Opinion Summaries

Following juvenile T.D.’s admission to committing the offense of shoplifting, under N.J.S.A. 2C:20-11, the court placed T.D. on a twelve-month deferred disposition and imposed a condition that T.D. complete thirty hours of community service. In light of the plain language of N.J.S.A. 2C:20-11(c) indicating that “any person convicted of a shoplifting offense shall be sentenced to perform community service[,]” the parties expressly contemplated that the community service hours imposed in this case were mandatory.

The matter was returned to court post-disposition on probation’s recommendation, due to T.D.’s failure to complete the community service hours. The court concluded that the community service hours were not mandatory, notwithstanding the language within subsection (c) of the shoplifting statute. The court reasoned that the Legislature did not explicitly apply the mandatory penalty provisions of the shoplifting statute to juveniles, as it has done with other statutory schemes. The court further found that the imposition of mandatory community service hours for shoplifting offenses was incompatible with the imposition of a deferred disposition resulting in the dismissal of the complaint, in the absence of any specific requirement to impose such a penalty on juveniles. Upon consideration of T.D.’s representations that she and her mother were experiencing homelessness, and mindful of the rehabilitative goals of the Juvenile Code, the court vacated the imposition of the community service hours as a condition of T.D.’s deferred disposition.

Appellant is a law firm who successfully represented plaintiff in the prosecution of a legal malpractice action. Appellant sought counsel fees from plaintiff that exceeded the amount of consequential damages proximately caused by the attorney/tortfeasor. Saffer v. Willoughby, 143 N.J. 256, 272 (1996). When plaintiff and appellant were unable to agree, the trial judge who presided over the legal malpractice action sua sponte decided to adjudicate the fee dispute over appellant's objection. This court reverses and holds the trial judge did not have subject matter jurisdiction to adjudicate this counsel fee dispute. Appellant was not a party in the case, had not filed a collection action against plaintiff, nor sought relief under N.J.S.A. 2A:13-5, commonly known as the Attorney's Lien Act.

The JLA does not violate the separation of powers doctrine, provided that the State presents a statement of reasons explaining its decision to depart from the twenty-five year mandatory minimum sentence specified in N.J.S.A. 2C:14-2(a), and the court reviews the prosecutor’s exercise of discretion to determine whether it was arbitrary and capricious. So that the standard adopted today may be applied in this matter, the Court remands to the sentencing court for further proceedings in accordance with this opinion.

The court reverses an order entered under RPC 3.7 barring a lawyer and every lawyer in his firm, save one, from representing themselves at deposition and trial in defense of a malpractice action brought against them by a former client. The court follows established federal authority in this circuit holding RPC 3.7 is a rule addressed only to a lawyer acting as an advocate at trial. Thus there is no ethical prohibition against a lawyer acting as an advocate in a deposition in a case in which the lawyer is likely to be a necessary witness at trial.

The court further holds that RPC 3.7 does not apply to a lawyer who is a party in the case. As lawyers have the same rights as other individuals appearing in our courts, they may appear in their own behalf at trial even if likely to be a necessary witness. Law firms, likewise, are to be treated as other entities, and thus must appear through counsel to the same extent. RPC 3.7 is fully applicable to lawyers appearing on the firm's behalf, even if the lawyer is employed by the firm. Imputed disqualification is limited as set forth in RPC 3.7.

To secure relief from an enhanced custodial sentence for a subsequent DWI conviction, a non-indigent defendant must establish that in the earlier uncounseled DWI proceeding, (1) he was not advised or did not know of his right to counsel and (2) had he known of his right to counsel, he would have retained a lawyer. A defendant contending he was indigent must establish that in the earlier uncounseled DWI proceeding (1) he was not advised and did not know of his right to appointed counsel, (2) he was entitled to the appointment of counsel under the applicable financial means test,R. 7:3-2(b), and (3) had he been properly informed of his rights, he would have accepted appointed counsel. Because denial of counsel is a structural defect in the proceeding, to secure relief from an enhanced custodial sentence, neither an indigent nor a non-indigent defendant must show that the outcome would have been different had he been represented. The Court removes the five-year limitation in Laurick petitions and amends Rule 7:10-2(g)(2), effective immediately, to provide the following: “(2) Time Limitations. A petition seeking relief under this Rule may be filed at any time.” Here, Patel’s unrebutted certifications established that his 1994 plea was uncounseled, and he had no obligation to establish that he would not have pled guilty or been convicted at trial had he been represented by counsel. The Court therefore reverses the judgment of the Appellate Division and remands the matter for proceedings consistent with this opinion.

The omission of second-degree kidnapping from the verdict sheet does not constitute plain error. The jury instruction accurately described the State’s burden of proof with respect to the elements of both first-degree and second-degree kidnapping, and directed the jury to consider second-degree kidnapping as a lesser-included offense if it did not find defendant guilty of the first-degree offense. Moreover, the evidence presented at trial did not provide a rational basis for a second-degree kidnapping conviction because the victims were not “release[d] . . . unharmed and in a safe place,” an element of the second-degree offense. N.J.S.A. 2C:13-1(c). Defendant was properly convicted of three counts of first-degree kidnapping. As to the sentence, the Court agrees with the Appellate Division that the terms imposed for most of defendant’s offenses constituted a proper exercise of the trial court’s discretion but concludes that the trial court should resentence defendant so that it may consider whether certain offenses committed within the same criminal episode warrant concurrent rather than consecutive sentences, as well as whether the decision to make the sentences consecutive rather than concurrent made the aggregate sentence imposed on defendant an abuse of discretion.

The trial court properly applied the factors identified in Yarbough for the imposition of consecutive sentences, and defendant’s sentence is consistent with the principles stated in Carey and does not shock the judicial conscience. The Court reverses the Appellate Division’s judgment and reinstates the sentence that the trial court imposed.

The Court affirms the suppression of DNA evidence from the first buccal swab. The trial court’s thorough and detailed reasons for denying admission of this evidence, under either of the State’s two inevitable discovery arguments, are clearly sustainable on appeal. However, the State’s application for a second buccal swab calls for a remand for further proceedings consistent with this opinion and its new test, derived in part from aspects of the independent source doctrine: To apply for a new buccal swab for DNA evidence under Rule 3:5A, the State must demonstrate probable cause for the new search. That showing may include evidence that existed before the initial invalid search, but cannot be tainted by the results of the prior search. In addition, to deter wrongdoing by the police, the State must show by clear and convincing evidence that the initial impermissible search was not the result of flagrant police misconduct.

The court affirms an order of the trial court that denied the State's request to medicate defendant involuntarily with antipsychotic medication to restore him to competency to stand trial. The court agrees with the trial court that the State did not satisfy the test under Sell v. United States, 539 U.S. 166 (2003), because the first factor is determined by consideration of defendant's probable sentence not simply the maximum sentence exposure for the offense charged. The trial court also must consider the potential effect of the medication on defendant's right to a fair trial when applying Sell. Because the Sell test was not satisfied, we have no occasion to determine whether our State Constitution would afford a defendant greater protection of individual liberty and privacy rights.

The Court is unpersuaded that N.J.A.C. 5:10-14.3(d) imposes any regulatory duty on landlords to cover in-unit radiators with insulating material or a cover. The regulatory scheme provides no evidence of an express or implied intent to include radiators as part of the “heating system” required to be insulated. Having concluded that no such regulatory duty has been imposed, and because the tenants in this case maintained exclusive control over the heat emanating from the radiator, the Court declines to impose on landlords a new common law duty to cover all in-unit radiators.

Review of the alleged instructional error must be moored to the facts, and the Court concludes that the omission of the instructional charges was not error under the circumstances of this case. The Court therefore reverses and remands to the Appellate Division for consideration of defendants’ arguments that have not yet been addressed.

Tax Court: NJ DEP/UFT c/o Cream Ridge Golf, LLC v. Twp of Upper FreeholdDocket No. 007457-2017; opinion by Gilmore, J.T.C., decided July 26, 2019. For plaintiff Cream Ridge Golf, LLC – Katherine B. Galdieri (The Kelly Firm, PC, attorneys); for plaintiff NJ DEP/UFT – Jamie M. Zug (Gurbir S. Grewal, Attorney General of New Jersey, attorney); for defendant – Dennis Anthony Collins (Collins, Vella and Casello, LLC, attorneys).

For-profit taxpayer/operator of State-owned golf course sought exemption from local property taxes for the subject property, which includes a golf course, pro shop, driving range, restaurant, and maintenance buildings. NJ DEP/UFT joined action in support of exemption. Taxpayer moved for summary judgment and the defendant, Township of Upper Freehold opposed. Held: Operation of State-owned golf course by for-profit entity furthers public purpose of development of lands by the State for recreational purposes. Operation of restaurant by for-profit entity on State-owned property supports primary recreational purpose of the subject property. Requirement under RFP, operation agreement, and lease agreement for payment of property taxes does not preclude application of local property exemption. Application for local property tax exemption subsequent to NJ DEP/UFT’s RFP procedure and entering into operation agreement is not in violation of public bidding laws or the square corners doctrine. The subject property qualifies for local property tax exemption under N.J.S.A. 54:4-3.3, 2.3, and 1.10.

Flaws in the substantive reasoning of the arbitration decision as well as procedural fairness considerations undermine confidence in the outcome of this arbitration enough to persuade the Court, in the interest of fairness, to require that a new arbitration be conducted.

In these consolidated appeals, the court considers the enforceability of the restrictive covenant agreements (RCAs) executed by the six defendants during their employment with plaintiff ADP, LLC. Each defendant was a top-performing sales representative. To award and incentivize their success, ADP invited defendants to participate in a stock award incentive program conditioned on their acceptance and execution of an RCA. The RCA included non-solicitation and non-compete provisions that restricted an employee from soliciting ADP's clients and competing with ADP upon leaving the company. The defendants left ADP at varying times and each accepted employment with the same direct competitor.

The court concluded that ADP demonstrated a legitimate and protectable interest in its customer relationships sufficient to justify enforcing the RCAs. However, the court also found the RCAs were overly broad and imposed an undue hardship on defendants. Therefore, the court blue-penciled the non-solicitation and non-compete provisions.

The court held that ADP may only prohibit its employees, upon separation from the company, from soliciting any of ADP's actual clients with whom the former employee was directly involved or who the employee knew was ADP's client.

As to the solicitation of prospective clients, the court found it unreasonable and onerous to restrict defendants from soliciting clients unknown to them while at ADP. Therefore, when working for a competitor, a former employee is only prohibited from soliciting a prospective ADP client if the employee gained knowledge of the potential client while at ADP and directly, or indirectly, solicits that client after leaving.

In considering the non-compete provision, the court determined it was reasonable for ADP to restrict its former employees, for a reasonable time, from providing services to a competing business in the same geographical territory in which the employee operated while at ADP.

The court reverses the summary judgment orders in favor of each defendant. Because each defendant breached the RCAs to some extent, the court remands the cases to the trial court to determine the appropriate remedy for the breach and to consider ADP's applications for counsel fees.

The Union City Zoning Board of Adjustment denied plaintiff's application for preliminary and final site plan approval, which required a number of bulk variances and a use variance. In an action in lieu of prerogative writs, the Law Division rejected plaintiff's claim that the two members of the Board should have recused themselves due to a conflict of interest. Applying the Supreme Court's recent decision in Piscitelli v. City of Garfield Zoning Bd. of Adjustment, 237 N.J. 333 (2019), this court reverses and remands the matter for the Law Division to conduct an evidentiary hearing to determine whether the two Board members should have recused themselves.

The beneficent goal of protecting domestic violence victims must be accomplished while abiding by well-established constitutional norms. Before issuing a warrant to search for weapons under the Act, a court must find that there is (1) probable cause to believe that an act of domestic violence has been committed by the defendant; (2) probable cause to believe that a search for and seizure of weapons is necessary to protect the life, health or well-being of a victim on whose behalf the relief is sought; and (3) probable cause to believe that the weapons are located in the place to be searched. Transposed into the context of a domestic violence search warrant for weapons, probable cause requires that the issuing court only have a well-grounded suspicion.

Under the circumstances, the trial court properly suppressed the identification in this case. The Court proposes revisions to Rule 3:11 to offer clearer guidance on which photos officials should preserve when they use an electronic database. In addition, to guard against misidentification, the Court places on the State the obligation to show that an eyewitness was not exposed to multiple photos or viewings of the same suspect.

Petitioner, a New Jersey resident, sought benefits under the Workers' Compensation Act (WCA), N.J.S.A. 34:15-1 to -128, alleging injuries both as the result of a specific incident, and occupational injuries "while performing repetitive duties" as an aircraft technician while employed by United Airlines at the airport in Philadelphia. The judge of compensation dismissed both petitions for lack of jurisdiction.

Relying on dicta in Bunk v. Port Authority of New York & New Jersey, 144 N.J. 176, 180-81 (1996), petitioner claimed residency alone was sufficient to confer jurisdiction. Alternatively, he argued that United's business was "localized" in New Jersey, and combined with his residency, New Jersey should exercise jurisdiction over his petitions.

The court affirmed the dismissal for lack of jurisdiction, concluding the dicta in Bunk was not controlling, and residency alone is insufficient to confer jurisdiction. The court also concluded that although United maintained a "localized" presence in New Jersey, petitioner lacked any employment relationship to that presence.

The State appeals the dismissal of two counts in the indictment that charged defendant with third-degree failure to register upon relocation as required by Megan's Law, N.J.S.A. 2C:7-2(a) and (d). When defendant was sentenced in 1999, the penalty imposed was a fourth-degree crime. The Law Division judge held the increased penalty violated the Ex Post Facto Clauses of the federal and state constitutions and dismissed those counts without prejudice to the State re-presenting the matter before a grand jury.

The court affirmed, but modified the order under review to permit amendment of the indictment to charge fourth-degree crimes.

The State failed to prove beyond a reasonable doubt that, under the totality of the circumstances, defendant’s statement was voluntary. Defendant may withdraw his guilty plea. The failure to record the identification procedure as required by Delgado requires a remand to allow defendant the benefit of a hearing to inquire into the reliability of the identification and any other remedy deemed appropriate by the trial court.