Opinion Summaries

The court considered whether it was proper pre-trial for the trial court to review in camera a statement taken by defendant's investigator of a State's witness and redact inculpatory portions. Defendant requested this procedure as he only wanted to use the portions of the statement that were favorable to him. The State was only provided with the redacted statement.

The court concluded the process employed by the trial court was contrary to the intent established under Rule 3:13-3 and State v. Williams, 80 N.J. 472 (1979). The panel stated if a defendant wishes to use a statement or information taken from a State's witness, he or she must decide prior to trial, advise the State, and produce the statement.

Redaction of the statement prior to disclosure is only appropriate for any asserted work product privileged information. If defendant refuses to declare his or her intentions prior to trial regarding a statement, a trial court must consider the appropriate remedy under Rule 3:13-3(f). The procedure employed here deprived the State and its witness of the opportunity to assess the veracity of the statement.

This appeal stems from a pregnancy discrimination suit brought by a female police officer against her employer. Plaintiff contends the employer violated the New Jersey Pregnant Workers Fairness Act ("PWFA"), a statute that has yet to be construed in a published opinion.

The PWFA amended the New Jersey Law Against Discrimination, effective January 2014, to explicitly prohibit pregnancy-based discrimination in employment and in other contexts. Among other things, the PWFA obligates employers, subject to an "undue hardship" exception, to provide "reasonable accommodations" in the workplace to pregnant women upon their request, and to not "penalize" such women because of their pregnant status. N.J.S.A. 10:5-12(s).

When plaintiff found out she was pregnant, she told her supervisors her doctor recommended she be taken off patrol. She asked to be transferred to a light-duty or less strenuous position within the Police Department. Plaintiff was consequently assigned to non-patrol duty, pursuant to the Department's maternity assignment policy. That policy allows pregnant officers to work a maternity assignment, but on the condition that the officer use up all of her accumulated paid leave time (e.g., vacation, personal, and holiday time) before going on the changed assignment. The maternity assignment policy differs from the Department's policy providing light-duty assignments for nonpregnant injured officers, because only the latter policy gives the Police Chief the authority to waive the loss-of-leave-time condition.

This court vacates the trial court's entry of summary judgment in favor of defendants. The Department's maternity assignment policy, as written, unlawfully discriminates against pregnant employees as compared to nonpregnant employees who can seek and obtain a waiver of the loss-of-leave-time condition. Such nonequal treatment violates the PWFA. The court upholds plaintiff's facial challenge to the policy and directs the trial court to grant her requests for declaratory and injunctive relief, leaving other remedial issues to be decided below.

The court vacates summary judgment in the employer's favor with respect to reasonable accommodation issues. There are genuine issues of material fact for a jury to resolve as to the reasonableness of the loss-of-leave-time condition and whether that condition is so harsh as to comprise an impermissible "penalty." The jury also must evaluate the employer's assertions of undue hardship and plaintiff's claims for monetary damages.

This court affirmed the denial of parole to a convicted murderer of a State Trooper. On remand, the full Board questioned Acoli about his rehabilitative efforts and his previous assertion that he was unconscious during the 1973 shooting. The Board found his responses were insincere, rehearsed, shallow, emotionless, contradictory, and implausible. After finding he lacked insight into his criminal behavior, the Board determined there was a substantial likelihood that Acoli would commit another crime if released at this time.

Judge Rothstadt dissented.

Tax Court: City of Plainfield v. Borough of Middlesex, Docket No. 000160-2019; opinion by Sundar, J.T.C., decided December 24, 2019. For plaintiff - John S. Wisniewski (Wisniewski & Associates, L.L.P., attorneys); for defendant - Michael P. O’Grodnick (Savo, Schalk, Gillespie, O’Grodnick & Fisher, P.A., attorneys).

Held: Property owned by plaintiff, City of Plainfield, located in defendant, Borough of Middlesex, is exempt from local property tax under N.J.S.A. 54:4-3.3. The exemption is not lost because a portion of the property is undisputedly used by defendant and the general public for public purposes, and the remainder is retained in its natural wooded state.

Tax Court: Jesse Wolosky v. Fredon Twp. and Michael & Penny Holenstein, Docket Nos. 008267-2016; 009548-2017; 010326-2018; opinion by Bianco, J.T.C., decided December 18, 2019. For plaintiff – Walter M. Luers (Walter M. Luers, LLC, attorneys); for defendant Fredon Twp. - William E. Hinkes (Hollander, Strelzik, Pasculli, Hinkes, Wojcik, Gacquin, Vandenberg & Hontz, L.L.C., attorneys); for defendants Michael and Penny Holenstein - Tara Ann St. Angelo (Gebhardt & Kiefer, P.C., attorneys); for the Amicus Curiae, Association of Municipal Assessors of New Jersey - John R. Lloyd (Chiesa Shahinian & Giantomasi, P.C., attorneys).

Petitioner applied to the Workers' Compensation Court for reimbursement of continued prescription opioid medication as part of his need for palliative care to treat a lower back injury suffered while he was working for respondent employer.

The compensation judge declined to compel the employer to pay for petitioner's prescription opioid medication in accordance with N.J.S.A. 34:15-15 of the Workers' Compensation Act. The statute requires employers to provide treatment to injured employees when the treatment is "necessary to cure and relieve the worker of the effects of the injury and to restore the functions of the injured member or organ where such restoration is possible . . . ." After six years of treating with the same physician who prescribed his pain medication, petitioner's pain had not been alleviated with either therapy or medication.

The court affirmed the compensation judge, holding petitioner failed to prove continued opioid treatment would cure or relieve his injury and return him to better function. The court found N.J.S.A. 34:15-15 requires proof that opioid medication provides curative relief and that continued use of opioids improves the function of the injured worker.

A jury convicted defendants, the mother and father of a two-year-old daughter, of reckless manslaughter and aggravated manslaughter respectively, and endangering the welfare of a child. The child died of blunt force head trauma and suffered numerous other internal and external injuries. Both defendants provided statements to law enforcement, but neither admitted causing the child's death, and the State had no eyewitnesses to any assault.

The State contended both defendants could be found guilty as principals or accomplices, and it urged the judge to provide instructions pursuant to N.J.S.A. 2C:2-6(c)(1)(c) (subsection 1(c)). That provides one may be an accomplice of another if "[w]ith the purpose of promoting or facilitating the commission of an offense . . . [and] [h]aving a legal duty to prevent the commission of the offense, fails to make a proper effort so to do[.]"

Relying on this court's decision in State v. Bass, 221 N.J. Super. 466 (App. Div. 1987), the only reported decision dealing with accomplice liability under subsection 1(c), and at the prosecutor's urging, the judge's jury charge carved out a separate basis for accomplice liability under Bass. The charge failed to tell jurors that in order to find a defendant guilty under subsection 1(c), they must find that defendant's failure to act was accompanied by a purpose to promote or facilitate the other's commission of a crime. The court specifically disapproved of Bass to the extent it implied otherwise, and reversed defendants' convictions.

The Court agrees with the Appellate Division’s determination that Rule 404(b) was inapplicable here but finds that defendant’s proffered evidence failed to meet the threshold requirement of admissibility: relevancy. It was therefore not admissible.

Tax Court: Valentina Tartivita v. Borough of Union Beach, Docket No. 007705-2018; opinion by Sundar, J.T.C., decided December 9, 2019. For plaintiff – Valentina Tartivita (Self- Represented); for defendant – John T. Lane, Jr., Esq.
Held: Plaintiff is entitled to the benefit of the relief under the Freeze Act for tax year 2018 based on a final judgment of the Monmouth County Board of Taxation for tax year 2017. There was no evidence of internal or external changes to the subject property, plaintiff’s residence. Further, defendant’s annual assessments do not equate to a “complete reassessment” under the Freeze Act statute N.J.S.A. 54:3-26 or a “district-wide reassessment” under the regulations, N.J.A.C. 18:12A-1.13; 12-1.14(c). Therefore, defendant failed to meet its burden that Freeze Act relief is unavailable to plaintiff for tax year 2018.

The court held that a New York doctor who provided medical treatment to a New Jersey resident at a New York hospital was not subject to personal jurisdiction in New Jersey in a lawsuit alleging wrongful death and survivor claims resulting from the medical treatment. Moreover, web-based videos and internet postings describing the doctor's practice are insufficient contacts by themselves to support personal jurisdiction.

This is the court's opinion after trial of the above-captioned matter wherein Chaxisma Byrd (“Taxpayer”) challenged the Final Determination of the Director, Division of Taxation (“Taxation”). Taxation denied Taxpayer’s claim for the New Jersey Earned Income Tax Credit (the “EITC”) in the amount of $1477 for the tax year 2016. For the reasons set forth below, Taxation’s decision is reversed.

In this matter, we address whether it was error to grant C.P.M.'s petition for expungement under the "crime spree" doctrine set forth in the 2018 amendment to N.J.S.A. 2C:52-2(a). C.P.M. filed a petition seeking to expunge several offenses from his criminal record, including: (1) an April 10, 2005 conviction for third-degree possession of CDS, in violation of N.J.S.A. 2C:35-10(a)(1); and (2) two June 22, 2005 convictions for fourth-degree burglary, in violation of N.J.S.A. 2C:18-2, and fourth-degree criminal mischief, in violation of N.J.S.A. 2C:17-3(a)(1).

Despite the requirement under N.J.S.A. 2C:52-2(a) that a court could only grant an expungement to an applicant who had not been "convicted of any prior or subsequent crime," petitions were periodically granted under a "single spree" or "crime spree" doctrine. In 2015, the Supreme Court definitively rejected the crime spree doctrine, holding that the Legislature clearly intended to "permit expungement of a single conviction arising from multiple offenses only if those offenses occurred as part of a single, uninterrupted criminal event." In re Expungement Petition of J.S., 223 N.J. 54, 73 (2015).

On October 1, 2018, N.J.S.A. 2C:52-2(a) was amended to permit the expungement of multiple crimes or offenses that "were interdependent or closely related in circumstances and were committed as part of a sequence of events that took place within a comparatively short period. . . ." The Legislature explained that the addition of the "interdependent or closely related in circumstances" and "within a comparatively short period of time" language was intended to allow expungement of "a so-called 'crime spree.'" S. Judiciary Comm. Statement to S. 3307 1 (L. 2017, c. 244) (emphasis added).

During the hearing on his petition, C.P.M. contended he was eligible for expungement under the crime spree exception in the newly amended statute. He argued that because he was under the influence of drugs during the several-month period in which the offenses occurred, his April and June 2005 convictions were sufficiently related. C.P.M. asserted that the trial court's analysis should include the motivations behind why a defendant committed the crimes.

The court granted the expungement petition under the crime spree exception in N.J.S.A. 2C:52-2(a). In relying on C.P.M.'s certifications, the judge concluded that C.P.M.'s drug use during the time period of the offenses was the "nexus" permitting a determination that the two incidents were closely related in circumstances.

This court reverses, finding the plain language of N.J.S.A. 2C:52-2(a) bars the expungement of C.P.M.'s convictions as the offenses were not interdependent or closely related in circumstances. The offenses at issue – drug possession, burglary, and criminal mischief – do not share common elements. The crimes also are not similar in nature. These offenses were not committed as part of some larger criminal scheme; each offense was a distinct crime perpetrated under entirely different and unrelated circumstances.

A defendant's self-serving declaration of his or her motivation behind crimes fifteen years after their occurrence is not a cognizable consideration within the meaning of the statute. We are satisfied the Legislature did not intend the result compelled by the trial court – that any person addicted to drugs could be eligible for an expungement of any crime the person alleged was committed while he or she was under the influence of an illegal substance.

Defendant filed a petition for the expungement of all records relating to her arrest and conviction for third-degree endangering the welfare of a child for causing the child harm that would make the child an abused or neglected child, N.J.S.A. 2C:24-4(a)(2). She contended that the 2016 amendments to the expungement statute, N.J.S.A. 2C:52-2(b), permitted the expungement of non-sexual Title 9 crimes.

Although the intent behind the amended N.J.S.A. 2C:52-2(b) strongly favors expungement for rehabilitated offenders, the statute includes a list of numerous crimes that are barred from expungement. The crime to which defendant pleaded guilty is included on that list. Therefore, the court found the plain language of the statute prohibited the expungement of any conviction under N.J.S.A. 2C:24-4(a).

The court granted leave to consider a trial court ruling about excludable time under the Criminal Justice Reform Act. In this case, excludable time was generated by two separate pretrial motions, which, for a while, were pending at the same time. The trial judge ordered that the excludable time permitted for one motion would not commence until the excludable time for the other motion ended. The court reversed, holding that the applicable statute and rule mandate that excludable time for an eligible pretrial motions commences when the motion is filed, and may expire in whole or in part simultaneously. Courts have no authority to "stack" excludable time periods.

In these related interlocutory appeals, the motion judges suppressed weapons – allegedly involved in crimes in both counties – seized after a motor vehicle stop. The court determined the first motion judge improperly invalidated the arrest warrant that precipitated the seizure by: viewing a video that was not seen by the issuing judge; excising the statement that related to the video; and concluding the affidavit no longer supported probable cause, without conducting an evidentiary hearing.

While that suppression motion was pending, the parties in the other county urged the judge to adjourn defendants' identical suppression motion, pending the first motion judge's decision. Thereafter, the second motion judge properly granted defendants' motion based on the collateral estoppel doctrine. Because the court determined the first judge improperly invalidated the arrest warrant – and the second judge correctly concluded the collateral estoppel doctrine applied to the suppression motion before him – the court was compelled to vacate the second judge's suppression order.

The court remanded both matters for further proceedings.

The court granted leave to appeal an order amending an indictment to reduce five counts alleging endangering the welfare of a child through sexual conduct from second-degree to third-degree charges. At issue is whether defendant, a pediatric surgeon who the State alleges molested four teenage patients during and after medical examinations, had a "legal duty for the care of" his victims or had "assumed responsibility for the care of" his victims within the meaning of second-degree endangering under N.J.S.A. 2C:24-4(a)(1).

The court held that although defendant had a professional duty to refrain from sexual contact with his patients, under the Supreme Court's narrow interpretation of N.J.S.A. 2C:24-4(a)(1) in State v. Galloway, 133 N.J. 631 (1993), the State must prove defendant had a "continuing or regular supervisory or caretaker relationship" with his victims to establish second-degree endangering. The evidence presented to the grand jury, even when viewed in the light most favorable to the State, instead suggests defendant, who treated the victims as a specialist for acute medical conditions, had limited and infrequent contact with his victims more akin to the "temporary, brief, or occasional caretaking functions" the Court determined in Galloway to fall under what now constitutes third-degree endangering.

The court also held that the legal duty for the care element of second-degree endangering cannot be established by proving defendant violated N.J.A.C. 13:35-6.3(c), a regulation of the Board of Medical Examiners prohibiting sexual contact between a physician and his or her patient. The regulation subjects physicians who violate its provisions to disciplinary measures relating to their licenses to practice medicine, but not criminal sanctions.

After criminal charges were lodged against him, Rockaway Township suspended Clifton Gauthier, a police officer, without pay. Gauthier successfully completed the pretrial intervention program (PTI), N.J.S.A. 2C:43-12 to -22, and the charges were dismissed. The Township reinstated him, and paid him withheld wages from the date of the PTI dismissal to the date of reinstatement. The Township refused to pay him wages from the time the charges were filed to the date of dismissal. The Civil Service Commission affirmed.

The court affirmed the Commission, as Gauthier's successful PTI completion was not one of the favorable dispositions of criminal charges which mandate payment of back wages enumerated in N.J.S.A. 40A:14-149.2. The statute predated the PTI scheme by years. The Court further held that the adoption of N.J.A.C. 4A:2-2.10(c), which exempts municipal police from its scope, was not thereby intended to require back wages to be paid.

In this vehicular homicide case, the State contended that defendant recklessly caused a pedestrian's death by speeding excessively. Defendant denied excessive speed and disputed that he caused the death of a pedestrian, alleging the pedestrian unexpectedly crossed the roadway outside the crosswalk and against the light. The court reverses defendant's conviction because the trial court should have delivered the model jury charge on causation, consistent with N.J.S.A. 2C:2-3(c), and it also should have instructed the jury, as defendant requested, that the motor vehicle code, N.J.S.A. 39:4-36(a)(4), requires pedestrians outside a crosswalk to yield to vehicles in the roadway.

Defendant was charged under N.J.S.A. 2C:40-26 with the fourth-degree criminal offense of driving with a license that had been suspended because of multiple previous drunk driving convictions.

The court rejects defendant's claims that the 180-day mandatory minimum jail sentence prescribed by N.J.S.A. 2C:40-26 is cruel and unusual punishment, and that it also violates federal and state constitutional principles of equal protection and due process.

The stringent penalty chosen by the Legislature is constitutionally permissible to advance legitimate policy objectives of deterrence and public safety.

The court also reaffirms that the clear terms of statute do not allow judges the discretion to impose a lesser sentence.