Opinion Summaries

In these back-to-back appeals, defendant challenged numerous complaint-summonses issued in municipal court by the Jersey City Department of Housing, Economic Development and Commerce for municipal violations involving rental properties owned by various limited liability companies (LLCs) of which defendant was a member. In one appeal, defendant challenged an interlocutory order denying his motion to dismiss twenty-five complaint-summonses issued to him individually and granting the State's cross-motion to amend the complaints to name the LLC that was the record owner instead of him. In the other appeal, defendant challenged the order finding the LLC that was the record owner of the property guilty of violating a municipal ordinance following a trial de novo in the Law Division notwithstanding the fact that the LLC made no appearance through counsel and neither the municipal court nor the trial court inquired on the record to ascertain whether there was a knowing and voluntary waiver before proceeding with the trial.

The court reversed and remanded for entry of an order of dismissal without prejudice of the twenty-five complaint-summonses because they were issued to the wrong defendant and therefore fatally defective and both the municipal court and trial court erroneously relied on a Part IV rule governing civil practice to grant the State's cross-motion to amend. The court also reversed the finding of guilt of the LLC and remanded for a new trial because the absence of an appearance through counsel or a clear waiver of such in a quasi-criminal municipal court prosecution constitutes a violation of constitutional dimension requiring reversal.

Annese’s lay opinion testimony is rationally based on the witness’s perception and therefore satisfies the first prong of N.J.R.E. 701. Based on Annese’s extensive contacts with defendant, the absence of any other identification testimony, and the quality of the surveillance photograph, the testimony meets the second requirement of N.J.R.E. 701 because it will assist the jury in determining a fact at issue in defendant’s trial. Sanitized to avoid disclosure of defendant’s status as a parolee at the time of his alleged offense, Annese’s lay opinion testimony will not be so prejudicial that its probative value is substantially outweighed by the risk of undue prejudice, and that testimony should not be excluded under N.J.R.E. 403. The Court concurs with the Appellate Division that the trial court abused its discretion when it barred Annese’s lay opinion testimony.

The court addresses two Criminal Justice Reform Act provisions affecting a detained defendant's speedy trial rights.

First, the Act requires a defendant's release (subject to exceptions and conditions) if trial does not commence after detention of 180 days (not counting excludable time), but the Act directs a court to extend that period upon the return of a superseding indictment. N.J.S.A. 2A:162-22(a)(2)(b)(ii). Here, the trial judge mistakenly added another 180 days to defendant's detention, without considering the differences between the two indictments, and if the prosecutor could have obtained the superseding indictment sooner, as Rule 3:25-4(f) requires. Those two factors require a court to weigh the State's need for an extension against the unfairness to a defendant of granting one. Here, the prosecutor announced nineteen days after the superseding indictment's return that she was ready to proceed to trial. Therefore, an extension beyond nineteen days was unwarranted, because the State did not need more than that to prepare for trial.

Second, the Act requires a defendant's release (subject to conditions) after two years of detention (not counting excludable time attributable only to the defendant) if the prosecutor is not ready to proceed to trial. N.J.S.A. 2A:162-22(a)(2)(a); R. 3:25-4(d). Before the two years elapsed, the prosecutor announced she was ready to proceed to trial and a trial date was set. Then, the Supreme Court suspended criminal jury trials because of COVID-19. Defendant sought release after the two years elapsed during the shutdown, contending the prosecutor could not be ready if the court was not. The trial judge denied release and the court affirms. The two-year limit is measured by the prosecutor's readiness, not the trial court's. Defendant was not entitled to release under the "two-year clock" although, because of the pandemic, no court could conduct the trial the prosecutor was ready to try.

There are facts that support plaintiff’s claim that, had defendant not breached his duty by advising her to accept a guilty plea for offenses she did not commit, there would have been (1) no conviction to report, which would mean (2) no failure to report the conviction, which would mean (3) no inquiry leading to the discovery of prior failures to report, which, in turn, would mean (4) no imposition of disciplinary charges or the other adverse consequences plaintiff asserts as damages. Under the circumstances presented here, a reasonable jury could find that defendant’s breach of his professional duty was a substantial factor in -- and thus a proximate cause of -- plaintiff’s harm.

In this appeal the court held that defendant's Fifth Amendment right to counsel was violated during a stationhouse interrogation, reversing the trial court order denying defendant's suppression motion. Detectives at the outset of the interrogation advised defendant of her rights under Miranda v. Arizona, 384 U.S. 436 (1966). During the interrogation, defendant made several references to her need to speak with an attorney. The court held that defendant's statement, "[t]hat's why I feel I might need a lawyer," was sufficient to invoke her right to counsel. A detective then commented, "[w]ell, I mean that's a decision you need to make. . . . But if you didn't do anything [wrong], you certainly don't need to have [an attorney]." Defendant immediately responded that she felt she had not done anything wrong and elected to continue with the interrogation. She eventually made an inculpatory admission.

The court ruled the detective's brief, spontaneous comment undercut the Miranda warnings and impermissibly burdened the Fifth Amendment right to counsel. By suggesting in effect that innocent persons do not need an attorney, the detective implied that a request to terminate the interrogation to speak with counsel would evince a consciousness of guilt, thereby discouraging the assertion of the right to counsel. The court emphasized the State bears the burden to show scrupulous compliance with Miranda, adding that there is no "good faith" exception to the Miranda rule. Rather, the court held, a Miranda violation such as the one that occurred in this case triggers the exclusionary rule whether it was intentional or inadvertent.

In this appeal, we reject the claims of appellants who argued that Governor Murphy lacked the authority to issue Executive Order 128 (EO 128), which permitted New Jersey residential tenants to use their security deposits to pay rent. We conclude the Governor was authorized to enact EO 128 pursuant to emergency powers the Legislature delegated to the Governor under the New Jersey Civil Defense and Disaster Control Act, N.J.S.A. App. A:9-30 to -63. We further conclude that EO 128 does not violate appellants' rights under the New Jersey Constitution.

Plaintiff brought a civil action for damages, under N.J.S.A. 2C:21-22a, against defendant, a law school professor and Pennsylvania attorney, resulting from defendant's alleged unauthorized practice of law regarding his involvement in plaintiff's prior medical malpractice suit. Plaintiff also sought disgorgement of a $52,145.42 referral fee she claimed defendant received improperly.

The Law Division judge granted plaintiff's motion for summary judgment and then entered judgment against defendant for $308,181.68, with $52,145.42 representing the disgorged referral fee and $256,036.26 representing treble damages and attorney's fees, under N.J.S.A. 2C:21-22a. Because disgorgement is a remedy, not a cause of action, and because we find no evidence that defendant caused plaintiff to sustain an "ascertainable loss," a required element for a cause of action under N.J.S.A. 2C:21-22a, we reverse.

A finding of substantial compliance with the Tort Claims Act cannot be premised on comments made by plaintiff’s counsel in three different letters sent to lawyers representing the defendant public entities. H.C. Equities’ letters, individually or collectively, did not communicate the core information that a claimant must provide to a public entity in advance of filing a tort claim. See N.J.S.A. 59:8-4. H.C. Equities did not comply with the notice of claim provisions of the Tort Claims Act or file a timely motion to submit a late claim, and the trial court was correct when it granted the motion of the Authority to dismiss H.C. Equities’ claims against it, and the motion of the County to dismiss H.C. Equities’ tort claims.

During the arbitration of the parties' dispute, the arbitrator participated in settlement discussions. After he advised counsel he would be issuing an opinion in favor of defendant, plaintiff complained about the arbitrator's participation in the settlement discussions and the resumption of role of arbitrator. The motion judge denied defendant's motion to confirm the arbitration award and granted plaintiff's motion to vacate it on the basis the arbitrator had exceeded his powers. The motion judge apparently based those decisions on the lack of a written agreement regarding whether the arbitrator could participate in settlement discussions and resume arbitrating, citing Minkowitz v. Israeli, 433 N.J. Super. 111 (App. Div. 2013). Clarifying Minkowitz, the court held that although the parties had to agree to an arbitrator participating in settlement discussions and continuing to act as an arbitrator, that agreement did not have to be in writing. The court remanded for an evidentiary hearing.

The Court agrees with the Appellate Division that Martinez had a duty to Coleman under the circumstances presented here.

In this appeal, the State challenges the court's denial of a final extreme risk protective order under the Extreme Risk Protective Order Act of 2018, which empowers a court to remove firearms from a person who "poses a significant danger of bodily injury to . . . self or others" by possessing them. N.J.S.A. 2C:58-24(b). Because the trial court did not admit critical evidence, did not require or ensure the State presented information and evidence upon which it relied in support of its petition, and did not make essential findings of fact, the court reverses and remands for further proceedings.

*Courts, not the parties, oversee the jury selection process. On occasion, it may be appropriate to conduct a criminal history check to confirm whether a prospective juror is eligible to serve and to ensure a fair trial. That decision, though, cannot be made unilaterally by the prosecution. Going forward, any party seeking to run a criminal history check on a prospective juror -- through a government database available only to one side -- must present a reasonable, individualized, good-faith basis for the request and obtain permission from the trial judge. The results of the check must be shared with both parties and the court, and the juror should be given an opportunity to respond to any legitimate concerns raised.

NERA mandates that a defendant serve 85% of the sentence "actually imposed" for certain crimes before becoming eligible for parole. N.J.S.A. 2C:43-7.2(b). Allowing defendants to proceed with a Rule 3:21-10(b)(2) motion prior to serving that 85% would circumvent the Legislature’s objectives and its approach to violent crimes. Moreover, the timing of defendant’s motion aside, he failed to meet his burden under Priester since he cannot prove the necessary devastating effect that incarceration had on his health, in addition to various other Priester factors.

In this appeal, the court considered an internet-based company's method of communicating its terms and conditions in the ever -evolving arena of online consumer contracts. At issue is the validity of an arbitration provision embedded in those terms and conditions that "could" be accessed via a hyperlink before plaintiff submitted her request for defendant's services. Because the defendant company did not demonstrate that the consumer plaintiff was on notice of the arbitration provision prior to submitting her service request through the website, the court held defendant failed to establish plaintiff was aware of the arbitration provision.

Applying a fact-intensive inquiry, the court held plaintiff did not knowingly and voluntarily agree to waive her right to resolve her disputes in court. Accordingly, the court reversed the order under review that enforced arbitration, and remanded for reinstatement of the complaint.

The arbitrator’s award is supported by a reasonably debatable interpretation of the disputed provision, and therefore, the award should have been upheld on appeal.

A construction company and its principal, a resident and taxpayer of Bergen County, filed separate complaints challenging the proposed selection process for a general contractor to rehabilitate the historic Bergen County Courthouse. The City of Hackensack designated the county improvement authority (BCIA) as a "redevelopment entity" pursuant to the Local Redevelopment and Housing Law (LRHL). In turn, the BCIA solicited responses to a request for qualifications (RFQ), which set out the scope of the project and BCIA's intention to enter into a contract with a "redeveloper," the general contractor chosen. The selection process did not require public bidding under the Local Public Contracts Law (LPCL).

The Law Division judge dismissed both complaints, essentially concluding that because the BCIA was acting as a "redevelopment entity," its selection of a "redeveloper" was not subject to the LPCL. He dismissed both complaints with prejudice.

The court affirmed dismissal of the construction company's complaint on procedural and equitable grounds. However, the court reversed dismissal of the individual taxpayer's complaint, concluding that the BCIA generally was subject to the LPCL, and the "goods and services" at issue would normally be subject to public bidding. Although the BCIA was acting as a redevelopment entity under the LRHL, it could not avoid the strictures of the LPCL by simply denominating the general contractor as a "redeveloper." The court remanded the matter to the Law Division to permanently restrain the BCIA from proceeding with the selection process anticipated under the RFQ.

In this post judgment matrimonial appeal, the court addressed whether a trial court may determine that plaintiff's obligation to pay defendant previously awarded counsel fees was non-dischargeable as a domestic support obligation in any future federal bankruptcy proceeding pursuant to 11 U.S.C. § 523(a)(5) (Section 5). Defendant had twice tried unsuccessfully to discharge obligations in the bankruptcy court, thus, despite the lack of a pending bankruptcy proceeding, there was clearly an ongoing dispute as to the payment of counsel fees, which presented an actual controversy over which the trial court had jurisdiction. The court held the lack of a filed bankruptcy action does not bar review of non-dischargeability when the record itself presupposes it, as it did here.

Pursuant to 11 U.S.C. § 1328(a)(2), domestic support obligations as defined in Section 5 are not dischargeable in bankruptcy cases filed under Chapters 7, 11, 12, or 13 of the Bankruptcy Code. However, obligations arising solely under Section 15 may be dischargeable in Chapter 13 filings. 11 U.S.C. § 1328(a)(2). The court held the trial judge properly determined the counsel fee award to be non-dischargeable as a domestic support obligation. The underlying matter involved defendant's attempt to preserve his ability to visit with his daughters regularly, despite plaintiff's attempt to relocate them across the country. Accordingly, the trial court further established that the funds in this matter could have been used for the children's support including tuition and child support payments, such that the counsel fee award was tantamount to an award of support for the benefit of the children.

Tax Court: Senior Citizens United Community Services v. Dir., Div. of Tax’n; Docket Nos. 008789-2019 and 005999-2020, opinion by Cimino, J.T.C., decided July 1, 2021. For plaintiff – Dale W. Keith (Keith & Keith, attorneys).; for defendant – Jamie M. Zug (Gurbir S. Grewal, Attorney General of New Jersey, attorney).

Held: The Motor Fuel Tax and the Petroleum Products Gross Receipts Tax provide an exemption for special and rural transportation services provided by "autobuses." The parties disagree as to whether a definition of autobus found in Title 48 (Public Utilities) is incorporated into Title 54 (Taxation). Reviewing the legislative history as well as the wording of the amendments to the exemption statute over the years, the court held that the Legislature did not intend to incorporate the definition of autobus found in Title 48 into Title 54. As a result, the taxpayer qualifies for the exemption.

Plaintiff appealed from an administrative determination of the Board of the Teachers' Pension and Annuity Fund (TPAF) rejecting her request that a portion of interest payments owed on her pension loan be waived. In 2004, plaintiff secured a $26,860 pension loan from TPAF and retired after having made two payments through payroll deduction. The Division of Pensions and Benefits (Division) did not deduct plaintiff's loan payments from her distributions once she had retired, and she did not inquire about her loan repayment status between 2004 and 2017.

In September 2017, the Division notified plaintiff that an audit of pension loans revealed she owed an outstanding balance of $25,973.83 plus additional accrued interest of $21,227, for a total of $47,200.83 and that it would begin deducting loan payments from her monthly retirement allowance to cover the repayment of principal and interest. Plaintiff offered to repay the remaining balance and five years of interest, at four percent, in a lump sum payment if the Board of Trustees for TPAF (Board) would waive the interest accrued after the original five-year term. The Board rejected her offer and denied her request to waive the accrued interest assessed on her outstanding loan obligation. Notably, the State had entered into a closing agreement with the Internal Revenue Service (IRS) under which outstanding pension loans, plus interest, would be repaid to State-administered retirement systems, including TPAF, to protect their tax-qualified status. Plaintiff appealed the Board's determination.

The trial court affirmed the Board. The Internal Revenue Code, § 72(p), N.J.S.A. 18A:66-35, N.J.S.A. 18A:66-35.1, and N.J.S.A. 18A:66-63 controlled the interest obligation, even though it was the Division's fault the payments were not deducted from plaintiff's pension checks.

When a pension loan is not repaid within five years of its distribution, the loan funds are essentially converted to taxable income as a "deemed distribution." I.R.C. § 72(p)(2)(B) sets forth an exception from a taxable deemed distribution for a loan from a qualified employer plan, provided the loan is repaid within five years. I.R.C. § 72(p)(1) ("If during any taxable year a participant or beneficiary receives, directly or indirectly, any amount as a loan from a qualified employer plan, such amount shall be treated as having been received by such individual as a distribution under such plan."). Repayment of interest to TPAF is crucial to maintain the pension plan's tax-qualified status.

The Board's decision was not arbitrary, capricious, or unreasonable. The Board's decision comported with the IRS requirement that TPAF collect a sum sufficient to repay the amount borrowed with interest thereon.

In this one-sided appeal, plaintiff-landlord Talmadge Village LLC challenges the trial court's stay of the October 8, 2020 order ejecting defendant Keith Wilson from the apartment he shared with Talmadge's former tenant and restoring possession to the landlord. The lease had expired, defendant was never on the lease, and he never notified the landlord he lived there.

Plaintiff initiated an ejectment action to have defendant removed from the apartment. Following a hearing during which both parties participated, the trial court issued an order for possession in plaintiff's favor and directed defendant to vacate the premises. The judge then stayed enforcement of his order "pursuant to Executive Order 106 and P.L. 2020, c. 1 for the duration of the moratorium imposed thereby." Because the court concludes the governor's moratorium on evictions, as set forth in Executive Order 106, does not extend to persons having the legal status of squatters, the court vacates the stay.