Opinion Summaries

In these three appeals, the court affirms the trial court's order dismissing without prejudice a six-count indictment against a physician, and her medical assistant and office manager. The State alleged the medical assistant practiced medicine without a license; she and the physician fraudulently billed for the medical assistant's services under the physician's name; and all three individuals conspired to commit this fraud. The trial court did not abuse its discretion because, most significantly, the prosecutor failed to adequately and accurately instruct the grand jury about what a medical assistant may do without encroaching upon the licensed practice of medicine. And, because the law does not clearly draw a line around a medical assistant's scope of allowable activities, prosecuting someone for crossing the line may violate the right to fair warning. The prosecutor also improperly referred to additional evidence that he did not present to the grand jury, and presented a questionable analysis of the amount of money involved in the charged offenses. And the indictment lacked sufficient detail to give defendants a fair opportunity to mount a defense.

Although the trial court had dismissed a previous indictment against defendants, the trial court also appropriately declined to dismiss the second indictment with prejudice, as there was insufficient evidence of prosecutorial vindictiveness.

Based on the record, Hannah has established that his counsel rendered constitutionally deficient representation and that, but for counsels’ errors, there is a reasonable probability that the outcome of the trial would have been different. The Court reverses the judgment of the Appellate Division denying Hannah post-conviction relief, vacates his judgment of conviction, and remands for a new trial.

These appeals arise from two motor vehicle accidents that occurred about a year apart in approximately the same location under similar circumstances. In both instances, a driver traveling westbound on Route 322 in Folsom Borough made an illegal left turn in the direction of one of two driveway entrances to a WaWa convenience store and struck a motorcycle traveling eastbound on the highway. In the first accident, the motorcycle driver was killed and his wife, who was a passenger, seriously injured. In the second accident, the motorcycle driver was seriously injured. The injured parties and the estate of the decedent filed suits against the entity that owns the convenience store and the State, which owns the highway and the land on which the store's driveway entrances are situated, alleging a number of claims sounding in negligence.

The court held that the commercial landowner who operates the convenience store did not owe a duty of care to plaintiffs to prevent drivers on the adjoining State highway from making an illegal left turn into the store's parking lot entrances. In addition, the court declined plaintiffs' invitation to impose on commercial property owners the obligation to warn business patrons of the obvious danger posed by driving over two sets of solid yellow lines to cross two lanes of opposing traffic on a highway with a fifty-five-mile-per-hour speed limit to enter a store parking lot. The court noted a nearby jug handle provided westbound drivers a safe alternative to access the store's parking lot through an intersection controlled by a traffic light.

The court also concluded the State is entitled to immunity for all claims asserted against it under three provisions of the Tort Claims Act: (1) law enforcement immunity, N.J.S.A. 59:2-4, for its alleged failure to enforce its regulations with respect to the design of the parking lot driveway entrances; (2) licensing immunity, N.J.S.A. 59:2-5, for any permitting decision, or alleged absence thereof, related to the construction and maintenance of the driveway entrances; and (3) inspection immunity, N.J.S.A. 59:2-6, for any alleged failure to inspect the driveway entrances during two highway improvement projects after their construction. In addition, the court found the statutory exception to immunity for dangerous conditions of public property did not apply because the driveway entrances, which were in the State's right-of-way, were not dangerous conditions and use of the driveway entrances with due care did not create a reasonably foreseeable risk of the injuries suffered by plaintiffs, which were caused by the illegal activity of the drivers who struck their motorcycles.

The Municipal Vacancy Law, N.J.S.A. 40A:16-1 to -23 (the Vacancy Law), sets out the procedure for filling vacancies in the office of mayor and members of a municipal council. Here, when a vacancy was created in a ward council seat, the remaining members of the city council resolved pursuant to N.J.S.A. 40A:16-5(b) not to fill the vacancy on an interim basis. The local party committee, however, relying on N.J.S.A. 40A:16-11, forwarded three nominees to the council, which refused to appoint any of them and retained the vacancy.

Plaintiffs, the nominee of the party committee and the committee, filed a complaint seeking to seat the nominee as ward councilperson and also alleging the council's refusal to seat the nominee violated the New Jersey Civil Rights Act (NJCRA). The trial judge found in plaintiffs' favor, ordered the nominee seated as ward council person, found a violation of the NJCRA, and awarded counsel fees and costs to plaintiffs.

The court reversed, construing the Vacancy Law as initially enacted in 1979, along with later amendments in 1980 and 1990, as providing the governing body with discretion to fill the vacancy on an interim basis or leave the seat vacant until the next general election.

Effective February 1, 2021, the Legislature abolished "medical parole." Instead, the Legislature empowered the courts to grant certain inmates "compassionate release" based on the "medical parole" criteria. To petition for compassionate release, an inmate must present a valid "Certificate of Eligibility for Compassionate Release" from the Department of Corrections, attesting that the inmate suffers from a terminal disease (meaning that the inmate will die within six months) or a permanent physical incapacity (meaning that the inmate is "permanently unable to perform activities of basic daily living", needs "24-hour care," and has a condition that "did not exist at the time of sentencing").

Because F.E.D.'s Certificate of Eligibility was invalid, the court affirms the trial court's denial of his petition. The two requisite medical diagnoses on which the certificate relied did not conclude that F.E.D. was terminally ill or unable to perform activities of basic daily living.

*The pre-voir dire disqualification, excusal, or deferral of jurors is not a stage at which defendant is entitled to be present or be represented, and defendant has failed to support his representative-cross-section claim.

As the Appellate Division instructed, the trial court on remand must (1) substantially consider the factors advanced in BMW and incorporated into New Jersey law by Baker and (2) must "ensure that the measure of punishment is both reasonable and proportionate to the amount of harm to the plaintiff and to the general damages recovered," in keeping with the guidance in State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 425-26 (2003). The Court modifies the Appellate Division's instructions to add that the trial court -- and all trial courts reviewing a punitive damages award issued by a jury against a public entity defendant -- must also apply the heightened scrutiny called for in Lockley and underscored in the companion case of Green v. Jersey City Board of Education, 177 N.J. 434 (2003).

The forfeiture of defendant’s pension under N.J.S.A. 43:1-3.1 does not constitute a fine for purposes of an excessive-fine analysis under the Federal or State Constitutions. Because the forfeiture is not a fine, the Court does not reach the constitutional analysis for excessiveness.

In State v. Hester, 233 N.J. 381 (2018), the Supreme Court held a 2014 amendment to N.J.S.A. 2C:43-6.4(d) that enhanced the penal consequences of a conviction for violating the conditions of community supervision for life (CSL), including by increasing the degree of the crime from a fourth-degree offense to a third-degree offense, constitutes an unconstitutional ex post facto law as applied to individuals who violate the conditions of CSL following the amendment's effective date. In this appeal, the court holds that under the savings statute, N.J.S.A. 1:1-15, an individual who violates the conditions of CSL following the 2014 amendment may be charged with, and convicted of, the fourth-degree offense extant under N.J.S.A. 2C:43-6.4(d) when he or she was sentenced to CSL.

The right of privacy, and particularly privacy in one’s telephone conversations, is among the most valued of all rights in a civilized society. McQueen’s custodial status in the stationhouse did not strip him of all constitutional protections. Article I, Paragraph 7 broadly protects the privacy of telephone conversations in many different settings. McQueen and Allen-Brewer had a reasonable expectation of privacy in their conversation in the absence of fair notice that their conversation would be monitored or recorded. The recorded stationhouse telephone conversation was not seized pursuant to a warrant or any justifiable exigency and therefore must be suppressed.

Tax Court: Ian M. Kunesch v. Andover Twp., Docket Nos. 007226-2013; 007942-2014; 003388-2015; 003298-2016; 000657-2017; 000823-2018; 002702-2019, opinion by Bianco, J.T.C., decided July 29,2021. For plaintiff – Jeffrey D. Gordon (Archer & Greiner, PC, attorney), for defendant – Fred Semrau and Robert J. Rossmeissl (Dorsey & Semrau, LLC, attorney).

Plaintiff, Ian Kunesch ("Mr. Kunesch"), timely filed local property tax appeals with this court for tax years 2013-2019, challenging the assessments imposed by defendant ("Township") on certain real property (“Property”) located in the Township. The Township moved to dismiss those complaints on grounds Mr. Kunesch is not an aggrieved taxpayer within the meaning of N.J.S.A. 54:3- 21, given that he executed a deed in lieu of foreclosure to the lending bank, which stripped him of standing to bring his tax appeals. The court determined that the Township’s motions were without merit, and that Mr. Kunesch has standing to proceed. The court concluded that the lending bank and Mr. Kunesch intended for Mr. Kunesch to remain the owner and in possession of the Property unless he defaulted, at which point the second of two Deeds in Lieu of Foreclosure executed would be recorded. Furthermore, the court found that the second Deed in Lieu of Foreclosure is more appropriately characterized as an equitable mortgage because it was in essence security for a loan. Finally, the court rejected the Township’s argument that Mr. Kunesch was judicially estopped from bringing these tax appeals by finding no miscarriage of justice in proceeding with these matters.

The relevant date for purposes of determining whether subsection (g) is effective as to a particular registrant is the date on which that registrant committed the sex offenses that would otherwise bar termination of registration under subsection (f). Thus, subsection (g) does not apply to registrant.

The Dog Bite Statute’s strict liability standard applies to the claim of an independent contractor who agrees to care for a dog. The statute’s plain language reveals no legislative intent to recognize an exception to strict liability under the Dog Bite Statute for any category of injured plaintiffs. See N.J.S.A. 4:19-16. However, the Comparative Negligence Act, N.J.S.A. 2A:15-5.1 to -5.8, applies to plaintiff’s strict liability claim, and plaintiff’s status as a professional experienced in the care of dogs is relevant to an allocation of fault. Genuine issues of material fact warrant the denial of plaintiff’s motion for partial summary judgment on her common-law claims.

A jury found defendant Andrew Howard-French guilty of first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(2); and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2(a). The offenses arose from the death of a twenty-three-month-old child who was under defendant's care.

The court holds the trial judge did not abuse his discretion in admitting: defendant's prior bad acts in accordance with N.J.R.E. 404(b)(2); the treating physician's testimony regarding the child's injuries; a non-sanitized statement by an investigating detective accusing defendant of lying during an interrogation of defendant; and the State's forensic pathology expert's testimony regarding the child's cause of death in accordance with N.J.R.E. 705. Defendant's arguments that trial counsel's failure to object to the testimony by the treating physician, the detective, and the expert, lack merit. The admission of the testimony was not plain error clearly capable of producing an unjust result.

The court holds that the trial judge did not err in using the word "flight" in the jury charges as was it taken verbatim from the Model Jury Charges (Criminal), "Endangering Injured Victim (N.J.S.A. 2C:12.12)" (rev. Mar. 14, 2016). The court also concludes the trial judge did not err in failing to sua sponte instruct the jury on the affirmative defense of summoning medical treatment under N.J.S.A. 2C:12-1.2(c) because there was no evidence supporting the charge and, to the contrary, there was sufficient evidence that defendant endangered the injured child by leaving him in defendant's apartment with no other adult present.

Finally, even though the court normally does not entertain ineffective assistance of counsel claims on direct appeal, we address and dismiss defendant's claims because they relate to counsel's failure to object to evidence, which as noted, was properly admitted.

The immunities from liability provided by the Good Samaritan Act, N.J.S.A. 26:2B-16, and most TCA provisions invoked by defendants do not apply here. Defendants’ actions may be entitled to qualified immunity under certain TCA provisions on which defendants rely, however, if the involved officers’ actions were discretionary, rather than ministerial, in nature. In this instance, because of a factual dispute, that determination is for the jury to make upon remand.

The mandatory period of parole supervision imposed under NERA is part of a unitary sentence that is penal in nature. The State has kept Njango in prison for more than a year beyond his release date. Without credit for the excess prison time, Njango would serve more time in the custody of the Department of Corrections than authorized by his sentence. Under the fundamental fairness doctrine -- an integral part of the due process guarantee of the New Jersey Constitution -- the excess time Njango erroneously served in prison must be credited to reduce the period of his parole supervision.

*To avoid serious constitutional concerns, the Court interprets the statute narrowly and holds that N.J.S.A. 39:3-33 requires that all markings on a license plate be legible or identifiable. If a frame conceals or obscures a marking in a way that it cannot reasonably be identified or discerned, the driver would be in violation of the law. In practice, if a registration letter or number is not legible, the statute would apply; but if a phrase like "Garden State" is partly covered but still recognizable, there would be no violation.

*To avoid serious constitutional concerns, the Court interprets the statute narrowly and holds that N.J.S.A. 39:3-33 requires that all markings on a license plate be legible or identifiable. If a frame conceals or obscures a marking in a way that it cannot reasonably be identified or discerned, the driver would be in violation of the law. In practice, if a registration letter or number is not legible, the statute would apply; but if a phrase like "Garden State" is partly covered but still recognizable, there would be no violation.

The court holds that a parent's status as a recreational marijuana user cannot suffice as the sole or primary reason to terminate that parent's rights under Title 30, unless the Division of Child Protection and Permanency proves with competent, case-specific evidence that the marijuana usage endangers the child or children.

This approach aligns with existing Title 30 case law, the recently adopted constitutional amendment partially decriminalizing non-medicinal marijuana usage, N.J. Const. art. IV, § 7, ¶ 13, and related implementing statutes, as well as child welfare cases from other states.

In this case, the parents each admitted they had used marijuana on several occasions while caring for their preschool child, and the Division presented unrebutted expert testimony explaining the risks of harm associated with that conduct. Beyond that, the trial judge had substantial other evidence to further support his finding that all four prongs for termination under N.J.S.A. 30:4C-15.1(a) had been proven by clear and convincing evidence. Hence, the judgment is affirmed.

Plaintiff Palisades Insurance Company appeals from a February 28, 2020 order granting defendant Horizon Blue Cross Blue Shield of New Jersey's motion for summary judgment and dismissing its complaint with prejudice. Plaintiff is an automobile insurance company that provides mandatory personal injury protection (PIP) benefits for medical expenses arising out of injuries sustained during car accidents. Pursuant to N.J.S.A. 39:6A-4.3(d), plaintiff allows its customers to designate their health insurer as primary for payment of car-accident-injury-related expenses, which election results in a premium reduction. The insureds named in plaintiff's complaint each elected to have defendant act as the primary payor. Despite the designation, plaintiff received and paid the claims, before they were properly submitted to defendant. On appeal, plaintiff asserts that it has a right to be reimbursed for the medical expenses it voluntarily paid under a theory of subrogation.

After reviewing the provisions of the New Jersey Automobile Reparations Reform Act (No-Fault Act), N.J.S.A. 39:6A-1 to -35, the Coordination of Benefits scheme (COB), N.J.A.C. 11:3-37.1 to -37.14, and case law, the court concluded that no cause of action for subrogation exists to allow a PIP carrier to pursue reimbursement from a health insurer for claims mistakenly paid out of turn. Plaintiff's remedies are to deny the claim upon receipt, recover payments from the medical providers, request that the insureds submit their claims to defendant and pursue an appeal if coverage is denied, or obtain an assignment of rights and pursue the appeals on the insureds' behalf. In addition, when a health carrier is exempt from providing benefits, the COB regulations allow the PIP carrier to recoup the amount of the reduced premium from its insured. None of these remedies were pursued by plaintiff in this case.

The court also concluded that further discovery would be futile, as the sought-after information is not capable of overcoming the legal obstacle faced by defendants: the absence of a legal right of subrogation to recoup payments mistakenly made out of turn.