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Opinion Summaries

Posted Date Name of Case (Docket Number) Type
Feb. 15, 2023 Liberty Insurance Corp. v. Techdan, LLC (A-52-21 ; 086219)

Pursuant to N.J.S.A. 2A:15-5.2(a) and -5.2(d), the trial court should have charged the jury to allocate percentages of fault and should have molded the judgment based on the jury’s findings. The trial court’s failure to apply the CNA warrants a new trial on remand so that a new jury may apportion percentages of fault under N.J.S.A. 2A:15-5.2(a)(2). The Court does not disturb the first jury’s findings on the issues of liability under the IFPA, the WCA, or Liberty’s common-law claims, or its determination of total compensatory damages. The Court finds no plain error in the trial court’s failure to give the jury an ultimate outcome charge in this complex matter.

Supreme
Feb. 15, 2023 STATE OF NEW JERSEY VS. JOHN C. VANNESS (13-01-0050 AND 15-01-0057, MONMOUTH COUNTY AND STATEWIDE) (A-3775-20 ; A-3775-20)


     At issue in this post-conviction relief matter is whether defendant's "open" guilty plea during trial was premised on his attorney's "guarantee" that the judge would sentence him to a time-served sentence pursuant to an alleged agreement reached in chambers.  Citing the transcript of the plea hearing to the contrary, the PCR judge – who was not the trial judge – denied defendant's petition.  Thereafter, PCR counsel moved for reconsideration based on the certification of plea counsel, which supported defendant's assertions, but was acquired beyond the twenty-day time limitation prescribed by Rule 1:7-4(b) and Rule 4:49-2.  The PCR judge denied the motion as untimely and did not reach the merits of defendant's motion.  
     Because plea counsel's certification was belatedly provided to the PCR judge, this court affirms the denial of defendant's petition and his motion for reconsideration.  However, the court concludes PCR counsel provided ineffective assistance following receipt of plea counsel's certification.  
     Although PCR counsel's obligation to defendant was discharged upon filing an appeal with this court, PCR counsel filed an untimely reconsideration motion.  PCR counsel had other available options that would have led to a timely-filed second PCR petition under Rule 3:22-12(a)(2)(B).  PCR counsel could have sought authority from the Office of the Public Defender to file a second PCR petition on defendant's behalf, or he could have provided plea counsel's certification to defendant to file a pro se second petition.  
     Because the court concludes PCR counsel's representation was deficient, defendant is entitled to a new PCR proceeding.  Because defendant's assertions against plea counsel are now supported by the sworn statements of that same attorney, the court concludes defendant's claims cannot be resolved on the existing record. 
     The court therefore affirms both orders under review.  In light of PCR counsel's ineffectiveness, however, the court remands the matter for an evidentiary hearing.  

Appellate
Feb. 14, 2023 State v. Richard Gomes; State v. Moataz M. Sheira (A-64/65-21 ; 087192)

Persons who received pre-CREAMMA conditional discharges for specified marijuana offenses -- just like persons who had pre-CREAMMA convictions for those marijuana offenses -- are no longer categorically precluded from future admission into PTI. Instead, prosecutors and reviewing courts must consider the merits of their PTI applications, without regard to the existence or circumstances of the earlier marijuana-related conditional discharges. The holding harmonizes CREAMMA and its manifest legislative intent with the pre-existing general language of the PTI and expungement statutes, including the Legislature’s command in CREAMMA to apply its reforms to “any case” that arose before its enactment.

Supreme
Feb. 13, 2023 STATE OF NEW JERSEY VS. RAYMOND INGRAM (19-01-0028, MERCER COUNTY AND STATEWIDE) (A-1500-20)

          The court considers whether a police officer, who walked onto the driveway of a home without permission or a warrant, was lawfully there when he observed illegal narcotics in a hole in the home's front porch.  Because the driveway was part of the home's curtilage, the court holds that the officer conducted an unlawful search and his subsequent observation of contraband in the hole in the porch did not satisfy the plain-view exception.  Accordingly, the court reverses the trial court's denial of defendant's motion to suppress the seized contraband. 

Appellate
Feb. 13, 2023 STATE OF NEW JERSEY VS. ISAAC A. YOUNG (13-09-0524, SALEM COUNTY AND STATEWIDE) (A-2314-20)

Defendant appeals from the denial of his petition for post-conviction relief (PCR) without a hearing.  The petition alleges ineffective assistance of counsel regarding both his prior attorneys.  Defendant's claim is primarily based on counsels' representation of him during two statements he gave to police, prior to the filing of any charges.  Defendant lied to the police during his first statement, at which he was represented by his first attorney.  He then retained a different attorney and gave a second statement in which he admitted to but tried to explain the prior misrepresentations.  Defendant was charged with hindering apprehension by false statements and false swearing by inconsistent statements, in addition to the substantive offense of permitting or encouraging the release of a child abuse record.

Defendant testified during the first jury trial, which ended in a mistrial based on defense counsel's failure to provide the State notice of his retraction defense.  Defendant exercised his right to remain silent during the second trial, which resulted in convictions on all counts.  On direct appeal, the court affirmed the convictions for false swearing and hindering apprehension and vacated the conviction for unlawful disclosure of a child abuse record.

In support of his petition for PCR, defendant provided an expert report from a veteran criminal attorney which opined that counsels' representation fell below the constitutional standard.  The PCR judge declined to consider the report because the petition presented mixed questions of law and fact which were for the court to determine, and she did not need the assistance of an expert report to decide the issues.

Under both the federal and state constitutions, it is well established that the right to effective counsel does not attach until the filing of charges.  Defendant sought to expand this right to representation occurring during the investigation.  The court found a defendant may not bring a PCR petition based on ineffective assistance of counsel for representation that occurred prior to being charged.

The court also found defendant failed to demonstrate either counsel was ineffective, and the PCR judge did not abuse her discretion in declining to consider defendant's expert report.

Appellate
Feb. 13, 2023 OCEAN GROVE CAMP MEETING ASSOC, ETC V TOWNSHIP OF NEPTUNE (A-2730-20)

No summary available for this Appellate Division opinion which has been approved for publication in the Tax Court Reports.

Tax
Feb. 9, 2023 CHRISTA ROBEY, ET AL. VS. SPARC GROUP LLC (L-3772-21, BERGEN COUNTY AND STATEWIDE) (A-1384-21 ; A-1384-21)
    In their complaint, plaintiffs alleged defendant falsely advertised clothing at two of its Aeropostale stores as being discounted when, in fact, according to plaintiffs, the clothing had never been sold in those stores at a higher price. Plaintiffs asserted that this "markup to markdown" practice violated both the Consumer Fraud Act, N.J.S.A. 56:8-1 to -227, and the Truth in Consumer Contract, Warranty, and Notice Act (the Truth Act), N.J.S.A. 56:12-14 to -18. The trial judge dismissed the complaint for failure to state a claim upon which relief can be granted, mainly because the judge determined plaintiffs failed to allege an ascertainable loss.
    Plaintiffs' ascertainable-loss theory – to use a simple example – is that defendant offered an item that never sold for anything more than $50, at a 50% discount below a new $100 price tag. Defendant successfully argued in the trial court that there was no ascertainable loss because plaintiffs purchased a $50 item for $50. The court rejected this and held, among other things, that the facts alleged an ascertainable loss because they alleged the discount was illusory and plaintiffs did not receive the benefit of the bargain because one element of the bargain was a 50% discount.
    Judge Berdote Byrne filed a concurring opinion.
 
Appellate
Feb. 9, 2023 JAMES KENNEDY, II VS. WEICHERT CO. (L-2266-19, ESSEX COUNTY AND STATEWIDE) (A-0518-19-Published)

          Plaintiff, a fully commissioned real estate salesperson, alleged on behalf of himself and a putative class of those similarly situated that defendant, a licensed real estate broker, had violated the Wage Payment Law (WPL), N.J.S.A. 34:11-4.1 to -4.14.  This court's prior opinion, Kennedy v. Weichert Co., No. A-0518-19 (App. Div. July 2, 2021), affirmed the trial court's order:  denying defendant's motion to dismiss for failure to state a claim; and declaring pursuant to Hargrove v. Sleepy's, LLC, 220 N.J. 289, 302 (2015), that the "ABC test," N.J.S.A. 43:21-19(i)(6)(A), (B), and (C), applied to determine plaintiff's employment status as an employee or independent contractor.

         The Supreme Court granted defendant's motion for leave to appeal but then remanded the matter for this court to consider recent amendments to the Real Estate Brokers and Salesmen Act (the Brokers Act), N.J.S.A. 45:15-1 to -29.5, enacted after this court's prior opinion.

         On remand, the court concluded the recent amendments foreclosed application of the ABC test to determine the employment status of fully commissioned real estate salespersons.  The court also concluded that pursuant to binding precedent from the Court, the written agreement between the parties did not, as a matter of law, define plaintiff's status.  See, e.g., MacDougall v. Weichert, 144 N.J. 380, 388 (1996).

         However, given the paucity of the record, the court declined to adopt a specific test to apply in deciding plaintiff's status pending "the development of a more complete record that permits exposition of the actual business relationship between the parties."

Appellate
Feb. 8, 2023 SHLOMO HYMAN, ET AL. VS. ROSENBAUM YESHIVA, ET AL. (L-8214-19, BERGEN COUNTY AND STATEWIDE) (A-2650-20)

Plaintiff, Shlomo Hyman, is a rabbi formerly employed by defendants as a Judaica studies teacher.  After an investigation concluded defendant had engaged in behavior that violated Orthodox Jewish standards of conduct, defendants terminated him.  Defendants then sent an email to the parents of the Yeshiva students informing them that Rabbi Hyman would not be returning as "[his] conduct had been neither acceptable nor consistent with how a rebbe in our Yeshiva should interact with students." Plaintiff alleged the communication defamed him and served to label him as a pedophile, impairing his future employment prospects.

Plaintiff now appeals from an April 16, 2021 order granting defendants' motion for summary judgment dismissing his claim for defamation based on the ministerial and ecclesiastic abstention doctrines.  Plaintiff argues the court erred in dismissing his defamation claim because the ministerial exception recognized in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 181 (2012) applies only to employment discrimination claims, and because further discovery was required to determine whether the motivation behind the dissemination of a letter concerning the termination was ecclesiastic in nature.

The court affirmed the dismissal of the lawsuit, concluding, as a matter of first impression, that the ministerial exception operates to bar any tort claim provided (1) the injured party is a minister formerly employed by a religious institution and (2) the claims are related to the religious institution's employment decision.  Because both conditions are satisfied in this case, the ministerial exception alone bars plaintiff's defamation claim.  Therefore, the court found it unnecessary to address whether the ecclesiastic abstention doctrine was an independent basis to dismiss the action.

Appellate
Feb. 8, 2023 COUNTY OF PASSAIC VS. HORIZON HEALTHCARE SERVICES, INC. (L-1385-21, PASSAIC COUNTY AND STATEWIDE) (A-0952-21)

          In this appeal of an order compelling arbitration, the court held that the requirement imposed by Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430 (2014) – that, to be enforceable, an arbitration provision must contain an express waiver of the right to seek relief in a court of law – was not intended to apply to sophisticated commercial litigants possessing comparatively equal bargaining power.

Appellate
Feb. 8, 2023 NORTH BERGEN MUNICIPAL UTILITIES AUTHORITY VS. I.B.T.C.W.H.A. LOCAL 125 (C-000025-22, HUDSON COUNTY AND STATEWIDE) (A-3163-21)

          A public employer appealed from two Chancery Division orders denying its request to restrain a grievance arbitration filed by the union.  The issue before the court was whether a union grievance based on language from an expired collective negotiations agreement is arbitrable when a successor collective negotiations agreement clearly and unambiguously addresses the disputed issue raised in the grievance.  The court concluded that the language contained in the successor collective agreement superseded the language in the expired agreement.  The language in the successor agreement limited compensation for work performed during a weather-related State of Emergency declared by the Governor, contrary to the union's interpretation the language applied to COVID-19.  Since the grievance was not within the scope of the successor agreement implemented after impasse, it was not arbitrable.  The court reversed the orders requiring grievance arbitration.

Appellate
Jan. 31, 2023 NJ State Firemen's Assn. v. Director, Div of Tax, et als (00151-19)

Tax Court:  New Jersey State Firemen’s Association v. Dir., Div. of Taxation, Philadelphia Contributionship Ins. Co., Germantown Insurance Co., Greater New York Mutual Ins. Co., and Strathmore Ins. Co., Docket No. 000151-2019, opinion by Sundar, P.J.T.C., decided January 30, 2023.  For plaintiff - Michael E. Sullivan (Parker McCay, P.A., attorney); for defendant, Dir., Div. of Taxation - Michael J. Duffy (Matthew J. Platkin, Attorney General of New Jersey, attorney), for remaining defendants and intervenor Strathmore Ins. Co. - Michael A. Guariglia and Jamie Zug (McCarter & English, LLP, attorney).

Held: Defendant, Division of Taxation’s (“Taxation”) decision via its web-published Notice in 2016, to extend the statutory cap on premiums applied when computing the insurance premium tax (IPT) for domestic and foreign companies, in calculating the fire insurance premium tax (FIPT) paid to plaintiff by foreign insurers, is contrary to the plain language and intent of the FIPT statute, N.J.S.A 54:18-1, thus is not entitled to any deference.  Its interpretation of the provision in N.J.S.A. 54:18A-2(a) that the FIPT is considered “a part of” the “payable” IPT as requiring the cap to apply in computing the FIPT is unreasonable because, (a) since 1945, this provision has been interpreted to simply mean that the IPT statute requires a credit for the FIPT paid so that a foreign insurer does not pay a tax on fire insurance premiums twice, and (b) it results in plaintiff receiving less than the mandated 2% FIPT on “all of the” fire insurance premiums earned in New Jersey.  The cap on premiums for purposes of computing the IPT need not, and should not, be extended in computing the FIPT unless the Legislature acts to amend the respective statutes.

Due to this holding, the court did not need to consider plaintiff’s arguments that Taxation’s decision violated the Administrative Procedures Act, or Taxation’s arguments that its Notice, as a public guidance document should be upheld under the temporary validity doctrine until it formally promulgates and finalizes regulations reflecting its changed position as to FIPT computation.  

The court granted NJSFA’s motion for partial summary judgment, invalidated the Notice, and denied Taxation’s motion for summary judgment.
 

Tax
Jan. 31, 2023 STATE OF NEW JERSEY VS. WILLIAM L. SCOTT (20-02-0189 AND 20-03-0215, HUDSON COUNTY AND STATEWIDE) (A-0529-21)

Defendant contends he was subjected to discriminatory policing when he was stopped and frisked based on the be-on-the-lookout (BOLO) description of the person who committed an armed robbery in the vicinity minutes earlier.  The BOLO alert described the robber as a Black male wearing a dark raincoat.  However, the victim did not provide the race of the perpetrator when she reported the crime.  The State acknowledges it does not know why the police dispatcher assumed the robber was Black.

The court address three issues of first impression.  As a threshold matter, the court holds that decisions made and actions taken by a dispatcher can be attributed to police for purposes of determining whether a defendant has been subjected to unlawful discrimination in violation of Article I, Paragraphs 1 and 5 of the New Jersey Constitution. 

Second, the court holds that "implicit bias" can be a basis for establishing a prima facie case of police discrimination under the burden-shifting paradigm adopted in State v. Segars, 172 N.J. 481 (2002).  Reasoning that the problem of implicit bias in the context of policing is both real and intolerable, the court holds evidence that supports an inference of implicit bias shifts a burden of production to the State to provide a race-neutral explanation.  The State's inability to offer a race-neutral explanation for the dispatcher's assumption that the robbery was committed by a Black man constitutes a failure to rebut the presumption of unlawful discrimination under Segars.

Third, the court addresses whether and in what circumstances the independent source and inevitable discovery exceptions to the exclusionary rule apply to the suppression remedy for a violation of Article I, Paragraphs 1 and 5.  After balancing the cost of suppression against the need to deter discriminatory policing and uphold public confidence in the judiciary's commitment to safeguard equal protection rights, the court concludes the independent source doctrine does not apply in these circumstances.  That exception allows a reviewing court to redact unlawfully obtained information to determine whether the remaining information is sufficient to justify a search.  The court concludes that any such redaction remedy would undermine the deterrence of discriminatory policing and send a message to the public that reviewing courts are permitted to essentially disregard an equal protection violation so long as police also relied on information that was lawfully disseminated.  The court reasons that if simple redaction were permitted in these circumstances, the independent source exception might swallow the exclusionary rule.   

With respect to the inevitable discovery doctrine, the court holds it may apply in racial discrimination cases only if the State establishes by clear and convincing evidence that the discriminatory conduct was not flagrant.  Because the State concedes it does not know why the dispatcher assumed the robber was Black, it cannot meet that burden.  The court, therefore, reverses the denial of defendant's motion to suppress.   

Appellate
Jan. 26, 2023 MATTHEW J. PLATKIN, ET AL. VS. SMITH & WESSON SALES CO., INC. (C-000025-21, ESSEX COUNTY AND STATEWIDE) (A-3292-20)

Defendant, Smith & Wesson, appeals from a June 30, 2021 Chancery Division order directing it to respond to a subpoena issued the Attorney General and the Acting Director of the New Jersey Division of Consumer Affairs.  Defendant also appeals a second June 30, 2021, Chancery Division order denying its cross-motion to dismiss, stay, or quash the subpoena. 

Faced with defendant's first-filed federal complaint against plaintiffs' motion to quash the subpoena, and with plaintiffs' subsequently filed order to show cause to enforce the subpoena, the Chancery Division judge assumed jurisdiction, finding special equities which justified avoiding the first-filed doctrine.  The judge then found the subpoena valid.  Defendant appealed, arguing the judge erred by misapplying the first-filed doctrine and by rejecting its constitutional attacks on the subpoena.   

The court held that:  special equities exist which support avoidance of the first filed doctrine; NAACP v. Alabama does not require resolution of defendant's constitutional claims at this stage of the litigation; defendant's federal constitutional claims are not ripe for consideration; and the subpoena is valid.

Affirmed.

Appellate
Jan. 23, 2023 EVOLUTION AB (PUBL.), ET AL. VS. RALPH J. MARRA, JR., ESQUIRE, ET AL. (L-0616-22, ATLANTIC COUNTY AND STATEWIDE) (A-3341-21)

Defendants – an attorney and law firm – have a client that produced a report, which asserts plaintiffs unlawfully conducted gambling-related business in forbidden countries. At the client's behest, the defendant attorneys forwarded the report to the New Jersey Division of Gaming Enforcement. When the media learned of the report, plaintiffs sued the defendant attorneys, as well as their anonymous client and other fictitious persons, alleging defamation and other torts. Plaintiffs successfully obtained an order compelling the defendant attorneys to provide their client's identity. The court granted the defendant attorneys' motion for leave to appeal.

Although RPC 1.6 generally imposes on attorneys the ethical obligation to refrain from disclosing a client's identity without the client's consent, the court held that this interest in preserving confidentiality cannot be used to thwart justice and, in appropriate circumstances, a client's right to anonymity may be overcome in favor of an injured party's right to seek redress in our courts. To resolve the conflict between these interests, there must be a deeper examination of the claim's merits than occurred here. The court, therefore, vacated the disclosure order and remanded for the judge's inquiry into the veracity of the report that lies at the heart of plaintiffs' civil action, leaving to the judge's discretion the methodology to be employed.

Appellate
Jan. 23, 2023 State v. Terrell M. Chambers (A-35-21 ; 086317)
A heightened discovery standard governs a defendant’s motion for pre-incident mental health records from a sexual assault victim. The Court establishes the standard applicable to a formally filed motion and also outlines a less formal process through which defendants may make requests for discovery of the pre-incident mental health records of an alleged sexual assault victim by letter to the prosecutor’s office. So that the new procedural and analytical framework can be applied in this case, the Court vacates the orders under review and remands the matter for further proceedings.
Supreme
Jan. 23, 2023 STATE OF NEW JERSEY VS. WILLIAM HILL (19-09-0946, HUDSON COUNTY AND STATEWIDE) (A-4544-19 (redacted))

Defendant was initially charged with carjacking.  While he was awaiting trial, he sent a letter to the victim's home address, urging her to reconsider her identification of him as the robber.  That resulted in an additional charge of witness tampering.

The court rejects defendant's contention that the witness tampering statute, N.J.S.A. 2C:28-5(a), is overbroad and impermissibly vague on its face.  A person commits witness tampering if he or she knowingly engages in conduct which a reasonable person would believe would cause a witness or informant to do one or more specified actions, such as testify falsely or withhold testimony.  Defendant contends the "reasonable person" feature renders the statute unconstitutional and, to avoid constitutional infirmity, the statute must be construed to require the State to prove he knew his conduct would cause a prohibited result. 

First addressing defendant's overbreadth challenge, the court reaffirms that preventing the intimidation of, and interference with, potential witnesses or informers in criminal matters is an important governmental objective.  The court also notes a defendant who is awaiting trial for a violent crime has no First Amendment right to communicate directly with the victim.  Were it otherwise, a court setting the conditions of pretrial release under the Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to -26, might be foreclosed from imposing a "no contact" order.  The court concludes the witness tampering statute is not overbroad weighing the importance of the exercise of speech against the gravity and probability of harm resulting from that speech.

With respect to defendant's vagueness challenge, the court declines to embrace a new rule that would categorically prohibit the Legislature from using a reasonable-person test to determine a defendant's culpability.  The court rejects the argument that the "reasonable person" feature in the witness tampering statute is analytically indistinguishable from the portion of the bias intimidation statute, N.J.S.A. 2C:16-1(a)(3), that was struck down on vagueness grounds in State v. Pomianek, 221 N.J. 66 (2015).  The invalidated portion of the bias intimidation statute employed a subjective test under which a defendant's culpability was determined from the perspective of the specific victim who was targeted.  That led the Supreme Court to conclude that "guilt may depend on facts beyond the knowledge of the defendant or not readily ascertainable by him [or her]."  Pomianek, 221 N.J. at 89.

The "reasonable person" standard employed in the witness tampering statute, in contrast, does not account for, much less depend on, what the victim actually perceived or believed.  Rather, the witness tampering statute uses an objective standard, effectively eliminating the concern expressed in Pomianek regarding idiosyncratic personal characteristics of the victim about which a defendant might be unaware. 

The court also notes the bias intimidation statute employed a convoluted culpability provision that focused on the victim's speculation as to the defendant's purpose.  That formulation had not been used in any preexisting statute and was never replicated in New Jersey or any other jurisdiction.  The objective "reasonable person" formulation employed in the witness tampering statute, in contrast, appears throughout the New Jersey Code of Criminal Justice.

Appellate
Jan. 19, 2023 State v. Deje M. Coviello (A-54-21 ; 086673)
The sentencing court, and not the MVC, has the appropriate jurisdiction over defendant’s motion for sentencing credit concerning the IID requirement.
Supreme
Jan. 18, 2023 RICHARD LIPSKY, ET AL. VS. THE NEW JERSEY ASSOCIATION OF HEALTH PLANS, INC., ET AL. (L-3723-16, HUDSON COUNTY AND STATEWIDE) (A-1611-21)

         In this opinion, the court addresses the novel issue of whether a party to a pending litigation may compel a non-party State agency to turn over its employees' State-issued and personal cell phones to that party's expert for forensic examination, even when the agency has already produced the relevant records from the devices.  Having reviewed this issue in light of the record, the arguments of the parties, and the applicable law, the court concludes that the trial court misapplied its discretion when it required the New Jersey Department of Health (Department) to give the cell phones to plaintiffs' expert for evaluation.  The trial court's order violated civil discovery rules and case law by requiring the production of materials not in the Department's possession, custody, or control, not allowing for privilege and confidentiality review, and being unnecessary and unduly burdensome.  The order also contravened the employees' constitutional right to privacy.  Therefore, the court reverses the trial court's order mandating that the Department turn over any State-issued or personal electronic devices for examination by plaintiffs' expert, and remands the matter for resolution of any outstanding issues relating to the completeness of the Department's response to plaintiffs' subpoena.

Appellate
Jan. 18, 2023 W.S. v. Derek Hildreth (A-46-21 ; 086633)
The plain meaning of N.J.S.A. 59:8-3(b) dictates that child sexual abuse survivors who file a CSAA complaint against a public entity after December 1, 2019 -- even if their cause of action accrued much earlier -- need not file a TCA notice of claim before filing suit.
Supreme