Opinion Summaries

The Court affirms as to defendants’ respective manslaughter convictions but reverses as to their convictions for endangerment.

In this non-dissolution matter, W.M., a putative psychological parent, appeals from two orders directing her to return a teenage minor to the physical custody of his biological mother, D.G. We conclude the trial court did not fully examine plaintiff’s claim she was a psychological parent, and applied the wrong factors for determining whether such parentage existed. Also, the court should have appointed counsel for the child, then seventeen years old, and converted the otherwise summary matter to the complex track. Therefore, we reverse.

In 2017, with his mother's consent, the minor started living with W.M. However, in late 2019, D.G. demanded that her son return home. Based on limited testimony elicited during summary proceedings, the trial court directed the teenager, then almost seventeen years old, to return home over his objection. He stayed at his mother's home one night but refused to remain there. W.M. filed an emergent application, seeking to be designated as the minor's psychological parent, asking that he be returned to her custody, and that the minor's volunteer attorney be permitted to participate in the proceedings. The trial court denied W.M.'s application without a plenary hearing, denied W.M.’s request for the teenager’s attorney to participate in the proceedings, and did not reach the paramount issue of the minor’s best interests.

After staying the trial court’s orders pending appeal and granting the minor’s attorney the right to appear on his behalf, the appellate court reversed. Although the teenager will be eighteen soon, the court also outlined appropriate factors for trial courts to consider when handling a complex FD custody matter. The court concludes the trial court did not fully examine plaintiff’s claim she was a psychological parent, and applied the wrong factors for determining whether such parentage existed. Also, the court should have appointed counsel for the child, then seventeen years old, and converted the otherwise summary matter to the complex track.

In this motor vehicle negligence case, defendant Roland Williams, a driver for defendant ABF Freight System, Inc., rear-ended plaintiff Ahmed Hassan, a driver for FedEx. A defense expert opined that Hassan cut in front of Williams at a slow speed. The jury found both drivers negligent, but Hassan slightly more so, and the court entered a no cause judgment.

On appeal, the court holds that the trial judge erroneously excluded statements by ABF officials that Williams could have prevented the accident, he drove recklessly, and he violated ABF safety protocols. These were all statements of a party opponent. N.J.R.E. 803(b). The judge's reasoning that the statements should be excluded because they went to the "ultimate issue" was at odds with N.J.R.E. 704. The judge correctly excluded evidence that ABF discharged Williams, but he did so for the wrong reason; it was inadmissible because it was a subsequent remedial measure under N.J.R.E. 407. However, the investigatory finding that led to the discharge decision was not a subsequent remedial measure. Also, the probative value of the ABF officials' statements was not substantially outweighed by the risk of undue prejudice, confusion of the issues, or misleading the jury. Given the closeness of the jury's comparative negligence findings, the trial court's mistaken exclusion of the statements warrants a new trial.

M&K does not fit within the Compassionate Use Act’s limited reimbursement exception, and Hager presented sufficient credible evidence to the compensation court to establish that the prescribed medical marijuana represents, as to him, reasonable and necessary treatment under the WCA. Finally, the Court interprets Congress’s appropriations actions of recent years as suspending application of the CSA to conduct that complies with the Compassionate Use Act. As applied to the Order, the Court thus finds that the Act is not preempted and that M&K does not face a credible threat of federal criminal aiding-and-abetting or conspiracy liability. M&K is ordered to reimburse costs for, and reasonably related to, Hager’s prescribed medical marijuana.

Gannett Satellite Information Network, LLC, which publishes the Asbury Park Press, brought an action to compel the Township of Neptune to disclose the Internal Affairs (IA) file of Philip Seidle, who had been a Sergeant in the Township's Police Department. In June 2015, Seidle shot and killed his ex-wife using his service revolver, while off-duty.

The trial court determined that Gannett was not entitled to access to the records under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, but found, after consideration of the relevant factors under Loigman v. Kimmelman, 102 N.J. 98 (1986), that Gannett was entitled to access to the records under the common law. The trial court also awarded Gannett attorney's fees for the successful pursuit of its claim under the common law. The trial court stayed its judgment pending appeal.

The Township appealed, and Gannett cross appealed, from the trial court's judgment. While the appeal and cross appeal were pending, the Attorney General (AG) ordered public disclosure of Seidle's IA file pursuant to the AG's Internal Affairs Policy and Procedures (IAPP).

We held that the trial court correctly decided that Gannett was not entitled to access to the records under OPRA, and Gannett was entitled to access under the common law. We also held that although attorney's fees can be awarded to a plaintiff that prevails on a claim under the common law right of access, an award of attorney's fees to Gannett was not warranted under the circumstances.

Defendant sought relief from a final default judgment of foreclosure of a tax sale certificate, so it could redeem its property. In denying relief, the trial court cited the tax sale certificate's validity, and defendant's failure to ensure its taxes were paid. But, under the Tax Sale Law, an owner need not challenge the tax sale certificate, nor excuse its own past non-payment, before redeeming its property. Defendant presented compelling reasons for its failure to answer the foreclosure complaint; defendant promptly moved to vacate the default judgment; and it was prepared to redeem the property. Based on those exceptional circumstances, the trial court should have exercised its broad equitable power under Rule 4:50-1(f) and granted defendant relief from the judgment. Therefore, the appellate court reversed the trial court's order.

The CJRA favors pretrial release over detention; it authorizes judges to detain defendants when the State has shown, by clear and convincing evidence, that no conditions of release would reasonably assure the eligible defendant’s appearance in court when required, would protect the public, or would prevent the defendant from obstructing the criminal justice process. To make that determination, the Act directs judges to conduct an individualized assessment of the level of risk each defendant presents in light of their own conduct, history, and characteristics. The Act does not seek to detain defendants whose behavior poses a minimal level of risk, which describes all three defendants here. Nor does the CJRA cede control over pretrial release decisions to outside agencies. The statute’s primary focus is on a defendant’s behavior and choices, and the risk they present. The language, structure, purpose, and history of the CJRA reveal the Act was designed to address a defendant’s own choice not to appear in court, not independent actions by third parties like ICE. The Court agrees with the Appellate Division that the CJRA does not authorize judges to detain defendants to thwart their possible removal by ICE.

The CJRA favors pretrial release over detention; it authorizes judges to detain defendants when the State has shown, by clear and convincing evidence, that no conditions of release would reasonably assure the eligible defendant’s appearance in court when required, would protect the public, or would prevent the defendant from obstructing the criminal justice process. To make that determination, the Act directs judges to conduct an individualized assessment of the level of risk each defendant presents in light of their own conduct, history, and characteristics. The Act does not seek to detain defendants whose behavior poses a minimal level of risk, which describes all three defendants here. Nor does the CJRA cede control over pretrial release decisions to outside agencies. The statute’s primary focus is on a defendant’s behavior and choices, and the risk they present. The language, structure, purpose, and history of the CJRA reveal the Act was designed to address a defendant’s own choice not to appear in court, not independent actions by third parties like ICE. The Court agrees with the Appellate Division that the CJRA does not authorize judges to detain defendants to thwart their possible removal by ICE.

Tax Court: Nicholas L. Gentile, Jr., et al. v. Dir., Div. of Taxation,;Docket No. 013601-2017; opinion by Bedrin Murray,J.T.C., decided March 26, 2021. For plaintiff – Nicholas L. Gentile, Jr. and Doreen A. Gentile (Self-Represented); for defendant – Jamie M. Zug (Gurbir S. Grewal, Attorney General of New Jersey, attorney).

Held: Defendant’s motion for summary judgment seeking dismissal of a complaint challenging the assessment of New Jersey gross income tax (“GIT”) as to an “innocent spouse” husband is denied. Plaintiffs, a married couple filing jointly, failed to report approximately $900,000 in income for tax years 2006-2010 that the wife, an accountant, attained from criminal activity unknown to her husband. Plaintiffs urge the husband should be relieved of joint and several liability attaching to joint GIT filers under N.J.S.A. 54A:8-3.1(c), citing the equitable remedy afforded to an “innocent spouse” in 26 U.S.C. § 6015. Defendant contends no such relief is afforded a taxpayer under New Jersey law; further, plaintiffs’ joint and several liability for GIT includes profit from criminal activity under N.J.S.A. 54A:5-1(o). An audit of plaintiffs’ tax returns resulted in an assessment and civil fraud penalty being imposed after expiration of the three-year statutory period for assessing GIT under N.J.S.A. 54A:9-4(a). As such, there must be a showing that “[a] false or fraudulent return [was] filed with intent to evade tax.” Ibid. The record is devoid of proof that the husband filed a false or fraudulent return for tax years 2006-2010 with an intent to evade tax, nor is any such claim advanced by defendant. Defendant’s reliance on the absence of innocent spouse relief under New Jersey law in support of the motion is misplaced. Joint and several liability of taxpayers filing joint GIT returns does not relieve defendant of the burden to prove the statutory exemption set forth in N.J.S.A. 54A:9-4(c)(1)(B). See Anita K. Leather v. Dir., Div. of Taxation, 31 N.J. Tax 285 (Tax 2019). As the record is unsettled in this regard, defendant’s motion for summary judgment is not ripe.

In this construction site accident case, the court addresses an unresolved question of New Jersey law: When is an Affidavit of Merit ("AOM") under N.J.S.A. 2A:53A-27, supporting claims against a licensed professional, due in situations where a plaintiff’s original complaint is later amended and additional answers or other pleadings are filed?

Plaintiffs served AOMs (one from an engineer and another from an architect) more than 120 days after the defendant engineering firm filed its answer to the original complaint, but before that firm answered an amended complaint naming another defendant.

Relying in part on several federal decisions interpreting New Jersey law, the motion judge ruled the deadline for an AOM "does not come into play until the pleadings are [all] settled." Based on that reasoning, the judge deemed timely the two AOMs tendered by plaintiffs more than a year after the engineering firm had filed its original answer and first amended answer.

Declining to adopt the federal approach, this court holds the AOM statute's text and legislative purposes require the affidavit to be served within 60 days (extendable for good cause to 120 days) from the date when the licensed professional files its answer, regardless of whether the pleadings are subsequently amended to name other defendants or assert additional claims. That deadline is subject, however, to the long established AOM exceptions for (1) substantial compliance or (2) extraordinary circumstances.

The court concludes extraordinary circumstances to justify the delayed AOMs exist here, based on events stemming from the initial negotiated voluntary dismissal of plaintiffs’ claims against the engineering firm and the restoration of those claims the following year after discovery shed more light on the firm’s role in the project.

This appeal raises novel questions concerning the scope of the duty owed to an adult who is not old enough to drink legally but who nonetheless drinks alcohol to excess and injures himself in a motor-vehicle accident. Plaintiff, when he was a twenty-year-old college student, attended a social gathering in a suite in a university's residential hall. He had planned to spend the night in the suite and fell asleep after becoming visibly intoxicated. He later awoke, left the suite, and was injured when a car he was driving went off the road. No one saw plaintiff leave the suite

Plaintiff and his parents appeal from a series of orders that granted summary judgment to the University, four student residential assistants (RAs), four student suitemates (the Suitemates), and three other students who attended the gathering as guests. Plaintiff contends that the University and the students had a duty to take action that would have prevented him from driving while drunk. The court holds that certain defendants had no duty, while the duty of other defendants, and a related causation issue, present questions of fact for a jury to resolve.

The three student guests had no duty to monitor the actions of plaintiff. Any duty of the Suitemates ended when plaintiff fell asleep with the plan to spend the night in the suite. The University and its student RAs are protected by the Charitable Immunity Act (CI Act), N.J.S.A. 2A:53A-7 to -11, which shields them from claims based on simple negligence. There are disputed issues of material fact concerning whether the RAs were grossly negligent or acted with willful or wanton indifference in failing to enforce the University's policies prohibiting underage drinking. There is also a related disputed issue of material fact concerning whether any breach by the RAs caused plaintiff's injuries. Accordingly, the court affirmed in part, reversed in part, and remanded for further proceedings.

The Court affirms settled principles of law that require trial judges to conduct a “reasoned, thoughtful analysis” of certain factors when they consider a request for an adjournment to hire new counsel. See State v. Kates, 216 N.J. 393, 396-97 (2014); State v. Furguson, 198 N.J. Super. 395, 402 (App. Div. 1985). If a trial judge does not conduct the proper analysis, it may be necessary to reverse a conviction. But defendants are not automatically entitled to a new trial. When a reviewing court can glean or infer the relevant considerations from the record, it may evaluate the appropriate factors. The Court does not find an actual deprivation of the right to counsel of choice here, so the doctrine of structural error does not apply.

The Court finds no error, let alone plain error, in the trial court’s omission of a theft charge. Nothing in Dunbrack’s version of the events “jumps off the page” as indicative of theft. Neither Dunbrack nor Rodriguez requested an instruction on theft, and the trial court was not required to scour the record for a combination of facts to justify giving such a lesser included jury charge.

In 2018, after the New Jersey Legislature passed the Global Warming Response Act, N.J.S.A. 26:2C-37 to -68, having declared that it was in the State's interest to reduce greenhouse gas emissions, the Legislature enacted a Zero Emission Certificate (ZEC) program for eligible nuclear power plants, L. 2018, c. 16, codified at N.J.S.A. 48:3-87.3 to -87.7 (the ZEC Act). The purpose of the ZEC Act is to subsidize nuclear power plants at risk of closure, helping them to remain operational despite competition from other carbon-emitting power sources, to further New Jersey's clean energy goals.

The New Jersey Board of Public Utilities (the Board) considered ZEC applications from the Salem 1, Salem 2 and Hope Creek nuclear power plants located in Salem County. Following an extensive review of the applications, including voluminous confidential financial information about the nuclear power plants' costs and revenues, certifications that the plants would shut down in three years absent a material financial change, as well as consideration of thousands of public comments, the Board determined that all three applicants satisfied the five statutory eligibility criteria codified at N.J.S.A. 48:3-87.5(e) and should receive ZECs. The court reviewed challenges to the Board's decision by New Jersey Division of Rate Counsel as well as other interested parties. Because the Board's decision regarding the financial viability of the three plants in question is adequately supported by the record and consistent with both the ZEC Act's plain language and the legislative intent, the court affirmed.

After the municipality painted white lines on a paved area, defendant painted over the lines with black paint and then painted a new white line. She claimed the paved area was a "parking bay" on her property; the municipality claimed it was a public street.

In a trial de novo, the Law Division convicted defendant of violating a municipal ordinance that prohibited a person from unnecessarily obstructing "any . . . street, or public place in the [municipality] with any kind of vehicle, boxes, lumber, wood, or any other thing[.]"

Without addressing the property-ownership issue, the court perpended the plain-language meanings of "obstruct" and considered two Law Division decisions—one by then-Judge Virginia A. Long—interpreting that term as used in the statute prohibiting obstruction of highways and other public passages, N.J.S.A. 2C:33-7. Because defendant's actions did not block or otherwise impede passage, the court concluded she did not violate the ordinance and reversed her conviction.

Pretrial detention is not an absolute bar to receiving unemployment compensation benefits for the time following dismissal of the charges and release from detention. Based on the specific facts presented by this appeal, the UCL and N.J.A.C. 12:17-9.1(e)(10) required the Department to review the totality of the circumstances surrounding Haley’s detention and release to determine whether he “left work voluntarily.” That review did not occur here.

Because the trial court quizzed defendant on his knowledge of substantive law rather than provide the information required by New Jersey case law to confirm he was making a knowing and voluntary waiver of counsel, the denial of defendant’s request to represent himself was an abuse of discretion.

The plain language of N.J.S.A. 30:4-27.30(b) requires the State to produce psychiatric testimony in support of commitment when the State seeks the initial or continued commitment of a sexually violent predator. The State therefore did not meet its burden in this case by producing a psychiatrist who did not support commitment.

Following a bench trial, the judge concluded defendant 1 Memorial Drive, LLC, was the successor of defendant Amma, Corp., and entered judgment in favor of plaintiff, Amma's landlord, for unpaid rent for the balance of the lease extension. The judge concluded exceptions to the general rule that a transferee is generally not liable for the debts of the transferor, see Woodrick v. Jack J. Burke Real Estate, Inc., 306 N.J. Super. 61, 72–73 (App. Div. 1997), applied, even though he found that the only asset Amma transferred was a trademarked name, Super Supermarket. The judge made no finding as to the actual value of the trademark, which 1 Memorial had been using for nearly one year and which several other supermarkets in New Jersey used. Nevertheless, using his personal knowledge of other businesses in the city, and their recognizable business names, the judge found successor liability.

Citing several cases from other jurisdictions and treatises, the court concluded that the transfer of all or substantially all of the predecessor entity's assets is a predicate to any finding of successor liability as to the successor entity. In this case, the substantial credible evidence supported a finding that the transfer of a generic trademark was of limited value, and plaintiff failed to prove that Amma transferred any, much less all or substantially all, of its assets to 1 Memorial. The court reversed and vacated the judgment.

Tax Court: Nicholas L. DePace M.D. v. Dir., Div. of Taxation; Docket No. 013396-2019, opinion by Cimino, J.T.C., decided December 21, 2020. Released for publication: March 10, 2021. For plaintiff – Jack A. Myerson and Matthew L. Miller (Myerson & O’Neill, attorneys).; for defendant – Ramanjit K. Chawla, Deputy Attorney General (Gurbir S. Grewal, Attorney General of New Jersey, attorney).

Held: Under existing law, Gross Income Tax is due from both the qui tam plaintiff and the attorney representing the qui tam plaintiff on the portion of the award payable to the attorney as fees. Qui tam actions are brought by private citizens on behalf of the government alleging waste and fraud. The private citizen is entitled to an award which constitutes a percentage of the government’s recovery. While an argument can be made that only the attorney is liable for Gross Income Tax on the attorney’s fee portion of the award, a recent attempt to change the law to only tax the attorney was vetoed by the Governor. The court is constrained to respect the legislative process for which the Governor is a part.