Posted Date | Name of Case (Docket Number) | Type |
---|---|---|
Feb. 11, 2019 |
MARIA I. TIRPAK VS. BOROUGH OF POINT PLEASANT BEACH BOARD OF ADJUSTMENT, ET AL. (L-2918-17, OCEAN COUNTY AND STATEWIDE) (CONSOLIDATED)
(A-5088-17T1/A-5147-17T1)
Defendants, the Borough of Point Pleasant Beach and the Borough's Zoning Board of Adjustment, appeal the trial court's May 3, 2018 decision in this land use case. The court declared invalid and unenforceable a variance provision and associated deed restriction that requires one unit of the subject two-family dwelling to be occupied by the owner and not rented to a third-party tenant. These owner-occupancy limitations were imposed by the Board in 1999 as a condition of approving a variance allowing plaintiff Maria I. Tirpak and her now-deceased husband to raze their then-existing dwelling and construct a new two-family dwelling in a zone limited to single-family residences. The Board also required the Tirpaks to memorialize the condition as a recorded deed restriction. The trial court concluded the variance condition and deed restriction impermissibly discriminated against renters, and wrongfully predicated the allowable use of the property upon the identities of its occupants. On appeal, defendants argue the trial court should have dismissed plaintiff's challenge to the restrictions as untimely. They further contend the trial court misapplied the law and principles of equity in nullifying the variance condition and deed restriction. This appellate court rejects defendants' arguments, substantially for the sound reasons expressed in Assignment Judge Marlene Ford's May 3, 2018 written decision, which is published in tandem with this opinion at ___ N.J. Super. ___ (App. Div. 2019). |
Appellate |
Feb. 11, 2019 |
NEW JERSEY LAND TITLE ASSOCIATION VS. DANA RONE, COUNTY REGISTER OF THE COUNTY OF ESSEX (L-2077-17, HUDSON COUNTY AND STATEWIDE)
(A-5028-16T1)
The issue presented on this appeal is whether a county register or clerk has the authority to charge a "convenience fee" or surcharge for the electronic filing of documents concerning real property. The Legislature has prescribed the fees a county register or clerk may charge for the filing of documents, and a convenience fee is not one of the legislatively authorized fees. Accordingly, the court holds that a county register or clerk cannot impose such a fee. The court therefore reverses a June 23, 2017 order granting summary judgment to the Essex County Register of Deeds and Mortgages (Essex Register) and dismissing the complaint of plaintiff, the New Jersey Land Title Association (Association). The court remands with direction that the Association be granted partial summary judgment on its claim to enjoin, prospectively, the Essex Register from collecting the convenience fee. On remand, the trial court will also address the Association's claim for disgorgement of the fees previously paid. |
Appellate |
Feb. 7, 2019 |
STATE OF NEW JERSEY v. W.A.
(17-08-00506)
This case presents the court with an issue of first impression in New Jersey. Namely, whether, after a defendant has been detained pretrial, a later defense attack on the state’s detention hearing proffer can be sufficient to reopen the detention hearing. On June 6, 2017, the trial court ordered defendant detained pending trial. The thrust of defendant’s motion to reopen the detention hearing attacks the state’s detention hearing proffer related to probable cause. The court ultimately held that a defendant who has been detained pretrial cannot attack the initial detention decision by seeking to undermine the state’s probable cause proffer. Unless some new information would create serious doubt about the state’s initial proffer, and only where a grand jury has not yet handed up an indictment, would the court consider disturbing an initial finding of probable cause. |
Trial |
Feb. 7, 2019 |
STATE OF NEW JERSEY v. E.R.
(15-08-02549)
The State sought to introduce into evidence the statements made by the mother of the victim to a physician providing treatment to her child. The court held that N.J.R.E. 803(c)(4) permits the admission into evidence not only of statements made by a patient to a physician for purposes of obtaining medical treatment, but also statements made by others to a physician for the purpose of providing medical treatment where sufficient indicia of reliability exists. |
Trial |
Feb. 7, 2019 |
STATE OF NEW JERSEY VS. ZIA BERISHA (09-09-1595, HUDSON COUNTY AND STATEWIDE)
(A-2496-16T1)
Defendant was charged with first-degree murder but convicted of aggravated manslaughter. He argued in his direct appeal that the trial judge should have severed his charges from those brought against a co-defendant and that, even though not requested, the trial judge should have sua sponte instructed the jury on self-defense. In rejecting his severance argument, the court recognized a self-defense theory was "presented" and defendant received its benefit when the jury convicted him "of aggravated manslaughter rather than first-degree murder." But, in rejecting the other argument, the court held that the judge was not required to instruct on self-defense because "the defense of self-defense would likely have been unsuccessful." In appealing the later denial of his post-conviction relief petition after an evidentiary hearing, defendant argued his trial counsel was ineffective for failing to request jury instructions on self-defense. In reversing and remanding for a new trial, the court held that trial counsel should have requested those instructions and defendant was prejudiced as a result. Even though, in the direct appeal, the court inconsistently considered the role self-defense played at trial, the court in this post-conviction relief appeal concluded that the evidence supported a self-defense theory and appropriate jury instructions might have provided benefits for defendant even greater than he received when the jury found him guilty on a lesser-included offense of first-degree murder. |
Appellate |
Feb. 6, 2019 |
LEWIS STEIN VS. DEPARTMENT OF LAW & PUBLIC SAFETY, NEW JERSEY RACING COMMISSION (NEW JERSEY RACING COMMISSION)
(A-5589-16T3)
The Off-Track and Account Wagering Act, N.J.S.A. 5:5-127 to -160, does not permit persons with accounts in New Jersey's account-wagering system (AWS) from placing wagers with the AWS while located outside the State, and this restriction on wagering does not violate the Commerce Clause of the United States Constitution. |
Appellate |
Feb. 6, 2019 |
STATE OF NEW JERSEY IN THE INTEREST OF C.F. STATE OF NEW JERSEY IN THE INTEREST OF A.G. STATE OF NEW JERSEY IN THE INTEREST OF T.S. (FJ-12-0124-19, FJ-12-1196-18, AND FJ-12-1197-18, MIDDLESEX COUNTY AND STATEWIDE) (CONSOLIDATED) (RECORD IMPOUNDED)
(A-0326-18T3/A-0329-18T3/A-0330-18T3)
In State in the Interest of N.P., 453 N.J. Super. 480 (App. Div. 2018), the court determined a Family Part judge may not divert juvenile complaints from court action without first affording the State an opportunity to be heard. Following that decision, the Family Part judge duly noticed the State of its intention to divert complaints filed against C.F., A.G., and T.S., but conducted the hearings without providing notice to the juveniles. In these three consolidated appeals, the court reverses the trial judge's orders. Because the matters were heard in open court, due process mandates notice to the juveniles, affording them the opportunity to be heard and to consult with counsel before their complaints are diverted from court action. |
Appellate |
Feb. 5, 2019 |
MARGARET FATTORE VS. FRANK FATTORE (FM-11-0224-97, MERCER COUNTY AND STATEWIDE)
(A-3727-16T1)
In Mansell v. Mansell, 490 U.S. 581 (1989), the United States Supreme Court held the Uniformed Services Former Spouses Protection Act, 10 U.S.C. § 1408, federally preempted state family courts from equitably distributing a disability retirement pension in a divorce. In 2017, the Court in Howell v. Howell, __ U.S. __, 137 S. Ct. 1400 (2017), held family courts are federally preempted from indemnifying a spouse for the inability to distribute disability benefits, but could take such a contingency into consideration by other means, including modifying or awarding alimony. In this case, the court reverses the trial court's order, which required the spouse receiving disability benefits to indemnify the payee spouse by paying her a hypothetical value of her share of the pension, because indemnification was preempted by Howell. However, the court holds conversion of the pension into a disability benefit was a substantial and permanent change in circumstances, which invalidated the parties' alimony waiver, and accordingly reverses the trial court's order denying alimony for consideration of such an award. |
Appellate |
Feb. 5, 2019 |
State v. Deyvon T. Chisum / State v. Keshown K. Woodard
(A-35-17/A-36-17 ; 079823/079835)
Once the renter of the motel room lowered the volume of the music and the police declined to issue summonses, the police no longer had any reasonable suspicion that would justify the continued detention of the room’s occupants. Once the noise was abated, the police no longer had an independent basis to detain the occupants, or a basis to run warrant checks on them. Such action was unlawful. And because the detention and warrant checks were unlawful, the subsequent pat-down of Woodard was also improper. The judgment of the Appellate Division is therefore reversed, and the matter is remanded to the trial court for the withdrawal of defendants’ guilty pleas and further proceedings. |
Supreme |
Feb. 4, 2019 |
State v. William D. Brown / State v. Nigil J. Dawson
(A-23-17/A-24-17 ; 079553/079556)
The State’s failure to produce nineteen discovery items until one week after the beginning of defendants’ murder trial did violate defendants’ due process rights under Brady. The Court reaches this conclusion, in part, because the trial court abused its discretion by excluding admissible impeachment and exculpatory evidence withheld by the State. Though there is no evidence or allegation that the State acted in bad faith or intentionally in failing to timely produce the discoverable material, the Court nonetheless vacates defendants’ convictions and remands for a new trial because defendants were deprived of a fair trial. |
Supreme |
Jan. 29, 2019 |
Abdul M. Momoh-Oare v. Director, Division of Taxation
(13111-2016)
Tax Court: Abdul M. Momoh-Oare v. Dir., Div. of Taxation, Docket No. 013111-2016; opinion by Gilmore, J.T.C., decided January 28,2019. For plaintiff – Abdul M. Momoh-Oare (Pro se); for defendant – Steven J. Colby (Gurbir S. Grewal, Attorney General of New Jersey, attorney). A resident taxpayer challenged imposition of New Jersey sales tax on his in-state purchase of a motor vehicle, alleging that his export of the vehicle to Nigeria exempted the transaction from state sales tax. Taxpayer moved for summary judgment and the Director, Division of Taxation cross-moved for summary judgment. Held: Taxpayer’s purchase did not qualify for exemption from sales tax on motor vehicle purchases under New Jersey statutes or regulations, and imposition of sales tax in this matter did not violate the Import-Export Clause of the United States Constitution, art. I, § 10, cl. 2. Therefore, the court denied taxpayer’s motion for summary judgment, and granted the Director, Division of Taxation’s cross-motion for summary judgment denying taxpayer’s refund claim and dismissing the complaint. |
Tax |
Jan. 29, 2019 |
NEW JERSEY MANUFACTURERS INSURANCE COMPANY VS. SPECIALTY SURGICAL CENTER OF NORTH BRUNSWICK, ET AL. (L-3647-17 AND L-4927-17, BERGEN COUNTY AND STATEWIDE) (CONSOLIDATED)
(A-0319-17T1/A-0388-17T1)
In these back-to-back appeals involving automobile insurance, consolidated for purposes of this opinion, defendants appeal from Law Division orders vacating binding arbitration awards entered in their favor against plaintiff New Jersey Manufacturer's Insurance Company (NJM). In both cases, the Law Division held the PIP fee schedule does not provide for payment to an ambulatory surgical center (ASC) for procedures not listed as reimbursable when performed at an ASC. Defendants argue that N.J.A.C. 11:3-29.4(g) requires insurance companies to reimburse ASCs for any procedures performed under Current Procedural Terminology (CPT) codes subsequently approved by Medicare. Defendant's arguments are rejected and the trial court orders are affirmed. |
Appellate |
Jan. 29, 2019 |
Verizon New Jersey, Inc. v. Borough of Hopewell
(12215-2009)
Tax Court: Verizon New Jersey, Inc. v. Hopewell Borough Docket Number 12215-2009; opinion by Brennan, J.T.C., decided January 28,2019. For plaintiff – Susan A. Feeney and Farhan Ali (McCarter & English, LLP, attorneys); for defendant – Joseph C. Tauriello,attorney. Following the court’s decision in Verizon New Jersey, Inc. v.Hopewell Borough, 26 N.J. Tax 400 (Tax 2012), the parties proceeded to trial to resolve the definition of the statutory term “local telephone exchange” and for a determination as to whether plaintiff provided 51% of the dial tone and access for the Hopewell Telephone Exchange, as of January 1, 2008. The Tax Court defined “local telephone exchange” as being a geographic area as depicted on the exchange maps filed with Verizon’s tariff. The court also found that having adopted this definition of a “local telephone exchange,” Verizon continued to furnish in excess of 51% of the dial tone and access in the Hopewell Telephone Exchange as of January 1, 2008. The Tax Court affirmed the imposition of the business personal property tax pursuant to N.J.S.A. 54:4-1 for tax year 2009. |
Tax |
Jan. 28, 2019 |
REGINA TASCA VS. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM (POLICE AND FIREMEN'S RETIREMENT SYSTEM)
(A-4028-15T1)
The court rejects Regina Tasca's appeal of the final agency decision of the Board of Trustees (Board), Police and Firemen's Retirement System (PFRS), denying her twenty-year service (early) retirement pension benefits under N.J.S.A. 43:16A-5(3). Tasca's transfer of six years of service credit that gave her more than the twenty-year service credit threshold needed for early retirement did not qualify her for early retirement pension benefits. The Board properly interpreted N.J.S.A. 43:16A-5(3) in determining that because she was not a PFRS "member" at the critical time of the statute's January 18, 2000 effective date, she was ineligible for early retirement pension benefits. The court also concludes that the doctrine of equitable estoppel does not afford Tasca relief against a governmental body, such as the Board, and there was no misrepresentation by the PFRS staff that she was eligible for early retirement pension benefits under N.J.S.A. 43:16A-5(3). The court further concludes that even though the Law Division action settlement with her former employer include her seeking early retirement pension benefits based on the good faith belief that she was eligible for the benefits, the public policy favoring settlements against parties who have entered into them serves no basis for granting her the benefits in this matter. The Board's decision is affirmed. |
Appellate |
Jan. 24, 2019 |
All The Way Towing, LLC and Chayim Goodman v. Bucks County International, Inc. and Dynamic Towing Equipment and Manufacturing, Inc.
(A-66/67-17 ; 080700)
The customized tow truck and rig fit within the CFA’s expansive definition of “merchandise” and, therefore, plaintiff’s CFA claim should not have foundered based on an application of that term. The Court further agrees with the appellate panel’s remand to the trial court for a determination of whether defendants’ other bases for seeking summary judgment are meritorious. |
Supreme |
Jan. 24, 2019 |
K.G. VS. NEW JERSEY STATE PAROLE BOARD C.C. VS. NEW JERSEY STATE PAROLE BOARD J.L. VS. NEW JERSEY STATE PAROLE BOARD D.C. VS. NEW JERSEY STATE PAROLE BOARD (NEW JERSEY STATE PAROLE BOARD) (CONSOLIDATED) (RECORD IMPOUNDED)
(A-0042-16T2/A-4339-16T1/A-4343-16T4/A-4797-16T3)
Appellants K.G, C.C., J.L., and D.C. are convicted sex offenders who are monitored by respondent New Jersey State Parole Board (the "Board") as offenders who are subject to parole supervision for life ("PSL") under N.J.S.A. 2C:43-6.4. Each appellant challenges certain conditions of PSL, most of which restrict Internet use, that the Board has imposed upon them. The instant appeals follow in the wake of the New Jersey Supreme Court's decision in J.I. v. N.J. State Parole Bd., 228 N.J. 204 (2017), which addressed the parameters of the Board's authority to impose conditions restricting Internet access. We affirm in part, reverse in part, and remand in part. In particular, we reach the following major legal conclusions: (1) the Board's imposition of Internet monitoring conditions upon PSL offenders, including the use of monitoring software, mandatory password disclosure, and unannounced device inspections, does not facially violate the constitutional protections against unreasonable searches or the constitutional rights to privacy; (2) the Board's use of the terms "Internet-capable device," "social networking service," "frequenting establishments whose primary purpose is the sale of alcohol," and "sexually-oriented websites, material, information or data" does not violate due process under the void for vagueness doctrine; (3) all conditions restricting Internet access, including monitoring conditions, should be reasonably tailored to the circumstances of the individual offender, "taking into account such factors as the underlying offense and any prior criminal history, whether the Internet was used as a tool to perpetrate the offense, the rehabilitative needs of the offender, and the imperative of public safety[,]" J.I., 228 N.J. at 224; and (4) in the administrative appeals process, PSL offenders are not entitled to discovery and are only entitled to a hearing when warranted based on "the timing of and justification for the Internet restriction, the severity and length of the restriction, whether facts are contested or uncontested, and whether credibility determinations must be made." Id. at 233. |
Appellate |
Jan. 23, 2019 |
DCPP V. E.M.C., IN THE MATTER OF THE GUARDIANSHIP OF A.E.C.
(A-4577-15T2)
The court affirms the trial court's termination of E.M.C.'s parental rights to his child, A.E.C. The child's mother did not appeal the judgment terminating her parental rights. The trial record supported that E.M.C. was given a meaningful opportunity to reunify with his child. The Division of Child Protection and Permanency's (Division's) requirement that E.M.C. attend a psychological and bonding evaluation was not unreasonable nor did it thwart his relationship with the child or reunification efforts. The Division made reasonable efforts to locate E.M.C., especially where, as here, E.M.C. was aware the child was in placement and had a phone number to contact him. The records supported the trial court's finding that E.M.C.'s absence from the child was voluntary. The court distinguishes this case from N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145 (2010), where the parent took affirmative steps to satisfy the conditions the Division set for him, which was not the case here for E.M.C. Judge Guadagno wrote a dissent. |
Appellate |
Jan. 23, 2019 |
Division of Child Protection and Permanency v. A.S.K., T.T., and E.M.C.
(A-50-17 ; 079700)
The judgment of the Appellate Division is affirmed substantially for the reasons expressed in panel majority’s per curiam opinion. The Court adds only the following. |
Supreme |
Jan. 22, 2019 |
DCPP VS. V.F., IN THE MATTER OF T.Q., A.Q., S.F., AND VI.F. (FN-15-0061-17, OCEAN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)
(A-1343-17T1)
In this appeal, the panel extends to a Family Part context the ruling in State v. Doriguzzi, 334 N.J. Super. 530, 536 (App. Div. 2000) holding that a HGN test is not admissible at a trial to show an individual is guilty of driving under the influence. The court now holds that HGN test results cannot be considered in a Title 9 abuse or neglect hearing to establish that defendant was under the influence when supervising his four minor children while the mother was unconscious. However, the panel concludes the order finding abuse or neglect was consistent with the law because it was supported by substantial independent credible evidence that defendant was under the influence and that his conduct created a substantial risk to the children's mental health and physical safety. The panel affirms the order. |
Appellate |
Jan. 22, 2019 |
ROBERT KATCHEN VS. GOVERNMENT EMPLOYEES INSURANCE COMPANY, ET AL. (L-2766-16, MORRIS COUNTY AND STATEWIDE)
(A-5685-16T4)
The primary question raised in this appeal is whether an auto insurer may combine uninsured and underinsured motorist coverage in a single section and include exclusions not listed on the policy's declaration page. We also consider if an insurer may exclude underinsured motorist coverage for an accident involving a vehicle owned by the insured but not covered under the subject policy. Because we find the exclusion does not violate public policy or result in ambiguity, we reverse. Judge Suter wrote a dissent. |
Appellate |