). Had the Legislature intended that subcontractors' CNMCCs be submitted with bids for public school contracts, it clearly would have incorporated that requirement into the statute. See, e.g., N.J.S.A. 18A:18A-18(b) (stating circumstances when a bid must identify a bidder's subcontractors). Similarly, there was no evidence in the record about the bid documents that demonstrated the substantive materiality of the omitted CNMCCs. There was no language in the bid proposal making the submission mandatory nor was there notice provided to the bidders that the consequences for non-compliance was automatic rejection. It also did not contain any clear and unequivocal 11 A-3696-17T4 statement that explained the purpose for which the documents were requested. For example, there was no provision in any of the bid documents that the submission of the CNMCCs was mandatory and non- waivable, or that the failure to include them with the bid package could result in an automatic rejection, as was the case for "a [bidder's] valid and active Prequalification/Classification Certificate[.]" Thus, contrary to plaintiff's assertion, there was no "transform[ation of a] mandatory requirement in [Westfield's] specifications into a polite request." L. Pucillo & Sons, Inc. v. New Milford, 73 N.J. 349, 356 (1977). Judge Cassidy therefore properly conducted the correct analysis to determine whether the defect as alleged by plaintiff was waivable. Finally, to the extent that plaintiff argued to us that Westfield's waiver of strict compliance regarding the CNMCCs gave rise to a successful bidder's right to abandon the project or narrow the pool of possible bidders, we find no evidence in the record supporting either contention and conclude that they are equally without merit. We only observe that a successful bidder's obligation to enter a contract was secured through a bid bond, and there was no demonstration that the failure to provide the CNMCCs with a bid disturbed the level playing field required in public bidding to preserve "the overriding interest in insuring the integrity of the bidding process[, which] is more important than 12 A-3696-17T4 the isolated savings at stake." Star of the Sea Concrete Corp. v. Lucas Bros., Inc., 370 N.J. Super. 60, 73 (2004) (quoting Meadowbrook, 138 N.J. at 313). Affirmed. 13 A-3696-17T4

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Docket No.: a3707-16
Decided: 2018-07-05
Caption: IN THE MATTER OF THE CIVIL COMMITMENT OF A.E.F.
Status: unpublished
Summary:
PER CURIAM A.E.F. appeals from the March 1, 2017 order of the Law Division, continuing his commitment to the Special Treatment Unit (STU), the secure facility designated for the custody, care and treatment of sexually violent predators pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. For the reasons that follow, we affirm. We need not recount A.E.F.'s prior criminal history or the circumstances relating to his criminal convictions as they are not in dispute and are set forth at length in our prior opinions, In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 477-79 (App. Div. 2005), and In re Civil Commitment of A.E.F., No. A-5327-06 (App. Div. Jan. 2, 2008). Suffice it to say that A.E.F. has an extensive criminal history consisting of non-sexual and sexual violent offenses. In 2003, he was committed to the STU under the SVPA after serving his sentence, and his commitment has been continued following periodic review hearings. The most recent review, which is the subject of this appeal, was conducted by Judge James F. Mulvihill on March 1, 2017. At the hearing, the State relied on the unrefuted expert testimony of psychiatrist Dr. Roger Harris, who opined that A.E.F.'s risk to sexually reoffend remained high. Harris' testimony was consistent with a report he prepared after reviewing previous psychiatric evaluations, STU treatment records, and related documents. Harris did not rely on his own examination of A.E.F. because he refused to meet with the doctor. Further, a Treatment Progress Review Committee (TPRC) report, authored by Dr. Paul Dudek on January 20, 2017, was admitted into evidence, without 2 A-3707-16T5 objection.1 Various treatment notes and other records were also admitted into evidence. Harris concluded that A.E.F., born in 1951, met the criteria of a sexually violent predator and was "highly likely to sexually reoffend if placed in a less restrictive setting" because he has not mitigated his risk. Based on A.E.F.'s "pervasive pattern of disregard and the violation of others[,]" his "[f]ailure to conform to social norms" resulting in repeated arrests, his "[d]eceitfulness," his "impulsiv[eness,]" "irritability[,] aggressiveness[,]" "reckless disregard for the safety of . . . others[,]" "lack of remorse[,]" and "indifferen[ce] to" hurting others, Harris diagnosed A.E.F. with antisocial personality disorder. He testified that A.E.F.'s score of five on the Static-99R,2 indicating an above average risk to sexually reoffend, "was not a full estimate for his risk to sexually 1 The parties stipulated to the report being admitted into evidence without the testimony of Dudek. 2 "The Static-99 is an actuarial test used to estimate the probability of sexually violent recidivism in adult males previously convicted of sexually violent offenses." In re Civil Commitment of R.F., 217 N.J. 152, 164 n.9 (2014) (citation omitted). Our Supreme "Court has explained that actuarial information, including the Static-99, is 'simply a factor to consider, weigh, or even reject, when engaging in the necessary factfinding under the SVPA.'" Ibid. (quoting In re Commitment of R.S., 173 N.J. 134, 137 (2002)). 3 A-3707-16T5 reoffend in that it does not address dynamic and psychological factors which have been shown to place individuals at risk, beyond what is measured by actuarial instruments." Harris also diagnosed A.E.F. with other specified paraphilic disorder, coercion, because of his repeated behavior of "forc[ing] women to submit to his sexual demands against their will. He has engaged in this behavior in spite of arrests, convictions and ultimately loss of his liberty. He has repeatedly broken into homes and sexually assaulted women in these homes." Further, Harris found evidence of A.E.F. having alcohol use disorder in a controlled environment, cannabis use disorder in a controlled environment, and opioid use disorder in a controlled environment. He testified that due to A.E.F.'s substance abuse problems, "whatever ability he has to resist his impulsivity around sexual aggression or just aggression, will further be eroded leaving him very vulnerable to act on either aggression or sexual aggression." Harris described A.E.F. as being "very resistant to significant aspects of treatment." According to the doctor, A.E.F. has a history of "chronic back" problems that "necessitated hospitalization and surgery" and a result he "has refused to participate in [medical] treatment unless he is given opiates." He opined that although A.E.F. "has medical problems . . . [he] 4 A-3707-16T5 do[es] not think [these] medical problems are an obstacle to treatment or mitigate [A.E.F.'s] risk to sexually reoffend." He testified "the way [A.E.F.] applies himself and the way he uses himself is the problem, not his medical conditions, which have interrupted his treatment and are a blip in his treatment[.]" In addition, the TPRC that evaluated A.E.F. concluded in its report that he "is an individual who has yet to significantly lower his risk of recidivism to warrant recommendation of discharge and continues to be highly likely to engage in acts of sexual violence." Recounting his treatment progress, the TPRC observed that A.E.F. "had repeatedly touted his recovery from substance abuse but when confronted about his drug seeking behaviors for pain medications in 2015 he began a protracted and gradually escalating period of withdrawal from treatment that continues unabated today." He is "currently on Treatment Refusal Status" and was previously "on Treatment Probation Status after a clinically significant period of time in 2015 where he did not make any presentations . . ., was inconsistent in his attendance . . ., and was unwilling to address verbal warnings . . . that he could be placed on treatment refusal." The diagnoses presented in the report were that of "Other Specified Paraphilic Disorder (non-consent)[;] Cannabis Use Disorder, In a Controlled Environment[;] Opioid Use Disorder, In 5 A-3707-16T5 a Controlled Environment[;] Stimulant Use Disorder, In a Controlled Environment[;] Other Hallucinogen Use Disorder In a Controlled Environment[; and] Other Specified Personality Disorder, with Antisocial features, severe[.]" A.E.F.'s "Other Specified Paraphilic Disorder (non-consent) indicates that [he] experiences recurrent, intense sexual urges, fantasies, or behaviors that involve unusual objects, activities, or situations that cause clinically significant distress or impairment in social, occupational, or other important areas of functioning." "The specifier of non-consent is satisfied by [A.E.F.'s] history of self-reported . . . fantasies about raping others. Moreover, he has acted out on these fantasies by forcing sexual activity upon others in many of his crimes." His "substance abuse related disorders describe [A.E.F.'s] historical pattern of using marijuana, barbiturates, hallucinogens, stimulants, and opioids." Last, "[t]he diagnosis of Other Specified Personality Disorder refers to [A.E.F.'s] pattern of impulsivity, recklessness, and disregard for the rights and well-being of others." The report noted that A.E.F. "was administered the Psychopathy Checklist-Revised, Second Edition (PCR-R)[, which] provides a dimensional score that represents the extent to which . . . a given individual is judged to match a 'prototypical psychopath' [and A.E.F.] received a score of [thirty-one.]" "An 6 A-3707-16T5 individual who receives a score of [thirty] or above meets the diagnostic research criteria for psychopathy." According to the report, A.E.F. also received a score of five on the Static-99R, two points less than earlier tests, which was attributable to him turning sixty years old. A.E.F. testified regarding the interruption in his treatment, explaining that his medical conditions have caused him to miss "[s]everal" treatment groups. He detailed the extent of his health problems, which included "extreme back pain" and stomach problems, both of which required surgery. Despite these conditions causing him to miss his treatment groups, A.E.F. testified that he "did the best [he] could." In an oral opinion rendered on March 1, 2017, Judge Mulvihill articulated the applicable legal principles, recounted the testimony of Harris and A.E.F., and detailed A.E.F.'s treatment record at the STU. Although he found both witnesses credible, he determined "[t]hat there's clear and convincing evidence that [A.E.F.] has been convicted of very serious sexual violent offenses," which bring him within the purview the SVPA; that he "continues to suffer from a mental abnormality and personality disorder that does not spontaneously remit and affects him cognitively," and that if released, "he’s highly likely to sexually reoffend." On the same date, Judge Mulvihill entered a 7 A-3707-16T5 memorializing order continuing A.E.F.'s commitment, and this appeal followed. On appeal,3 A.E.F. argues that Judge Mulvihill erred in concluding that the State met its burden of proof because the judge "did not properly weigh the evidence[.]" Specifically, he asserts that the judge "did not properly consider both A.E.F.’s physical conditions as well as his advanced age in . . . determining whether or not he was highly likely to commit acts of sexual violence." He also argued that the judge "should not have found [Harris] credible because he did not give proper consideration" to these issues. We reject these arguments and affirm. "The scope of appellate review of a commitment determination is extremely narrow. The judges who hear SVPA cases generally are 'specialists' and 'their expertise in the subject' is entitled to 'special deference.'" R.F., 217 N.J. at 174 (citations omitted). "The SVPA authorizes the involuntary commitment of an individual believed to be a 'sexually violent predator' as defined by the Act. The definition of 'sexually violent predator' requires proof of past sexually violent behavior through its precondition 3 By agreement of the parties and with the permission of the court, the appeal was argued without briefs. We summarize the points raised by appellant based upon the presentation at oral argument. 8 A-3707-16T5 of a 'sexually violent offense' (which, in [A.E.F]'s case, is not disputed)." In re Commitment of W.Z., 173 N.J. 109, 127 (2002) (citation omitted). It also requires that the person "suffer[] from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." Ibid. (quoting N.J.S.A. 30:4-27.26). "[T]he mental condition must affect an individual's ability to control his or her sexually harmful conduct." Ibid. "Inherent in some diagnoses will be sexual compulsivity (i.e., paraphilia). But, the diagnosis of each sexually violent predator susceptible to civil commitment need not include a diagnosis of 'sexual compulsion.'" Id. at 129. The same standard that supports the initial involuntary commitment of a sex offender under the Act applies to the annual review hearing. See In re Civil Commitment of E.D., 353 N.J. Super. 450, 452-53 (App. Div. 2002). In either case, "the State must prove by clear and convincing evidence that the individual has serious difficulty controlling his or her harmful sexual behavior such that it is highly likely that the person will not control his or her sexually violent behavior and will reoffend." W.Z., 173 N.J. at 133-34. 9 A-3707-16T5 As the fact finder, while "[a] trial judge is 'not required to accept all or any part of [an] expert opinion[,]'" he or she may "place[] decisive weight on [the] expert." R.F., 217 N.J. at 156, 174 (second alteration in original) (citation omitted). Furthermore, "an appellate court should not modify a trial court's determination either to commit or release an individual unless 'the record reveals a clear mistake.'" Id. at 175 (quoting D.C., 146 N.J. at 58). We find no clear mistake on this record. We are satisfied that the record amply supports Judge Mulvihill's decision. Moreover, A.E.F. never disputed that he was convicted of committing the requisite criminal offenses or that he suffers from antisocial personality disorder and substance abuse disorders, a necessary predicate for continued commitment under the SVPA. See In re Civil Commitment of D.Y., 218 N.J. 359, 380 (2014). His only contentions were that his medical issues interfered with his ability to continue treatment and that his age and physical conditions made it less likely that he would reoffend. Based on credible expert testimony, the judge determined that, without treatment, even if attributable to his medical issues, A.E.F.'s disorders, past behavior and lack of treatment progress demonstrated that he was highly likely to sexually reoffend. The judge's determination, to which we owe the "utmost deference" and 10 A-3707-16T5 may modify only where there is a clear abuse of discretion, In re J.P., 339 N.J. Super. 443, 459 (2001), was proper. Affirmed. 11 A-3707-16T5

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Docket No.: a4653-16
Decided: 2018-07-05
Caption: VAHEKARA JELIAN v. PARMINDER SINGH TALWAR
Status: unpublished
Summary:
PER CURIAM Plaintiffs appeal from a May 25, 2017 final judgment determining the fair market rental value of premises leased by defendant. We affirm. Plaintiffs own a gasoline station in Hackensack, New Jersey. In 2005, plaintiffs leased the gasoline pumps to defendant. The lease agreement was for ten years with a monthly rental payment of $2500, and an option to renew for an additional ten years. The lease agreement stated that in the event of defendant's decision to renew, "[a]ll terms and conditions of this [l]ease agreement shall remain the same, except that the annual rent shall [be] adjusted to reflect prevailing market rates in the year of renewal, and increased each year thereafter by three . . . percent per year." Defendant provided plaintiffs with timely and proper notice of his intention to renew the lease. Plaintiffs notified defendant that the fair market rental value was $7500 per month, and defendant disagreed. The parties were unable to resolve their dispute, resulting in plaintiffs filing their verified complaint. The judge conducted a bench trial, and both parties provided expert testimony concerning the fair market rental value of the gasoline pumps. The experts agreed that the fair market rental value should be between twenty-five and thirty-five percent of the gross profit from gasoline sold at the pumps. The judge determined the monthly profit to be between $17,000 and $18,000 based upon defendant's testimony. The judge found that based upon the annual three percent escalation clause that a reasonable fair market 2 A-4653-16T1 rental value was twenty-five percent of the gross profits, equivalent to $4500 per month. Plaintiffs contend that the judge erred in determining the reasonable fair market rental value of the gasoline pumps, and that the fair market rental value is higher than $4500 per month. Our standard of review requires deference to a judge's findings "unless they are so wholly unsupportable as to result in a denial of justice." Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div.), aff'd o.b., 33 N.J. 78 (1960); see also Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We conclude there exists sufficient credible evidence in the record to support the judge's findings. The judge determined the fair market rental value using a formula proposed by both parties' expert witnesses. The experts disputed the figures to be used in the formula, and the judge instead used the figures provided by defendant's "candid[]" testimony. The judge applied the experts' formula, and determined that the reasonable fair market rental value to be twenty-five percent of the gross profits because it was not "commercially- reasonable to make the rent in year one at the high[-]end or even mid-end . . . because the rent is going to increase by a little more than [thirty] percent" due to the escalation clause. 3 A-4653-16T1 Plaintiffs failed to evince that the judge erred in his determination of the fair market rental value. The judge determined the amount with the formula supplied by both parties' experts and the figures provided by defendant's testimony, which the judge determined to be credible. Affirmed. 4 A-4653-16T1

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Docket No.: a4984-16
Decided: 2018-07-05
Caption: STATE OF NEW JERSEY v. CHRISTOPHER MOON
Status: unpublished
Summary:
PER CURIAM Defendant was indicted and charged with a host of offenses. He eventually pleaded guilty to a single count of first-degree racketeering conspiracy, N.J.S.A. 2C:41-2(d), pursuant to a plea agreement, and the remaining twenty counts were dismissed; the State also agreed to recommend a ten-year prison term subject to the No Early Release Act. Defendant was sentenced to a ten-year prison term subject to NERA in September 2014. Defendant appealed, arguing the sentence was excessive. The matter was placed on an excessive sentencing oral argument calendar. Appellate defense counsel argued the sentencing judge engaged in double-counting by finding aggravating factors three, six, and nine, and that the presentence report was inaccurate because it referred to offenses committed prior to defendant's birth. The State then argued the sentence could not be deemed excessive because defendant "got the absolute minimum sentence that was allowable for the crime to which he" pleaded guilty. We rejected defendant's arguments and affirmed. State v. Moon, No. A-1498-14 (App. Div. Mar. 10, 2015). The Supreme Court denied defendant's petition for certification. 222 N.J. 19 (2015). In October 2015, defendant filed a post-conviction relief (PCR) petition, arguing his trial attorney was ineffective because: he should have argued NERA was inapplicable; he did not object to the judge's alleged double-counting of aggravating factors; and he failed to move for a sentence one degree lower. Judge Leslie-Ann M. Justus did not conduct an evidentiary hearing; 2 A-4984-16T2 instead, after hearing oral argument and in light of the facts presented by the record, she concluded by way of a thorough oral decision that defendant failed to present a prima facie case of ineffectiveness. Defendant appeals, arguing: I. THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION. II. THE SENTENCE IS ILLEGAL. III. THE DEFENDANT IS ENTITLED TO AN EVIDENTIARY HEARING. We find insufficient merit in these arguments to warrant further discussion in a written opinion, R. 2:11-3(e)(2), and affirm substantially for the reasons set forth by Judge Justus in her well-reasoned oral decision. Affirmed. 3 A-4984-16T2

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Docket No.: a5043-16
Decided: 2018-07-05
Caption: PIDOR DUONG v. DALE STEIN
Status: unpublished
Summary:
PER CURIAM This appeal requires consideration of a mortgage contingency clause in a real estate contract and whether buyers, who obtained a mortgage commitment but failed to meet all the lender's conditions, was entitled to rescission of the contract. Because the factual record leaves no doubt that buyers' failure to comply with all the lender's conditions was not an impediment to closing, we affirm the motion judge's entry of summary judgment in favor of sellers. This action was commenced in special civil part by plaintiffs Pidor Duong and Sophy Sun (buyers) against defendants Dale and Ellen Stein (sellers) for a return of a $3000 deposit made pursuant to the contract buyers executed, on September 5, 2016, to purchase from sellers a Cherry Hill residence for $295,000. Sellers filed a counterclaim, asserting their entitlement not only to the deposit but also to damages caused by buyers' failure to close. The parties cross-moved for summary judgment. The motion judge denied buyers' motion and granted sellers' motion. The judge determined that sellers were entitled to the $3000 deposit and $12,000 in damages. Buyers appeal, arguing: I. . . . GENUINE ISSUES OF MATERIAL FACTS EXISTED WHICH SHOULD HAVE PRECLUDED SUMMARY JUDGMENT (Not Raised Below). II. THE COURT ERRONEOUSLY ASSUMED THAT [BUYERS] AND THEIR BANK COLLUDED TO EXIT THE CONTRACT WITHOUT MERIT NOR [sic] PROOF. 2 A-5043-16T2 III. THE COURT'S APPLICATION OF THE MALUS[1] HOLDING WAS INAPPOSITE GIVEN THE NATURE OF THE CONTRACT. IV. THE COURT SHOULD LOOK TO FARREL v. JANIK[2] . . . OR DAVIS v. STRAZZA[3] . . . FOR HOLDING. We find insufficient merit in these arguments to warrant further discussion. R. 2:11-3(e)(1)(E). We add only the following few comments. The relevant facts were not in dispute. The contract was conditioned upon buyers obtaining a $236,000 mortgage and imposed on buyers the duty to "supply all necessary information" to the proposed lender. That same provision required that buyers deliver – no later than October 3, 2016 – a written mortgage commitment, while allowing a five-day extension of that deadline. That clause also called for rescission and return of buyers' deposit if buyers were unable to obtain the mortgage commitment. That clause, however, also declared that if: the failure to obtain the mortgage commitment is the result of [buyers'] bad faith, negligence, intentional conduct or failure to diligently pursue the mortgage application, then [buyers would not be entitled to the deposit] without the written authorization of [sellers]. 1 Malus v. Hager, 312 N.J. Super. 483 (App. Div. 1998). 2 Farrell v. Janik, 225 N.J. Super. 282 (Law Div. 1988). 3 Davis v. Strazza, 380 N.J. Super. 476 (App. Div. 2005). 3 A-5043-16T2 The contract contained the buyers' representation that they had "all necessary cash assets . . . to complete the [c]losing." It was also undisputed that the parties agreed to a brief extension, and the buyers provided a written mortgage commitment on October 6, 2016. The dispute that inspires the issues before us concerns the fact that two days before the October 17 closing, the lender withdrew the mortgage commitment; its notice advised this action was taken because the buyers lacked sufficient funds to close. According to buyers' moving certification, the lender's requirements about the source of certain deposited cash was not met because that information was in Cambodia,4 even though this 4 Buyer Sophy Sun certified that the lender determined her account was "short $10,463" to close the transaction, causing her last- minute communications with her father in Cambodia. She explained that: 15. On October 12, 2016, my father gifted me $20,000 which was wired into my bank account. Those funds were to be used to cover the $10,643. 16. I notified the Bank of the $20,000 gift. 17. On October 13, 2016, at 6:46 a.m., the day before the Bank required satisfaction of the conditions to the mortgage commitment, the Bank requested additional information to document the $20,000 gift, including, but not limited to, a gift letter which had to be 4 A-5043-16T2 condition had been made known to buyers when the lender issued its mortgage commitment. In seeking summary judgment, sellers asserted that the lender's condition was met prior to the closing, as buyers' moving papers acknowledged, and that sellers expressed a willingness to extend the time for closing until October 31. There is no dispute that the buyers declined this extension offer, which would have provided additional time to secure the lender's reinstatement of the commitment, claiming only – without explanation – "it would not benefit either party." Sellers contend the buyers simply chose not to proceed further – that they were concerned about the cost of flood insurance – and attempted to justify their withdrawal from the transaction by the loss of the mortgage commitment. signed by my father and my father's account statements from his bank in Cambodia. 18. At the time of the Bank's request, my father was home in Cambodia, which is eleven (11) hours ahead of Eastern Standard Time. By the time I received the Bank's request, it was after business hours in Cambodia. 19. As a result, I was unable to provide the requested documents before October 14, 2016. 20. On October 14, 2016, the Bank sent me a Notice of Action Taken which denied our loan application. [Citations omitted.] 5 A-5043-16T2 There was also no dispute that, on October 28, 2016, buyers contracted to purchase another Cherry Hill residence and obtained a mortgage loan from the same lender. That transaction closed on November 18, 2016. Meanwhile, sellers put their residence back on the market but were unable to sell their property until May 2017. They also realized approximately $17,000 less than they would have had buyers not failed to go to closing in October 2016. The judge found no relevant factual dispute and concluded that buyers' failure to close the transaction after securing the mortgage commitment warranted a judgment in sellers' favor. He also determined that sellers were entitled to damages, as evidenced by the undisputed fact – among other things – that they realized approximately $17,000 less from a later transaction; the deposit was forfeited to sellers and $12,000 damages were awarded because the special civil part jurisdictional limit permitted no greater award. See R. 6:1-2(a)(1). We agree that sellers were entitled to summary judgment and affirm in all respects. Buyers provided no sworn statements that would create a genuine issue of fact regarding their failure to close. They rely only on a contention that the lender's withdrawal of the commitment because of the absence of sourcing of a monetary gift justified their withdrawal from the transaction. Even if a good faith failure to meet all the conditions of the mortgage 6 A-5043-16T2 commitment was a cause for excusing their failure to close – we have held to the contrary, Malus, 312 N.J. Super. at 487 (concluding that an "unknowing and blameless seller" was entitled to damages when a buyer lost a mortgage commitment because he lost his employment two days before closing) – the record one-sidedly reveals that buyers' attempts to justify their failure to meet one of those conditions – all others having been satisfied – was not the real basis for their failure to close. Instead, as the record reveals, even if this was a real concern and not a "dog-ate-my- homework" excuse as it very much appears, the sellers provided buyers with an opportunity to meet that condition and buyers simply chose to walk away and purchase some other property rather than honor their promise to buy. Even at the summary-judgment stage, the buyers' actions here could not be equated with good faith. Affirmed. 7 A-5043-16T2

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Docket No.: a5233-16
Decided: 2018-07-05
Caption: IN THE MATTER OF THE CIVIL COMMITMENT OF R.E.B.
Status: unpublished
Summary:
PER CURIAM R.E.B. appeals from the June 7, 2017 order of the Law Division continuing his commitment to the Special Treatment Unit (STU), the secure facility designated for the custody, care, and treatment of sexually violent predators, pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. For the reasons that follow, we affirm. We need not recount R.E.B.'s prior criminal history or the events that followed his original admission to the STU in 2004. They are recounted at length in our prior opinions, In re Civil Commitment of R.Z.B.,1 392 N.J. Super. 22 (App. Div. 2007), In re Civil Commitment of R.E.B., No. A-3270-12 (App. Div. Nov. 25, 2013), and In re Civil Commitment of R.E.B., No. A-1613-11 (App. Div. May 20, 2014). Suffice it to say that R.E.B., born in October 1948, has an extensive criminal history in both state and federal courts, including three separate instances of sexual offenses against minors dating back to the early 1980s and spanning twelve years. His convictions include sexual assault as well as the production, possession, and sale of child pornography. His last conviction occurred in 1995, and in 2005, he was committed to the STU under the SVPA on parole violations following his release from federal custody. At the civil commitment review hearing before Judge James F. Mulvihill on May 18 and May 31, 2017, the State presented expert testimony from psychiatrist Michal Kunz, M.D., and psychologist Debra L. Roquet, Psy. D. R.E.B. presented the expert testimony of psychologist Gianni Pirelli, Ph. D. The experts' reports, 1 R.E.B. is referenced as "R.Z.B." in the 2007 appeal. 2 A-5233-16T5 various treatment notes, and other records were also admitted into evidence. After interviewing R.E.B. on May 4, 2017, and reviewing his previous psychiatric evaluations, STU treatment records, prison and police records, Dr. Kunz concluded that R.E.B. met the criteria of a sexually violent predator and was highly likely to engage in acts of sexual violence in the foreseeable future. Based on R.E.B.'s sexual arousal from pre-, peri-, and post-pubescent males between the ages of nine and eighteen, Dr. Kunz diagnosed R.E.B. with "pedophilic disorder, sexually attracted to male[s], non- exclusive"; "other specified paraphilic disorder with a focus on teenagers, . . . sometimes referred to as hebephilia"; and "other . . . specified personality disorder with antisocial and narcissistic traits." According to Dr. Kunz, these disorders do not spontaneously remit and affect R.E.B. "predominantly in the . . . cognitive sphere of his ability to . . . recognize his feelings," making him predisposed to sexually reoffend. Dr. Kunz acknowledged that treatment could control the impulses these disorders cause, but, in his opinion, R.E.B. had not had enough treatment to adequately control his impulses if released at this time. Dr. Kunz noted that R.E.B.'s "sexual offending history" showed an "escalation," beginning "with two boys whom he just 3 A-5233-16T5 encountered in the street," progressing to "him actually bringing . . . victims into his home," and ultimately evolving into "this elaborate well-organized effort to lure a number of boys into the residence by a variety of activities . . . that [were] likely to entice boys." Dr. Kunz observed that R.E.B.'s offense history showed "a really strong sexually deviant attraction to boys" that he maintained and acted on "despite punishment." Dr. Kunz also noted that R.E.B.'s "deceitful" and "sophisticated" manner of grooming and gaining access to the victims was "consistent[] with his personality structure." Although R.E.B.'s most recent PCL-R2 score was 24.2, which was at the high end of the moderate range for psychopathic deviance, given his prior higher scores, Dr. Kunz was still of the opinion that R.E.B.'s history of antisocial behaviors corresponded with his antisocial personality characteristics and was indicative of psychopathic traits. Dr. Kunz noted that R.E.B. passed his most recent Deviant Arousal Polygraph Examination, and that 2 According to Dr. Kunz, the PCL-R, or psychopathy checklist revised, provides a dimensional score that represents the extent to which an individual is judged to match the prototypical psychopath. Higher scores indicate a closer match and, presumably, a greater confidence that the individual is a psychopath. An individual who receives a score of thirty or above meets the diagnostic criteria for psychopathy. Previously, R.E.B. had scores of 29.5 and 30.5. 4 A-5233-16T5 despite reporting being aroused by teen and adult males, he showed no arousal to any deviant or non-deviant stimuli during a 2016 penile plethysmograph (PPG).3 However, Dr. Kunz pointed out that the test results were not valid because R.E.B. described the "setup" as "creepy," resulting in the suppression of "whatever sexual arousal there may have been." As to his intellectual and educational background, R.E.B.'s IQ score was in the superior range, and Dr. Kunz confirmed that R.E.B. had a Bachelor's degree in Psychology from New York University. As to substance abuse history, R.E.B. had "some history of marijuana abuse," but Dr. Kunz did not "find a persistent pattern" to make "it particularly significant." Dr. Kunz gave R.E.B. a Static-99R4 score of three, indicating an average risk for re-offense. However, in classifying R.E.B.'s 3 According to Dr. Kunz, a PPG is a test to determine a person's arousal whereby "a device is placed on a person's penis," and then the person is "exposed to . . . sexually arousing stimuli," and "the device measures the arousal by . . . measuring the changes in the . . . circumference of the penis." 4 "The Static-99 is an actuarial test used to estimate the probability of sexually violent recidivism in adult males previously convicted of sexually violent offenses." In re Civil Commitment of R.F., 217 N.J. 152, 164 n.9 (2014) (citing Andrew Harris et al., Static-99 Coding Rules Revised-2003 5 (2003)). Our Supreme Court "has explained that actuarial information, including the Static-99, is 'simply a factor to consider, weigh, or even reject, when engaging in the necessary factfinding under the SVPA.'" Ibid. (quoting In re Commitment of R.S., 173 N.J. 134, 137 (2002)). 5 A-5233-16T5 risk to sexually reoffend in the foreseeable future as "high," Dr. Kunz considered other dynamic risk factors such as R.E.B.'s: "[s]exual preference for children"; "psychopathy"; "lack of concern for others"; "intimacy deficits"; "emotional identification with children"; reliance on sex as a coping mechanism; "attitudes tolerant of sexual assault"; "dropping out of [past] sexual offender treatment"; "violation of [parole]"; and "cooperation with supervision." Dr. Kunz "consider[ed] mitigating factors in three areas, namely age, disabling medical conditions and treatment." However, inasmuch as R.E.B.'s offenses did not involve physical force, Dr. Kunz did not believe that R.E.B.'s current age of sixty-eight would "impede . . . his ability to access[,] . . . groom[,] or manipulate his victims." In addition, Dr. Kunz found R.E.B. was "fit and healthy in spite of the fact that he suffered a heart attack" in 2011, which resulted in the placement of several stents. Further, Dr. Kunz noted that while R.E.B. "has made progress in treatment[,] . . . he still need[ed] to work more in treatment to fully mitigate his risk." Dr. Kunz recounted R.E.B.'s treatment prior to coming to the STU as well as his treatment progress at the STU. Prior to arriving at the STU, R.E.B. received sex offender treatment on three different occasions. Despite receiving treatment, he 6 A-5233-16T5 continued to "pursue[] his deviant sexual interests," which Dr. Kunz interpreted as a sign of "the strength of his sexual arousal as well as the sort of resistance to interventions that could help him reduce his risk to reoffend." Although R.E.B. had entered the second half of the more advanced part of the core phase of treatment at the STU and despite his intelligence and education level, Dr. Kunz opined that R.E.B.'s treatment progress had been hampered by "his personality traits" that "continue to . . . create risk[s] for him" and "interfere with his treatment and his ability to engage in treatment." As a result, the treatment has not had "the desired effect." Specifically, Dr. Kunz explained that repeated themes in the treatment team reports showed that R.E.B. did not demonstrate a full command over his sexual assault cycle, had "interpersonal problems" with other residents, and became "defensive" when "given feedback by his peers or by his treaters." Dr. Kunz found this significant because R.E.B. would have to rely on his peers and treaters once discharged and would therefore have to find a way "to interact" without this "ongoing" antagonism. As to R.E.B.'s understanding of his sexual assault cycle, Dr. Kunz explained that, for a long time, R.E.B. would not "acknowledge" his "arousal to underage individuals" and had "interpret[ed] his arousal to teenagers as essentially stemming from his . . . internal conflict 7 A-5233-16T5 over his homosexuality." Dr. Kunz again attributed R.E.B.'s resistance to "his personality traits," and to his "rigidity" or "difficulty" recognizing his feelings. Dr. Roquet, a member of the STU's Treatment Progress Review Committee (TPRC), conducted an annual review of R.E.B.'s progress in treatment by interviewing R.E.B. and reviewing the prior treatment notes and reports. Dr. Roquet agreed with Dr. Kunz's diagnosis and concluded that R.E.B. suffered from a mental abnormality or personality disorder that predisposed him to sexually reoffending. She characterized R.E.B. as "highly likely to sexually reoffend" in the foreseeable future "without a high level of external controls." Dr. Roquet opined that R.E.B. required continued "confinement to the STU in order to mitigate that risk." Referring to R.E.B.'s PCL-R and Static99-R scores to which Dr. Kunz had previously testified,5 Dr. Roquet elaborated that "the primary concern" was R.E.B.'s "sexual pathology," which was 5 Dr. Roquet also administered the Stable-2007, a risk assessment instrument "developed to assess change in intermediate term risk status, [and] assessment needs, and [to] help predict recidivism in sexual offenders." R.E.B.'s Stable-2007 score was "[twelve] out of a possible [twenty-six] points," which was a "high" score for the presence of dynamic factors associated with recidivism. Together, the Stable-2007 and the Static-99R "provide [a] composite assessment of [R.E.B.'s] risk/needs," and "place[d] him in the [m]oderate-[h]igh category for supervision and intervention." 8 A-5233-16T5 "likely to continue to drive his behavior in the community, and . . . would be further enhanced or supported by problematic antisocial and psychopathic personality characteristics despite his age." Dr. Roquet pointed out that R.E.B.'s sexual preoccupation manifested itself in his continued reporting of "ongoing pop-ups" and in his "strong arousal to young boys." Dr. Roquet reconciled R.E.B.'s continuous sexual thoughts about minors with passing the polygraph by explaining that the polygraph "has to do with behavior, . . . specifically with masturbation," so while R.E.B. "[may] not be engaging in the behavior," which was "positive," it did not "mean that the thoughts [were] . . . not present." According to Dr. Roquet, while some of the "characteristics associated with psychopathy and antisocial personality disorder . . . start to diminish after age [forty]," there were other characteristics still present in R.E.B. that would continue to influence him. Dr. Roquet also testified that, although R.E.B.'s last offense occurred in 1993 when he was forty-five years old, the "length of time since the last offense" did "not have much of an impact . . . on the risk assessment" because "he [had] been confined for most of that time." While other treatment team members believed R.E.B. was "making some progress in addressing some of the dynamic risk 9 A-5233-16T5 factors," Dr. Roquet was of the opinion that, as long as R.E.B. continued to resist "dealing head-on with the pedophilic arousal," he would not be able to "integrate" and "use the kind of arousal management strategies and relapse prevention strategies . . . necessary for him to be safe in the community . . . and . . . not reoffend." Dr. Roquet was troubled by treatment team reports that R.E.B. "distance[d] himself from his deviant arousal," "present[ed] himself as more sexually benign than his history indicate[d]," and "romanticize[d] his relationship with underage males" by "refer[ing] to his victims as friends" and "confounding sexual exploitation with helping." Pointing to specific discrepancies between the official record and R.E.B.'s account of his sexual offending history, Dr. Roquet emphasized that R.E.B. needed "to shed light on his offense-related arousal with no minimization of past or present arousal" in order to make "substantial . . . progress in this problem area." Dr. Pirelli conducted a forensic psychological evaluation of R.E.B. at his attorney's request, which included two interviews with R.E.B. Although Dr. Pirelli agreed with the diagnosis of the State's experts and acknowledged that R.E.B.'s symptoms were "not curable," he opined that the conditions did not impair R.E.B.'s volitional capacity because "he [did] have control over his behavior." Thus, Dr. Pirelli assessed R.E.B.'s risk of re-offense 10 A-5233-16T5 if released into the community as "less than highly likely" and recommended a "structured . . . discharge and treatment plan" with "external monitoring." While acknowledging that R.E.B. "has a number of risk factors," Dr. Pirelli believed R.E.B. was "highly likely to comply with the plan," was "much more equipped than his peers," and, in many ways, had the "ability to actually be successful in the community." To support his opinion, Dr. Pirelli administered the Risk for Sexual Violence Protocol (RSVP), "a structured professional judgment" measure, which includes twenty-two "empirically supported sexual violence risk factors across five domains": sexual violence history, psychological adjustment, mental disorder, social adjustment, and manageability. Dr. Pirelli disagreed that R.E.B. was resistant to treatment and believed he had made "significant treatment gains over the years" and would not "benefit from being [at the STU] any longer." Dr. Pirelli explained that the STU provided a "cognitive behavioral treatment" program to effect behavioral change, rather than "personality change." Thus, in Dr. Pirelli's opinion, R.E.B.'s personality characteristics limited his amenability to further progress in treatment there. Dr. Pirelli believed R.E.B. had achieved behavioral change, and "the things that [were] getting him hung up at this point" were not directly related to sexual violence 11 A-5233-16T5 risk. For example, Dr. Pirelli attributed R.E.B.'s interpersonal conflicts to his superior intelligence and frustrations from interacting with less intelligent peers and staff. In an oral opinion rendered on June 7, 2017, Judge Mulvihill found by "clear and convincing evidence" that R.E.B. was "convicted of very serious sexually violent offenses"; suffers from "pedophilia and other specified personality disorder, [and] paraphilia in terms of . . . hebephilia," which "affect him emotionally, cognitively, [and] volitionally"; has "serious difficulty controlling his sexually violent behavior"; and was "[h]ighly likely at this time to sexually reoffend" if released. The judge found the State's experts "very credible" and made findings consistent with their testimony and reports. Although he also found Dr. Pirelli's testimony credible, he credited the contrary opinion of the State's experts regarding R.E.B.'s current risk to reoffend. Judge Mulvihill recounted R.E.B.'s extensive criminal history and acknowledged that the offenses occurred over twenty-four years earlier, but found "[s]ignificance in [the] number of victims, the age range, the persistence of offending, [and] the variety of sexual activities." Additionally, the judge detailed R.E.B.'s extensive treatment history and acknowledged that he had received a "significant amount of treatment," had "completed all treatment 12 A-5233-16T5 modules," and "made a lot of progress," but this did "not mitigate his risk completely" or lower it to "less than highly likely." The judge explained that despite being active in treatment, having superior intelligence, and understanding the concepts, R.E.B. "still struggle[d] with his deviant arousal" and "[did] not have full command of his sexual assault cycle." The judge stated that R.E.B. had to work on ensuring that he understood that it was "not okay in any way, shape or form to act upon his deviancy towards underage boys." Judge Mulvihill entered a memorializing order continuing R.E.B.'s commitment, and this appeal followed. On appeal,6 R.E.B. argues Judge Mulvihill misapplied the applicable principles in concluding that he continued to pose a risk and was highly likely to reoffend sexually if released. In support, R.E.B. points to his advanced age and medical condition, and to the length of time he has spent at the STU with good institutional behavior. He claims the judge ignored the lack of recent evidence of sexual deviancy and only relied on evidence from his dated convictions. We reject these arguments and affirm. "The scope of appellate review of a commitment determination is extremely narrow." R.F., 217 N.J. at 174 (quoting In re D.C., 6 By agreement of the parties and with the permission of the court, the appeal was argued without briefs. We summarize the points raised by appellant based upon the presentation at oral argument. 13 A-5233-16T5 146 N.J. 31, 58 (1996)). "The judges who hear SVPA cases generally are 'specialists' and 'their expertise in the subject' is entitled to 'special deference.'" Ibid. (quoting In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 226 (App. Div. 2007)). "The SVPA authorizes the involuntary commitment of an individual believed to be a 'sexually violent predator' as defined by the Act." In re Commitment of W.Z., 173 N.J. 109, 127 (2002) (citing N.J.S.A. 30:4-27.28). "The definition of 'sexually violent predator' requires proof of past sexually violent behavior through its precondition of a 'sexually violent offense.'" Ibid. It also requires that the person "suffer[] from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." Ibid. (quoting N.J.S.A. 30:4-27.26). "[T]he mental condition must affect an individual's ability to control his or her sexually harmful conduct." Ibid. "Inherent in some diagnoses will be sexual compulsivity (i.e., paraphilia)[,] [b]ut, the diagnosis of each sexually violent predator susceptible to civil commitment need not include a diagnosis of 'sexual compulsion.'" Id. at 129. The same standard that supports the initial involuntary commitment of a sex offender under the Act applies to the annual 14 A-5233-16T5 review hearing. In re Civil Commitment of E.D., 183 N.J. 536, 551 (2005). In either case, "the State must prove by clear and convincing evidence that the individual has serious difficulty controlling his or her harmful sexual behavior such that it is highly likely that the person will not control his or her sexually violent behavior and will reoffend." Ibid. (quoting W.Z., 173 N.J. at 133-34). As the fact finder, a "trial judge is 'not required to accept all or any part of [an] expert opinion[].'" R.F., 217 N.J. at 174 (alterations in original) (quoting D.C., 146 N.J. at 61). Furthermore, "an appellate court should not modify a trial court's determination either to commit or release an individual unless 'the record reveals a clear mistake.'" Id. at 175 (quoting D.C., 146 N.J. at 58). We find no clear mistake on this record. We are satisfied that the record amply supports Judge Mulvihill's finding that R.E.B. suffers from pedophilia, other specified paraphilic disorder, and other specified personality disorder, a necessary predicate for continued commitment under the SVPA. See, e.g., In re Civil Commitment of D.Y., 218 N.J. 359, 381 (2014). Based on credible expert testimony, the judge determined that R.E.B.'s disorders, past behavior and treatment progress demonstrated that he was highly likely to engage in acts of sexual violence unless 15 A-5233-16T5 confined. The judge's determination, to which we owe the "utmost deference" and may modify only where there is a clear abuse of discretion, In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (quoting State v. Fields, 77 N.J. 282,311 (1978)), was proper. Affirmed. 16 A-5233-16T5

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