Opinion Summaries

The court granted the State leave to appeal from an order granting defendant's motion to withdraw his guilty plea prior to sentencing.

Defendant entered into a plea agreement calling for a five-year Drug Court probationary term with an alternate sentence of a four-year prison term subject to an eighteen-month period of parole ineligibility if he was terminated from Drug Court. Before sentencing, defendant was charged with armed robbery and related weapon offenses. Defendant remained incarcerated on the new charges while awaiting trial. After being acquitted of the new charges, he moved to withdraw his guilty plea. By the time the motion was heard, defendant had accrued an additional 366 days of jail credit. The trial court granted the motion, finding defendant's reasonable expectations at the time of his plea were not met because of the additional jail credit.

The court reverses and remands for sentencing, finding the trial court abused its discretion in granting the motion. Defendant did not present a colorable claim of innocence. His reasonable expectations as they existed at the time of the plea hearing were met by enforcing the plea agreement despite the unanticipated accrual of additional jail credit before sentencing.

Appellant was denied promotion to the position of sergeant when his employer chose the first, third and fourth police officers from a certified list, skipping over appellant who placed second; the first and third are Caucasian officers, while appellant and the fourth are African-American. The Civil Service Commission denied appellant's claim of retaliation arising from grievances about an earlier promotion; in so acting, the Commission did not conduct an evidentiary hearing but simply rejected what it called appellant's "mere allegations" that the employer retaliated against him. The court remanded for an evidentiary hearing so the parties' factual disputes could be resolved and so the Commission might determine – even if not expressly or clearly raised previously – whether the employer's reasons for skipping over appellant were unlawfully pretextual.

The legal question in this appeal is whether, as a matter of law, a police officer is ineligible for ordinary disability benefits as a member of the Police & Firemen's Retirement System (PFRS) if the officer separates from service by irrevocably resigning from employment to resolve pending drug-related disciplinary charges. Recognizing that N.J.S.A. 43:16A-8(2) requires disability retirees to return to duty once their disability has "vanished or has materially diminished," and emphasizing that an irrevocable resignation makes returning to duty impossible and therefore deprives the PFRS Board of Trustees from terminating benefits, this court held that such a member is ineligible.

Tax Court: Lorillard Tobacco Co. v. Dir., Div. of Taxation, Docket No. 008305-2007, opinion by Sundar, J.T.C., decided February 27, 2019. For plaintiff – Craig B. Fields and Mitchell A. Newmark (Morrison & Foerster, L.L.P., attorneys); for defendant – Marlene G. Brown and Joseph Palumbo (Gurbir S. Grewal, Attorney General of New Jersey, attorney).

Held: Defendant did not reasonably and fairly exercise its discretion in deeming only a portion of the royalty expenses paid by plaintiff to its subsidiary as excepted from the addback requirements simply because subsidiary paid a smaller amount of corporation business tax (“CBT”) based on its New Jersey allocation factor which was lower than plaintiff’s New Jersey allocation factor. Where the subsidiary included the entire amount of the royalties as its income, and paid CBT on its allocated portion, and defendant did not dispute the validity of either plaintiff’s or the subsidiary’s allocation factor, the difference in their respective allocation factors, does not, without more, mean that plaintiff established that only a partial addback of the royalty payments was unreasonable. Plaintiff’s motion for summary judgment is granted.

In these four small claim suits, plaintiffs sought relief from defendants because their negligence caused damage to plaintiffs' vehicles. Of interest, plaintiffs sought damages because databases like CarFax mention the vehicles' newly-acquired accident histories that – plaintiffs claimed – diminished the vehicles' value even though they were repaired to their pre-accident condition and function. In finding these damages recoverable, the court held that fixing an amount for the stigma of this accident history did not require undue speculation. Such a claim, the court held, is merely subject to proof, which plaintiffs provided via an expert who testified that the "scarlet letter" of an accident history reduces a vehicle's value; in other words, the court found the claim cognizable because it is reasonable to assume that, all other things being equal, a buyer will likely pay less for a vehicle with an accident history than a vehicle without.

This appeal arises from a tragic highway collision in which defendant Stephen Rando's sports utility vehicle fatally struck plaintiff's son, Patrick Dutton, as he was riding his bicycle. Following a trial, the jury found that defendant was sixty percent responsible for the accident while Patrick was responsible for the remaining forty percent. The jury awarded plaintiff Mary Dutton, representing her son's estate, $500,000 in wrongful death damages and $108,000 in survivorship damages. The trial court entered judgment in the sum of $364,800 in damages and additional interest, fees, and costs.

Defendant appeals from the judgment memorializing the verdict and from the trial court's order denying his motion for a new trial. Among other things, defendant contends that the jury's award of wrongful death damages is unsupported by the evidence, particularly without any expert testimony to substantiate the pecuniary value of the loss of Patrick's advice, guidance, and companionship. This court rejects defendant's contention and reaffirms the long-standing principle, as expressed in Lesniak v. County of Bergen, 117 N.J. 12, 32-33 (1989), that expert testimony is not required to establish the pecuniary value of such services in claims for wrongful death. This holding is consistent with the common law in the fourteen other jurisdictions that, like New Jersey, restrict recovery in wrongful death actions to pecuniary loss, but do not require expert testimony to substantiate damages.

Defendant is charged in an indictment with attempted theft by extortion, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-5(c). The evidence presented to the grand jury shows that while defendant was located in Maryland, he called and emailed the victim's attorney in New Jersey and communicated threats to disclose private facts about the victim, who resided in New York, unless the victim agreed to contribute monies to an alleged charity defendant operated. The Law Division judge dismissed the indictment, finding New Jersey lacked territorial jurisdiction over the alleged crime, N.J.S.A. 2C:1-3.

The court reverses the dismissal of the indictment. The court concludes that defendant's delivery of the threats into, and the victim's attorney's receipt of the threats in, New Jersey constitute conduct occurring in New Jersey that is an element of the crime of attempted theft by extortion, and therefore there is territorial jurisdiction over the crime charged in the indictment under N.J.S.A. 2C:1-3(a)(1).

The issue in this opinion is whether plaintiff’s counsel can question his client about whether a passenger in plaintiff’s vehicle sustained an injury in order to help establish that plaintiff was also injured in the accident. The court ultimately ruled that the question was not relevant. There are many variables that factor into whether an individual sustains an injury in a motor vehicle accident. Some individuals are frail while others are not readily susceptible to injury. Certain individuals involved in the same accident may sustain the brunt of the impact from the other vehicle or may be positioned in such a way to cause them be more susceptible to being injured. In short, simply because one person gets injured in an accident does not mean that someone else in the same vehicle must have also sustained an injury.

This appeal affects members of the Public Employees' Retirement System (PERS) who converted their group life insurance policy into an individual policy, but died while their retirement applications were pending and whose beneficiaries chose "retired" benefits. In upholding N.J.A.C. 17:2-3.8(b) (clarifying the effective date for converted individual insurance policies) and N.J.A.C. 17:2-3.13 (addressing benefits payable to beneficiaries when members die with retirement applications pending), this court recognized the longstanding practice that beneficiaries of PERS members may receive either a "retired" benefit or an "active" benefit, but not both.

In this Consumer Fraud Act action, the Law Division found defendants engaged in an unconscionable commercial practice by filing a criminal complaint against plaintiff as a means of collecting a consumer debt. The parties settled on damages and defendants reserved the right to appeal the summary -judgment decision on liability. A different judge awarded plaintiff six percent of the counsel fees requested and no costs of suit or filing fees. Both parties now appeal.

This court holds defendants bargained away their right to challenge the summary judgment decision and dismisses their appeal pursuant to Winberry v. Salisbury, 5 N.J. 240, 255 (1950). With respect to the award of counsel fees, this court holds the Law Division did not follow the standards established by the Court in Rendine v. Pantzer, 141 N.J. 292, 316-45 (1995) and violated N.J.S.A. 56:8-19 because it failed to award plaintiff costs of suit and filing fees.

The Appellate Division’s opinion deprives trial judges of their discretion to make nuanced assessments of the nature and circumstances of offenses involving child pornography. Miller’s possession charge involved child pornographic material beyond that involved in his distribution charge -- there was pornographic material in Miller’s possession for an extended period of time that was not encompassed in the distribution charge. The possession and distribution offenses were therefore distinct, and the trial court appropriately determined that the offenses did not merge for sentencing purposes.

The issue in this opinion is whether it is appropriate, in the context of an automobile negligence case, for plaintiff's counsel to question his client as to whether his vehicle was "totaled" as a result of the accident with defendant's vehicle. The court determined this was not an appropriate inquiry. Because the term "totaled" has a colloquial meaning and an objective meaning within the insurance industry, whether a car was totaled does not provide the jury with meaningful information with respect to the severity of the impact. Accordingly, any line of inquiry regarding whether a vehicle was totaled in an accident in the context of a personal injury action is irrelevant.

Decedent’s parents, who are divorced, each filed petitions seeking control over their son’s remains pursuant to N.J.S.A. 45:27-22. Decedent’s father wished his son’s remains to be buried, while decedent’s mother wished her son’s remains to be cremated. Decedent was unmarried and died without issue, without a will, and without any written directive regarding his funeral or disposition of remains. While the Statute provides the order of persons to be granted the right to control the funeral arrangements and disposition of human remains, and the court is empowered to resolve disputes, there is no guidance in the Statute, or in New Jersey case law, on how to resolve a dispute that arises between even numbers of next-of-kin of equal statutory standing (i.e., surviving adult children, parents, siblings or other next-of-kin according to the degree of consanguinity). Finding that the statutory intent of the Statute is to adhere to the wishes and desires of the decedent, the court held that where next-of-kin of equal statutory standing find themselves in dispute over funeral arrangements and/or disposition of remains, the court should consider the following factors when selecting the person in control under N.J.S.A. 45:27-22: (1) Who is more likely to abide by the wishes and desires of the decedent as expressed through communications with another, to the extent the decedent made those communications; (2) Who established a closer relationship to the decedent and is thereby in a better position to surmise the decedent’s desires and expectations upon death; (3) Who is more likely to adhere to the religious beliefs and/or cultural practices of the decedent, to the extent that funeral arrangements and/or disposal of remains are addressed by such beliefs and practices, and to the extent that those beliefs and practices are relevant to inform the court as to the wishes, desires and expectations of the decedent upon death; and (4) Who will ultimately be designated administrator(s) of the estate and act in the best interests of the estate to: (a) determine the costs of funeral arrangements and/or disposition of human remains; (b) assess the ability of the estate to pay for the costs of funeral arrangements and/or disposition of human remains; and (c) arrange for alternative funding and/or resources to effectuate the funeral and/or disposition in the event that the estate does not have the ability to pay for the costs of human remains (i.e., locating funding from other next-of-kin, charities, fraternal organizations, religious institutions, governmental agencies, etc.). If material facts are in dispute, an expeditious plenary hearing should be held. When rendering its decision, the court should conduct a qualitative analysis of each factor, giving due weight to each as appropriate. Upon review of all relevant factors, the court granted relief to decedent’s father who had been the next-of-kin with a closer relationship, as he had lived with the decedent for several years up until his death.

The Appellate Division’s judgment is reversed. While N.J.S.A. 34:15-75’s language is unclear, its legislative history indicates a strong intent to provide temporary disability coverage to volunteer firefighters at the maximum compensation provided for in the Act.

Atlantic County Assignment Judge Julio Mendez dismissed the condemnation complaint as a manifest abuse of power because the Casino Reinvestment Development Authority (CRDA) did not provide reasonable assurances that the proposed redevelopment would come to fruition in the foreseeable future. The CRDA sought to condemn the property in furtherance of its mandate to promote tourism in Atlantic City. At the time of the decision under review, the CRDA had no specific redevelopment plans under consideration for the Project; it had not issued a request for proposals (RFP) to prospective developers, and no developer had committed to redeveloping within the South Inlet Mixed Use Development Project area. Nevertheless, the CRDA maintained it had a right to "bank" the property for redevelopment at some unspecified time in the future. Agreeing with Judge Mendez, the court affirms.

Appellant A.Y. appeals from a judgment civilly committing him to the Special Treatment Unit (STU) as a sexually violent predator pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38. He was convicted of the predicate act of second-degree sexual assault, N.J.S.A. 2C:14-2(c), and was diagnosed as suffering from Antisocial Personality Disorder and other conditions.

The State's experts opined appellant's personality disorder affects his cognitive, volitional, or emotional capacity, making it highly likely he will sexually reoffend if not kept under the care, control and treatment of a secure facility such as the STU. The State's experts relied, in part, on the results of the MnSOST-R and Static-99R actuarial instruments to determine whether A.Y. was highly likely to sexually reoffend.

Appellant argued he had regained volitional control over his sexually assaultive behavior through treatment and medication compliance. Appellant further argued the State's experts rendered inadmissible net opinions lacking any probability basis to find him highly likely to sexually reoffend. Appellant also argued the State's experts could not point to any methodology or objective standards used to reach their sexual recidivism risk findings.

The court found the State's experts relied on information reasonably relied on by experts in the field, the State's experts did not render inadmissible net opinions, the actuarial instruments were properly used by the State's experts in the formation of the basis of their opinions, and the methodology utilized by the State's experts satisfied the requirements imposed by the Court in In re Accutane Litig., 234 N.J. 340 (2018). Accordingly, the court determined the trial court did not abuse its discretion in admitting and considering the testimony of the State's experts, including their use and reliance upon the MnSOST-R and Static-99R actuarial instruments.

The court affirmed, finding the credible evidence in the record supported the trial court's finding that appellant suffered from a personality disorder that makes it highly likely he will not control his sexually violent behavior and will reoffend if not confined to the STU for treatment.

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.

This is an appeal from the decision of the trial court which found that a condition attached to a variance approval, which required the property owner to file a deed with restrictive covenants permitting only one of two units in this two family home to be rented to a tenant, was illegal and unenforceable. The court found it was contrary to public policy to impose as a condition of zoning board approval a restriction that treated a tenant different from an owner-occupant of property. The trial court reasoned the condition was arbitrary, capricious and unreasonable because it was based upon the status of the occupant of the property, rather than the use of the property. The court further found the condition reflected an illegal bias based upon a perceived notion that tenant occupied use was a less desirable use of property than occupancy by an owner.

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).

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.