Opinion Summaries

The trial judge found, in this action under the Sexual Assault Survivor Protection Act (SASPA), N.J.S.A. 2C:14-13 to -21, that plaintiff's claim that she did not consent to a sexual encounter, or that she submitted out of fear, was in equipoise with defendant's contention that the sexual encounter was consensual. But, in entering a restraining order in plaintiff's favor, the judge determined that plaintiff was extremely intoxicated and incapable of consenting. Applying the definition of "mentally incapacitated" in N.J.S.A. 2C:14-1(i), the court determined that the intoxication required to render the alleged victim incapable of consenting could have been voluntarily consumed. And the court held that the intoxication level required to render an alleged victim incapable of consenting must have caused a prostration of faculties. Because the judge did not apply the prostration standard, the court remanded for further proceedings.

When originally sentenced, defendant was found to be a persistent offender eligible for an extended term under N.J.S.A. 2C:44-3(a), even though his last prior conviction occurred more than ten years earlier; the sentencing judge determined that the probationary term imposed on that earlier conviction constituted "confinement" and therefore reasoned that defendant's "last release from confinement" occurred within ten years. We rejected the holding that probation may be equated with confinement and remanded for resentencing. State v. Clarity, 454 N.J. Super. 603 (App. Div. 2018). At the subsequent sentencing proceedings, the State came forward with new information purporting to show defendant violated the terms of the earlier probationary sentence and was imprisoned for thirty months as a result, so that his last release from confinement occurred within ten years. When confronted with this information at resentencing, defense counsel conceded defendant was eligible to be sentenced to an extended term as a persistent offender.

In this interlocutory appeal, the court is asked to determine whether the trial court's August 28, 2019 order violated N.J.S.A. 2A:162-22(a)(2)(a), the speedy trial requirements of the Criminal Justice Reform Act (CJRA), N.J.S.A. 2A:162-15 to -26, and Rule 3:25-4(c)(1). The order excluded 137 days – August 19, 2019 to January 2, 2020 – from the October 15, 2019 speedy trial deadline for defendant Vincent A. Paley. Defendant is consequently confined in jail until his scheduled January 2, 2020 trial date.

Petitioner, a former employee of the Newark school district, appealed from a Commissioner of Education decision finding that time she was employed in various classified Civil Service secretarial positions could not be used to calculate her entitlement to tenure under N.J.S.A. 18A:17-2. The statute provides that board of education employees holding secretarial or clerical positions obtain tenure after employment for three consecutive years and the beginning of the next succeeding school year. Although petitioner was employed in secretarial positions for more than three consecutive years, the Commissioner determined petitioner did not obtain tenure because under N.J.S.A. 18A:28-2 petitioner's employment in classified Civil Service secretarial titles did not satisfy the requirements of N.J.S.A. 18A:17-2.

The judgment of the Appellate Division is affirmed substantially for the reasons expressed in the majority’s opinion.

This case concerns superfluous language contained in orders relieving sex offenders from Community Supervision for Life, N.J.S.A. 2C:43-6.4, ordering that the court rendered no decision as to any obligations the registrants may have in any other jurisdiction or state as a result of their status as a convicted sex offender, and shall remain in full force and effect until relief is granted in other jurisdictions. The subject language was unnecessary and improper because the language was ambiguous, future, contingent, and uncertain. Therefore, this court reverses and remands for the entry of orders without the superfluous language.

In this Department of Corrections disciplinary appeal, the court holds that the Department acted arbitrarily, capriciously or unreasonably in denying a confirmatory laboratory test of a powder, seized from the inmate, which a field test indicated contained cocaine. The court reaches this conclusion in light of the field test's inherent limitations; the lack of other direct or circumstantial evidence that the inmate possessed drugs; the department's regulation compelling routine confirmatory tests of drug specimens; and the absence of any reasoned explanation for the Department's refusal to subject the seized powder to a confirmatory laboratory test.

Like the Appellate Division, the Court finds no statement of legislative intent, express or implied, that subsection (g) should be applied retroactively. Nor does it find that subsection (g) was curative, or that the parties’ expectations warranted retroactive application.

This novel case concerns a prosecutor's office's use of body wires on a paid informant, an anticipated trial witness for the State in a narcotics case, to secretly monitor and record a criminal defense attorney's pre-trial interview of that informant.

Defendant appealed from a judgment of conviction, arguing the trial court should have granted his motion to dismiss the indictment because the substance he possessed alpha-PVP, also known as "flakka", was not listed as a Schedule I drug under New Jersey law. When the federal government schedules a substance, N.J.S.A. 24:21-3(c) gives the Director of Consumer Affairs in the Department of Law and Public Safety thirty days to do one of two things: (1) control the substance consistent with the federal government's scheduling, or (2) file an objection in the New Jersey Register. Absent is a requirement that the Director give notice when he or she intends to control the substance as directed by federal law. Thus, if the Director fails to file an objection to the federal government's scheduling within thirty days, as was the case with alpha-PVP, the Director must control the substance consonant with federal law. Thus alpha-PVP was automatically included in Schedule I because the Director did not object to the federal government's designation.

Tax Court: Anita K. Leather v. Director, Division of Taxation, Docket No. 000852-2018; opinion by Sundar, J.T.C., decided October 23, 2019. For plaintiff – Anita Leather (Self-Represented); for defendant – Gurbir S. Grewal, ttorney General of New Jersey (Miles Eckardt, Deputy Attorney General).

Held: Defendant’s motion for summary judgment seeking dismissal of plaintiff’s complaint challenging the assessment of New Jersey gross income tax (“GIT”) is enied. Although legally obtained Department of Veterans Affairs (“VA”) disability benefits are exempt from GIT, if such benefits are fraudulently obtained, as plaintiff’s ex-husband did during tax years 2000-2009 when plaintiff and he were married and filed joint tax returns, then the benefits are subject to GIT under N.J.S.A. 54A:5-1(o) as income from a criminal act. As defendant assessed plaintiff after the normal three-year statute of limitations had expired, for suspension of the same and for the assessment to stand, the returns subject to assessment must have been “false or fraudulent” and “filed with an intent to evade tax.” N.J.S.A. 54A:9-4(c)(1)(B). Such intent must be evinced by “conduct intended to conceal, mislead, or otherwise prevent the administration and collection of the taxes imposed by the laws of this State.” N.J.A.C. 18:2-2.9(b); 2.9(d). The facts in support of defendant’s summary judgment motion only show that plaintiff did not know that her then-husband’s VA benefits were obtained by fraud, or whether the benefits were includable as income, and that she reported the benefits to the CPA who prepared the GIT returns. Defendant however presented no evidence to prove that plaintiff filed a false or fraudulent GIT return for tax years 2000-2009 with an intent to evade tax that was known to be due. The statute of limitations thus acts to bar granting summary judgment as a matter of law. The lack of evidence in support of an intent to evade tax similarly means that defendant is not entitled to summary judgment with respect to the 50% civil fraud penalty imposed on plaintiff. Because summary judgment is denied on statutory grounds, there is no need to address plaintiff’s equitable argument that she should be afforded “innocent spouse relief” like that available under the I.R.C. § 6015.

Neither membership nor prior approval of a retirement application is required for modification of a retirement selection where good cause, reasonable grounds, and reasonable diligence are shown. The Court remands this matter for further proceedings to allow petitioner Christine Minsavage the opportunity to argue in favor of modification under that standard.

The judgment of the Appellate Division is affirmed substantially for the reasons expressed in the majority’s opinion.

The court determined the evidence presented by the State and the rational inferences from that evidence, viewed in the State's favor, established the element of defendant's reckless operation of a vehicle so as to render the motion judge's dismissal of an indictment charging defendant with second-degree vehicular homicide of a child, N.J.S.A. 2C:11-5, and fourth-degree assault by auto of the child's mother, N.J.S.A. 2C:12-1(c)(1), arising from a tragic pedestrian-motor vehicle incident, a clear abuse of his discretionary authority.

Defendants filed a motion for partial summary judgment to which plaintiff responded with a cross-motion for partial summary judgment. On January 1, 2000, the parties entered into an Operating Agreement in order to form the limited liability company, PediatriCare. Subsequently, on March 12, 2001, the parties executed an amended and restated Operating Agreement, which was the operative document governing the relationship. In January 2016, plaintiff announced his intention to retire, which triggered Section 10 of the Operating Agreement. Section 10 provided the process for calculating the retirement purchase price, which required a net worth valuation methodology, in order to determine a value for a negotiated buyout price of plaintiff. However, various calculations of fair market valuation were done in order to effectuate a settlement as to a voluntary buy-out number, which the parties agree was never reached

Defendants then sought to invoke the net worth valuation of Section 10 of the Operating Agreement. Plaintiff argued that over a sixteen-year period, the Operating Agreement was modified to use the fair market value as opposed to a net worth valuation, based on the parties’ conduct over this time period. Defendants argue that the Operating Agreement is clear in its express provision concerning how to calculate the buyout price. Moreover, defendants note that the Operating Agreement also unambiguously states that it may be modified only through a vote of 80% of the membership interests in the company, and not through the course of conduct that plaintiff contends. The court found, upon reviewing the plain language of the Operating Agreement, and upon a lack of evidence that it was changed by the remaining members, that the net worth valuation methodology remained a part of the Operating Agreement and was the correct method for a retirement purchase price.

In addition, plaintiff suffered no oppression since the economic loss doctrine bars recovery when entitlement flows from the Operating Agreement. There was also no breach of fiduciary duty when the members acted in conformity with the provisions of the Operating Agreement. The court ultimately granted in part, and denied in part, defendants’ motion for partial summary judgment. As such, the court dismissed Counts I, II, and III of plaintiff’s second amended complaint.

Tax Court: EGDC C/O AM Resurg Mgmt v. Rutherford Borough, Docket Nos. 004521- 2012, 002730-2013, 002112-2014, 003453-2015, 003586-2016, 003546-2017; opinion by Orsen, J.T.C., decided October 16, 2019. For plaintiff — Amber N. Heinze (Irwin & Heinze, P.A., attorneys); for defendant — Kenneth A. Porro (Chasan, Lamparello, Mallon & Cappuzzo, P.C., attorneys).

Plaintiff, EGDC C / O AM Resurg Mgmt, sought property tax relief for the 2012 through 2017 years.Defendant, Rutherford Borough, filed a motion for partial summary judgment seeking entry of an order determining that plaintiff’ s properties be valued as a single economic unit along with two other properties owned by a third party.Defendant maintained that a reciprocal easement agreement executed between the parties created a unity of use and unity of ownership between all of the parcels.The court determined that the agreement failed to show a unity of use between the parcels. Moreover, the court found that the agreement did not create a unity of ownership or beneficial ownership between the separate owners of the parcels.Accordingly, the court denied defendant’ s motion for partial summary judgment for the parcels to be treated as a single economic unit.

In this case the court held the Director of the Division of Civil Rights does not have the general authority to sue in Superior Court, the Superior Court may not grant permanent injunctive relief on the director's complaint, and the New Jersey Law Against Discrimination does not recognize a claim for failure to contract with parents of a disabled child.

After the trial judge denied his motion to compel the State to provide him with discovery, defendant Herby V. Desir pled guilty to second-degree possession of "Methylenedioxy-N-ethylcathinone (MDEC/Ethylone)," a Schedule I narcotic drug, with the intent to distribute it in violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(4).1 Defendant reserved the right to appeal from the denial of his motion to compel discovery and his motion to suppress evidence seized during the execution of the search warrant. In accordance with the negotiated plea, the judge sentenced defendant to seven years in prison with three-and-one-half years of parole ineligibility.

Plaintiff A.J. appeals from a September 28, 2018 order sanctioning her by transferring custody of the parties' children to defendant R.J., for failure to comply with a prior order related to her unilateral intra-state relocation. We hold in cases where a court exercises its authority pursuant to Rules 1:10-3 and 5:3-7(a)(6), it must make findings under N.J.S.A. 9:2-4 that the sanction imposed is in the best interests of the children. We further hold the factors in Baures v. Lewis, 167 N.J. 91 (2001) no longer apply when a court is addressing an intra-state relocation, and instead, pursuant to Bisbing v. Bisbing, 230 N.J. 309 (2017), the court must apply N.J.S.A. 9:2-4. Because the trial judge applied the wrong law related to the intra-state relocation and did not apply N.J.S.A. 9:2-4 when he sanctioned plaintiff, we reverse and remand for further proceedings consistent with this opinion.

Tax Court: City of Newark v. Twp. of Jefferson, Docket Nos. 006324-2016, 007392-2015, 007399-2015, 007940-2014, 007937-2014; City of Newark c / o NWCDC v.Twp.of Jefferson, Docket Nos.006324 - 2016,007392 - 2015; City of Newark c / o Newark Watershed Corp.v.Twp.of Jefferson,Docket Nos.005970 - 2012, 005969 - 2012; City of Newark c/o Newark Watershed v.Twp.of Jefferson, Docket Nos.005555 - 2011, 008214 - 2010, 008215 - 2010; Newark Watershed Corp.v.Twp.of Jefferson;Docket Nos.013604 - 2009, 013606 - 2009, 013601 - 2009;opinion by Bianco, J.T.C., decided October 3, 2019. For plaintiff– Philip Elberg(Medvin & Elberg, attorneys);for defendants - Lawrence P.Cohen(Lavery, Selvaggi, Abromitis & Cohen, P.C., attorneys).

Held: The court affirmed the assessments of the subject property, awatershed, rejecting both the plaintiff’ s and defendant’s expert appraisers’ respective conclusions of value under the Sales Comparison Approach.The court also rejected plaintiff’ s expert appraiser’s conclusion that the highest and best use of the subject property was timber harvesting as unsupported since the expert appraiser could not find one sale of land in New Jersey that was soldfor timbering purposes.Plaintiff’ s expert appraiser further failedto show comparability between the heavily wooded and deed - restrictedsubject property in northern New Jersey and proposed comparable sales of deed - restricted farmland in southern New Jersey.The court alsorejected defendant’ s expert appraiser’ s proposed comparable sales of deed - restricted properties to not - for -profit corporations and public entities, given that he made no adjustments for the differences in the restrictions between those proposed comparables and the subject property.