Opinion Summaries

This appeal involves the standards and procedures for in camera review and judicial disclosure of a parent's presumptively-confidential juvenile records in child welfare litigation brought by the Division of Child Protection and Permanency ("the Division"), a context not addressed in existing case law.

The Law Guardian objected to the father having unsupervised parenting time with his eighteen-month-old daughter, having learned that he had been adjudicated delinquent as a juvenile several years earlier after for committing sexual offenses upon two minors. The father opposed the court reviewing or disclosing the juvenile records, asserting they are confidential under N.J.S.A. 2A:4A-60.

After hearing oral argument, the Family Part judge reviewed the father's records in camera. The judge then released the records in their entirety to counsel, pursuant to a protective order confining their use to the present Title 30 litigation. The father has appealed the judge's rulings.

The panel affirms the Family Part judge's decision to conduct an in camera review of the records. The panel also upholds the judge's denial of the father's request for the court to conduct an additional hearing after the in camera review was completed. However, because the court's decision to release the records without further hearing was not accompanied by a statement of reasons, as required by case law and Rule 1:7-4, the panel remands this matter for the court to reconsider the matter, make any appropriate modifications, and generate the requisite statement of reasons.

A statute of limitations enacted in 2009 bars residential foreclosure actions commenced after the earliest of three points in time: six years from "the date fixed for the making of the last payment or the maturity date set forth in the mortgage or the note," N.J.S.A. 2A:50-56.1(a), thirty-six years from the recording of the mortgage, N.J.S.A. 2A:50-56.1(b), and twenty years from an uncured default, N.J.S.A. 2A:50-56.1(c). In this appeal, the court rejected a mortgagor's argument that a foreclosure action was time-barred because it was filed seven years after a default and the acceleration of the loan. The court determined that the triggering event in subsection (a)'s six-year provision is the date "set forth in the mortgage or the note," and not the date upon which the mortgagee accelerated the loan, because of subsection (a)'s clear and unambiguous language and because subsection (c) provides a time-frame – twenty years – that begins to run upon an uncured default.

The court reverses and remands for reconsideration the trial court's order of pre-trial detention. The State charged defendant with cyber-harassment, N.J.S.A. 2C:33-4.1(a)(2); and retaliation against a witness, N.J.S.A. 2C:28-5(b), based on Facebook posts in which defendant, in coarse language, identified and castigated a witness at a murder trial, and expressed her hope that someone would "blow [his] glasses . . . off his face." The court reverses the trial court's findings of probable cause with respect to cyber-harassment, as the posts did not involve lewd, indecent, or obscene statements. Applying First Amendment principles governing "true threats," and "advocacy intended, and likely, to incite imminent lawless action," United States v. Alvarez, 567 U.S. 709, 718 (2012), the court affirms the trial court's finding of probable cause to charge retaliation, but concludes that the "weight of the evidence against the . . . defendant," N.J.S.A. 2A:162-20(b), was nonetheless weak, requiring reconsideration of the detention decision.

N.J.S.A. 9:17-43(a)(1) establishes a presumption that "[a] man is presumed to be the biological father of a child if . . . [h]e and the child's biological mother [were] married to each other and the child [was] born during the marriage." The decedent here died intestate, leaving siblings and a child, who was born when his mother was married to another man. Decedent's siblings claim this presumption, as well as other circumstances, required the court to assume that the mother's husband had "equitably adopted" the child and thereby severed the child's relationship to the decedent. The court affirmed the trial court's grant of summary judgment, holding that N.J.S.A. 9:17-43(a)(1)'s presumption had been rebutted by DNA evidence that conclusively established that the decedent fathered the child, and that the other circumstances were of insufficient weight to cause a break in that natural relationship.

Three issues were presented to the court as part of, or as a result of, the State’s speedy trial motion, each requiring application or interpretation of the Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to 2A:162-26: first, whether the case should be designated complex pursuant to N.J.S.A. 2A:162-22(b)(1)(g) and Rule 3:25-4(i)(7); second, whether any portion of time since indictment should be deemed excludable from speedy trial calculation due to extraordinary circumstances pursuant to N.J.S.A. 2A:162-22(b)(1)(f) and Rule 3:25-4(i)(6); and third and finally, whether excludable time attributable to one defendant should be attributable to all defendants who are joined for trial, even over their objection or opposition. The court found that the case should be designated complex and excluded 60 days from speedy trial computation. The court excluded an additional 8 days from speedy trial computation due to extraordinary circumstances. Finally, the court held that all post-indictment periods of exclusion are attributable to each defendant since defendants Johnson and Ukawabutu are joined for trial.

The four-year period of parole ineligibility imposed by the court in exercising its sentencing discretion pursuant to N.J.S.A. 2C:43-6(b) fell within the range authorized by the jury’s verdict and therefore did not violate Alleyne or the Sixth Amendment. In issuing a mandatory-minimum term, the court merely identified and weighed traditional sentencing factors to set an appropriate sentence within the statutory range set by the Legislature. The aggravating factors found by the court here were not the functional equivalent of the elements of an offense.

Rutgers University police arrested the defendant in New Brunswick and charged him with drunk driving. Rutgers and New Brunswick had an agreement that allowed Rutgers to patrol only certain streets within New Brunswick. The defendant was arrested on a street that fell outside that agreement raising a jurisdictional question. The jurisdictional question on appeal from municipal court turned upon interpreting two conflicting statutes. The first gives "any law enforcement officer" authority to arrest those committing Title 39 infractions, and more specifically, jurisdiction to arrest those who drive while intoxicated. See N.J.S.A. 39:5-25. The second statute limits university police jurisdiction to the boundaries of their campuses, unless the towns within which the universities are located agree to permit additional jurisdiction. See N.J.S.A. 18A:6-4.7. The court held that Rutgers University police had jurisdiction to make the stop and arrest the defendant, as well as charge him with driving while intoxicated. It reached this decision, in part, based upon the Legislature’s decision to amend N.J.S.A. 39:5-25 to allow “any law enforcement officer” to arrest drunk drivers, while knowing that case law had interpreted the statute to give statewide jurisdiction to municipal officers to make these arrests.

The issue before the Law Division, was whether an insurance carrier is barred from maintaining a subrogation claim on behalf of a unit owner against a condominium association if the association’s by-laws compel a waiver of such claims. The facts are straightforward. A unit owner at a condominium association obtained homeowner’s insurance. The unit owner’s unit sustained damages as the result of a fire. The carrier paid $222,172.84 to the unit owner. Thereafter, the carrier, as the unit owner’s subrogee, filed suit against various entities, including the condominium association, alleging that the condominium association failed to properly maintain the premises, which contributed to the fire. The carrier sought to recover the insurance monies it paid to the unit owner.

The association’s by-laws prohibited such subrogation claims. Based on the reasoning adopted by the Appellate Division in Skulskie v. Ceponis, 404 N.J. Super. 501, 514 (App. Div. 2009), which upheld a waiver scheme in a condominium community, the Law Division held that the carrier’s claim was barred and granted the association’s motion for summary judgment. The Law Division held that a contrary result would penalize all of the unit owners regardless of fault and pit unit owner against unit owner, and unit owners against the association--a result contrary to the concept of a condominium.

Plaintiff is a certified radon measurement and mitigation business regulated by the Department of Environmental Protection ("DEP") and the largest radon measurement business in the State. While the DEP was pursuing a regulatory enforcement action against the company, the company filed suit against the DEP and several DEP officials in the Law Division, alleging improper conduct and violations of its constitutional, statutory, and common-law rights.

Defendant moved to dismiss the company's constitutional and civil rights claims, asserting their alleged conduct was shielded under principles of qualified immunity. The trial court partially denied the immunity motion and ordered the parties to proceed with discovery.

The panel concludes the trial court misapplied principles of qualified immunity and should have dismissed the corresponding counts of the complaint. The DEP did not violate "clearly established" equal protection and due process rights by pursuing a regulatory enforcement action against the company, and by directing that communications between the company and the agency be channeled through their respective attorneys while the contentious administrative litigation was ongoing. Among other things, the panel notes that a regulatory agency must retain the discretion to interact with private parties in a manner it deems most efficient and effective, so long as it responds to outside inquires within a reasonable time and in a reasonable manner. Discovery on these claims was unnecessary, as defendants have qualified immunity from suit, not just a final judgment. The matter is remanded to adjudicate other open counts of the complaint.

In a separate unpublished opinion issued today, the panel affirmed in part the findings of the DEP Commissioner and the two administrative law judges that the company committed various regulatory violations, and reversed and remanded those findings in part.

In this appeal, a now-evicted tenant of a residential apartment, which he sublet to another, argued that only the subtenant, whose conduct generated the tenancy action, could be evicted. In affirming a judgment of possession, the court rejected the tenant's strained interpretation of the Anti-Eviction Act, N.J.S.A. 2A:18-61.1(c), and conclude that a wrongful act of one permits the eviction of all occupants.

We affirm defendant's judgment of conviction for fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d). Defendant claimed his guilty plea lacked an adequate factual basis and he demonstrated a colorable claim of innocence. We hold the trial court properly reviewed defendant's claims using the factors set forth in State v. Slater, 198 N.J. 145 (2009), and not a de novo standard of review. We conclude the trial court did not abuse its discretion in making these findings and that there was an adequate factual basis for the guilty plea.

Dissent and opinion filed.

The judgment of the Appellate Division is reversed substantially for the reasons expressed in Judge Espinosa’s dissenting opinion. Defendant’s guilty plea is vacated and the matter is remanded to the trial court for further proceedings.

Although the court affirmed the termination of parental rights of these parents, who executed an identified surrender and were removed to Peru, their country of origin, the court emphasized the need to put on the record all matters in child protective services litigation resulting in an order, even when the parties present consent to the order. Notice should also be provided to biological parents when the Division of Child Protection and Permanency seeks to vacate an identified surrender and seek termination of parental rights.

The issue in the opinion is whether an individual who expects to named as a defendant in a law suit cognizable in the State of New Jersey may file a petition pursuant to Rule 4:11-1 for pre-suit discovery. The court ultimately determined the rule allows both defendants and plaintiffs to obtain pre-suit discovery in limited circumstances. The opinion further addresses a recurring issue with respect to the propriety of utilizing Rule 4:11-1 to obtain discovery to investigate facts relevant to a potential claim prior to a law suit being filed. In the court’s view, this rule is often improperly utilized and misunderstood. The court attempts to provide some insight as to the proper circumstances under which a party may properly file a petition as contemplated by the rule. Rule 4:11-1 is routinely misunderstood because the plain language of the rule does not alert attorneys that the rule may only be utilized in those limited circumstances when there exists a genuine risk that testimony could be lost or evidence destroyed before the suit can be filed.

Plaintiff obtained a temporary restraining order against defendant under the Prevention of Domestic Violence Act based upon a “dating relationship” and allegations of simple assault and harassment by offensive touching. At the final hearing, plaintiff testified she engaged in a long-term consensual, but secret and sporadic intimate relationship with defendant which, in her words, involved “consensual rough sex.” Defendant disputed the existence of a dating relationship. The court held (1) plaintiff qualified as “victim of domestic violence” under the PVDA based upon her long-term but secret intimate relationship with defendant (2) defendant was entitled to assert the defense of consent to the allegations of bodily injury and offensive touching; and (3) plaintiff did not prove a final restraining order was “necessary” as she conceded defendant only visited her when invited to her home for “rough sex.”

The issue in this opinion is whether defense counsel can question plaintiff about whether or not the airbags deployed in his vehicle at the time of the accident in the context of an automobile negligence case. The questioning by defense counsel is a common line of inquiry in automobile negligence cases and is often the subject of in limine motions and/or objections at the time of trial. The court ultimately determined the question was improper. The court determined that whether or not the airbags deployed is not relevant in the absence of expert testimony because it does not, without more information, tend to prove or disprove an issue in the case. In the absence of expert testimony, the jury would not know the amount of force needed to trigger the specific airbag contained in the subject vehicle. Moreover, without an expert providing an explanation as to how an airbag system functions, a jury would not know the location of the airbag sensors on the subject vehicle. Accordingly, a jury would not be able to understand why an airbag system did, or did not activate, in a particular accident.

The issue in the opinion is whether it is appropriate in an automobile negligence case to utilize a modified version of Model Jury Charge (Civil) §5.34, “Photographic Accidents in Motor Vehicle Accidents,” when there is testimony regarding the damage to both of the motor vehicles involved in the subject accident, but no photographs were entered into evidence. In most automobile negligence cases, either the plaintiff or defendant produces photographs of the vehicles from the accident and requests the jury instruction set forth in Model Jury Charge (Civil) §5.34, “Photographic Accidents in Motor Vehicle Accidents.” This charge is commonly referred to as a Brenman charge because it is derived from our Supreme Court’s decision in Brenman v. Demello, 191 N.J. 18 (2006). The court ultimately permitted the charge to be given having determined the importance of the charge is not so much based on the existence of photographs in a particular case, but rather how a jury should evaluate motor vehicle damage in relation to the alleged injuries. In short, that evidence of vehicle damage is in the form of testimony rather than photographs should not govern whether the charge is given.

The court granted defendant’s objection to a levy on a bank account as to the part of the funds deposited from child support. Child support is exempt from levy because those funds belong to the child rather than the judgment-debtor parent. The court granted plaintiff’s motion to turn over funds as to the non-exempt funds.

Plaintiff suffered injuries while a forty-year-old man struck a piñata at a birthday party. The judge charged both Model Jury Charges (Civil), 5.20F(4), "Social Guest – Defined and General Duty Owed" (rev. Dec. 2014) (the Model Charge), and Exception (2) to the Model Charge. That exception states that "[i]n cases where the host is conducting some 'activity' on the premises at the time of [the] guest’s presence, [the host] is under an obligation to exercise reasonable care for the protection of [the] guest." This court held that when a plaintiff sustains an injury resulting solely from an "activity" on the host's property – as opposed to an injury caused by a combination of that activity and a physical dangerous condition on the property – then the judge should only charge Exception (2).

The panel addresses the strip search statute, N.J.S.A. 2A:161A-1 to -10, which affords certain protections to persons who are arrested or detained for non-indictable offenses, and whether the Attorney General Guidelines for strip searches extend those protections to persons arrested or detained for crimes.

The panel concludes that neither the legislative history nor the plain terms of the statute authorized the Attorney General to promulgate Guidelines to extend the statute's protections to persons detained or arrested for crimes. The panel further concludes that the strip search was justified here by probable cause and reasonable exigent circumstances, thereby satisfying the Fourth Amendment of the United States Constitution, and Article I, Paragraph 7 of the New Jersey Constitution.

The panel affirms the trial court's order denying defendant's motion to suppress five bricks of heroin seized from defendant's groin area pursuant to a strip search following defendant's arrest for indictable drug offenses.