Published Appellate Court Opinions

At issue is whether the holding in State v. Jackson, 243 N.J. 52 (2020), that the Sixth Amendment requires a defendant be permitted to cross-examine a cooperating codefendant with respect to their maximum sentencing exposure prior to their entry into a plea agreement, should be given full retroactive application.  The court concludes that Jackson does not apply to convictions for which direct appellate review was complete when the opinion in Jackson was issued. As a result, the court affirmed the denial of post-conviction relief to defendant, whose direct appeal of her convictions for three offenses arising out of a mortgage fraud scheme was completed approximately a month before the Supreme Court issued its opinion in Jackson.

The court was asked to consider whether a defendant, serving sequentially several consecutive periods of driver's license suspensions imposed for various convictions including driving while under the influence (DWI) offenses, can be charged with violating N.J.S.A. 2C:40-26(b) for driving during the suspension period for a non-DWI-related offense while awaiting commencement of a court-imposed DWI license suspension.  The court determined because the effective date of defendant's most recent DWI-related conviction was delayed only due to other consecutively imposed accumulated sentences, defendant violated N.J.S.A. 2C:40-26(b) when he operated his vehicle prior to the conclusion of the suspension for his DWI offense.

The court distinguished State v. Perry, 439 N.J. Super. 514 (App. Div. 2015).  It noted the Perry court determined N.J.S.A. 2C:40-26(b) "punishes those who drive while suspended for violations of the DWI . . . law . . . when they drive during the court-imposed period of suspension," and it was not intended to criminalize "driving during a period of administrative suspension" when driving privileges could have been restored but for the defendant's failure to complete the process for administrative restoration.  Id. at 531-32.  

The court observed defendant was not driving during a period of administrative suspension after having completed his court-ordered suspension.  Rather, he had not yet completed his suspension term for the most recent of his four DWIs.  The court concluded it would be illogical for defendant to avoid a conviction for violating N.J.S.A. 2C:40-26(b), in light of defendant's four prior DWIs, merely because the suspension for his latest DWI had not yet commenced because he incurred multiple other intervening license suspensions.

         The court adopted the rationale of State v. Cuccurullo, 228 N.J. Super. 517, 520 (App. Div. 1998), holding in the context of applying the enhanced penalties under N.J.S.A. 39:3-40 for driving while suspended for DWI, that "[a] person is 'under suspension' from the time that the suspension is imposed even though the period of suspension may not begin until later."  Ibid.

In these back-to-back appeals consolidated for the purpose of issuing a single opinion, the court addressed the statutory receiver requirements for discharge under the New Jersey Business Corporations Act (BCA), N.J.S.A. 14A:14-1 to -27, and New Jersey Court Rules 4:53-1 to -9.  Appellants Mori Restaurant, LLC (Mori), and Lucille Lopez and Robert P. Lopez, Jr. (the Lopezes), appealed from a November 17, 2023 Law Division order denying reconsideration of an October 6, 2023 order, which discharged Alan I. Gould, Esq. as the court-appointed statutory receiver. 

Following the court's review of the record and applicable law, it concluded the Law Division improvidently granted Gould's discharge as the statutory receiver because he failed to comply with mandatory provisions of the BCA, including written notice to creditors within thirty days of appointment, and court rules, requiring an accounting and inventory.  The court reversed and remanded for further proceedings consistent with the opinion.  In the unpublished section of this opinion, the court addressed other discrete matters. 

Plaintiffs in the underlying out-of-state litigation served a subpoena on a non-party, New Jersey resident, seeking his deposition pursuant to Rule 4:11-4(b).  The trial court denied the witness's motion to quash the subpoena and for a protective order.  On appeal, the witness argued the trial court had misapplied the law regarding discovery of non-party witnesses and had failed to recognize that the subpoena was harassing and sought duplicative, irrelevant, and confidential information. 

The court affirmed the order. Acknowledging a court must consider certain factors when addressing a discovery dispute involving a non-party witness, the court held the trial court had not abused its discretion or misapplied the law when it concluded the non-party witness could not avoid being deposed by claiming a lack of relevancy or relying on unsupported, blanket assertions of harassment and confidentiality.   

In this matter, the court considered whether an employee in the Public Employees' Retirement System (PERS) who submits an application for retirement benefits and thereafter, prior to the effective retirement date, begins the process to attain a nomination for a Superior Court judgeship, has violated N.J.A.C. 17:1-17.14(a)(2), which requires a person collecting PERS retirement benefits to complete 180 days severance from their employment prior to any further public employment in New Jersey. Specifically, under the regulation, if the retiree has a "pre-arranged agreement for reemployment" prior to their effective retirement date, the retiree has not satisfied the severance of employment requirement.  N.J.A.C. 17:1-17.14(a)(2)(v).

Appellant was nominated by the governor for a Superior Court judgeship and confirmed by the Senate in the weeks after her retirement date. Prior to taking the judicial oath, the Division of Pensions and Benefits (Division) advised appellant there was no complete termination of the employment relationship because of the "pre-planning that occurred prior to [her] December 1, 2021 retirement and during the 180 days after [her] retirement."  The PERS Board (Board) affirmed the decision.

After a careful review, the court determined that the Board mistakenly applied the regulation to these specific circumstances.  The regulation prohibits a "pre-arranged agreement," not "pre-planning" that may occur prior to a retirement date.  The nature of the judicial selection process precludes any ability to make an "arrangement" for the position as an individual seeking a judgeship has no control over the process.  There also was no "agreement" that appellant would be offered the judgeship until, at the earliest, the date the Senate confirmed the nomination, which did not occur until after her retirement date. 

To date, appellant has not taken the judicial oath, and considerably more than 180 days have passed since she terminated her prior employment.  Therefore, the court found appellant did not violate N.J.A.C. 17:1-17.14(a)(2). Appellant is entitled to accept the judgeship by taking the judicial oath of office without foregoing her PERS pension and benefits.  The court reverses the Board's final administrative decision. 

On leave granted, the court reviewed a Law Division order denying defendant's motion to permit his expert to testify remotely at an evidentiary hearing in this criminal matter without the State's consent and at his jury trial.  The motion was based on the expert's medical condition and desire to remain at home to care for his ill spouse.

At issue were the seemingly conflicting provisions of: (1) Rule 1:2-1(b), which authorizes the trial court to allow testimony in open court by contemporaneous transmission from a different location upon a showing of good cause and with appropriate safeguards; and (2) the October 27, 2022 Order of the Supreme Court which provides that evidentiary hearings in criminal matters shall procced in person, unless all parties consent to proceed virtually, and that criminal jury trials shall proceed in person.

The court held that Rule 1:2-1(b) and the October 27, 2022 Order can be read harmoniously.  While the October 27, 2022 Order establishes a general framework for how the many categories of proceedings heard in our courts will take place in light of the lessening need for the restrictions imposed in response to the COVID-19 emergency, the Order does not limit the authority granted to the trial courts in Rule 1:2-1(b) to permit the remote testimony of individual witnesses at proceedings that will otherwise take place in person.

The trial court, therefore, had the authority to hear motion by defendant to permit his expert to testify remotely in this criminal matter at an evidentiary hearing without the State's consent and at his jury trial.  The factors established in Pathri v. Kakarlamath, 462 N.J. Super. 208, 216 (App. Div. 2020), issued prior to both the adoption of Rule 1:2-1(b) and the issuance of the October 27, 2022 Order, are useful guidelines for deciding "good cause" and "appropriate safeguards" under the Rule.

The court also held that the trial court properly exercised its discretion when it denied defendant's motion, in light of the technical and complicated nature of the expert's expected testimony, the prevalent role video evidence will play at the hearing and trial, the difficulty the State would have in cross-examining defendant's expert during remote testimony, the physical proximity of defendant's expert to the courthouse and his ability to travel, defendant's knowledge of the expert's desire to testify remotely when he retained the expert, and the absence of medical evidence establishing that appropriate safeguards would be insufficient to protect the expert were he to testify in person.

Defendant, who was convicted of murder and other offenses at his 2017 jury trial, appeals the trial court's denial of his petition for postconviction relief ("PCR") without an evidentiary hearing.  He alleges his trial counsel's representation was compromised because his co-parent and girlfriend, who was called at trial as a fact witness for the State, paid for the legal fees of his private criminal defense attorney.  Defendant contends the fee arrangement created an untenable conflict of interest.

The court affirms the PCR judge's determination that defendant was not deprived of effective representation of his counsel, who represented him zealously at trial.  In particular, defense counsel vigorously cross examined the witness who had paid his fees about certain incriminating statements she made about defendant to police detectives.

The fee arrangement, of which defendant was surely aware, did not create a per se conflict of interest that disqualified his counsel in the circumstances presented.  Nor has defendant shown he was actually prejudiced or subject to a great likelihood of such prejudice.

Going forward, the court recommends that private criminal defense counsel document the client's informed consent with a written acknowledgment or some other recorded means at the time the third-party payer's fee arrangement is made. 

There may be instances in which the payer's testimony for the State is anticipated to be so hostile to a defendant's interests that the lawyer is, in fact, materially limited, but this is not one of them.

Following a joint trial, the family court found that defendants R.G. and C.R.A.G., husband and wife, abused or neglected two-year-old M.R., who was unrelated to them but under their care, causing him actual harm.  The family court in turn determined defendants' actions or inactions against M.R. resulted in the abuse or neglect of their children by "creating [im]minent danger or a substantial risk of being impaired due to their failure to exercise a minimum degree of care." 

Defendants' back-to-back appeals raising several issues are consolidated in this one opinion.  They contend the family court lacked jurisdiction over them because they were not M.R.'s legal caretakers under N.J.S.A. 9:6-2 and N.J.S.A. 9:6-8.21, and M.R. was not named as a subject child in the complaint.  Assuming the family court had jurisdiction, they contend there was insufficient evidence to support a prima facie case of abuse or neglect of M.R.  Moreover, despite that finding, they contend there was insufficient evidence to support the court's determination that their conduct towards M.R. placed their children at risk of imminent harm. 

C.R.A.G. separately argues the record demonstrates she appropriately cared for M.R.  She also contends the Division of Child Protection & Permanency (DCPP) failed to present a sufficient cause of action for abuse and neglect of her children.  Relatedly, she contends that the family court improperly relied on her treatment of M.R. to support its findings on behalf of her biological children, as it constituted inadmissible other crimes evidence.

The Law Guardian cross-appeals, joining R.G.'s contention that he was not M.R.'s guardian under N.J.S.A. 9:6-8.21(a).  The Law Guardian argues the family court engaged in impermissible burden shifting by concluding defendants actually harmed M.R.  The Law Guardian also argues there was insufficient evidence to support the court's finding that R.G. abused or neglected his children. 

After reviewing the record and applicable law, the court reverses and remands.  As to R.G., the court concludes the family court did not have jurisdiction over him because there was insufficient evidence that he was M.R.'s guardian under Title 9.  As to C.R.A.G., the court concludes the family court had jurisdiction over her because there was sufficient evidence that she was M.R.'s guardian under Title 9, but there was insufficient evidence that she caused M.R. actual harm and/or placed her children at risk of imminent harm.  The court therefore remands to the family court to remove defendants' names from DCPP's child abuse registry maintained under N.J.S.A. 9:6-8.11.

In this appeal, the court is asked to reconsider our decision in State in the Interest of K.B., 304 N.J. Super. 628 (App. Div. 1997), where the court held that juveniles adjudicated delinquent who seek nondisclosure of their name must demonstrate harm specific to their individual circumstances.  Juvenile M.P. contends due to the public disclosure of his juvenile delinquency adjudication and name over the Internet, he suffers far greater harm than the juvenile in K.B. faced some twenty-seven years ago, when online news reporting was nascent.  He contends he "demonstrate[d] a substantial likelihood that specific and extraordinary harm would result from such disclosure," the standard under N.J.S.A. 2A:4A-60(f) to bar disclosure.  Given that K.B. was based upon our interpretation of N.J.S.A. 2A:4A-60(f), a statute which still governs the disclosure of a juvenile delinquency adjudication and has not been amended to reflect the Internet's impact, the court affirms the trial court's order because M.P. failed to show how disclosure of his name would violate the statute.

In these consolidated appeals, the court addressed former foster caregivers' administrative and Family Part appeals involving the Kinship Legal Guardianship placement of a minor child.  Appellants claim the final agency decision affirming the removal of the minor child from their home was arbitrary, capricious and unreasonable and also argue they should have been granted intervention within the Family Part action.

The court concluded that the Division of Child Protection and Permanency's removal of the minor child was supported by the regulatory officer's consideration of the experts' bonding evaluations which properly interpreted the law, court orders, and Division records.  In addition, the court concluded that appellants, as foster caregivers, have no right to intervene under Rule 4:33-1, without other statutory support.  The placement of the minor child was supported by the 2021 statutory amendments to both the Termination of Parental Rights Statute, N.J.S.A. 30:4C-15.1, and the Kinship Legal Guardianship statute, N.J.S.A. 3B:12A-1 to -7.  The trial court did not misapply the updated law.  Regarding permissive intervention under Rule 4:33-2, the trial court did not abuse its discretion. 

This appeal presents a question of first impression regarding when the State may be compelled to provide field and health reports of narcotics detection canines in accordance with the Supreme Court's holding in Florida v. Harris, 568 U.S. 237 (2013).  Defendant was indicted with second-degree unlawful possession of a weapon, fourth-degree possession of hollow nose bullets, third-degree possession of a controlled dangerous substance, and second-degree certain persons not to have a weapon.  The Law Division denied defendant's motion to compel the State to provide discovery of records related to a narcotics detection canine used to conduct a sniff of the vehicle and whose positive alert gave the basis for probable cause to conduct a full search.

Upon granting leave to appeal, the court concludes that under Harris, the canine's field and health records are not per se irrelevant to reliability and probable cause determinations and, therefore, the trial court should have first heard the State's motion challenging the expert before denying the defendant's motion for discovery. 

The court reverses and remands for consideration of the State's motion to bar defendant's expert.

     This appeal from the denial of a petition for post-conviction relief (PCR) presents a novel statutory construction question under the current version of the New Jersey Wiretapping and Electronic Surveillance Control Act (Wiretap Act).  Pursuant to N.J.S.A. 2A:156A-4(c), law enforcement officers may intercept and record a telephonic communication when a party to the conversation allows them to listen in on the phone call.  Recordings made under this provision are known as "consensual interceptions."  While a consensual interception does not require prior judicial approval in the form of a wiretap order, N.J.S.A. 2A:156A-4(c) requires police to obtain the prior approval of the Attorney General or designee, or a county prosecutor or designee.  In this appeal, the court addresses whether prior prosecutorial approval must be in writing.

     The court concludes that nothing in the plain text, legislative history, or case law interpretation of the Wiretap Act requires prior approval of consensual interceptions be made in writing.  The court deems it especially noteworthy that the plain text of N.J.S.A. 2A:156A-4(c) stands in stark contrast to the plain text of the Wiretap Act section governing the internal law enforcement procedure for getting approval to apply to a wiretap judge for an interception order.  N.J.S.A. 2A:156A-8 explicitly provides that the Attorney General, county prosecutor, or a person designated to act for such an official . . . may authorize, in writing, an ex parte application to a judge." (Emphasis added).  The court reasons that provision confirms the Legislature knows how to specify when Attorney General/county prosecutor/designee prior approval must be in writing but chose not to include that requirement with respect to approving a request to conduct a consensual interception.

     The court concludes the Legislature did not intend to impose procedural requirements regarding prosecutorial approval of consensual interceptions other than the two conditions expressly articulated in the statutory text: (1) the approval be made by a person designated by the Attorney General or county prosecutor, and (2) such approval be given prior to initiating the consensually-intercepted telephonic communication.  Because the record shows the prosecutor complied with both requirements, the court affirms the denial of defendant's PCR petition.

The court in this post-conviction relief (PCR) appeal addresses a question of first impression under the Jessica Lunsford Act (JLA), which prescribes a mandatory twenty-five-year sentence for aggravated sexual assault of a child under the age of thirteen.  The mandatory minimum sentence can be reduced by up to ten years, but only by the prosecutor through a plea agreement.  A judge, moreover, may not impose a prison term less than the one agreed to by the prosecutor. 

To ensure statewide uniformity, the JLA required the Attorney General to issue guidelines channeling the exercise of prosecutorial discretion in making plea offers.  Under the Attorney General Guidelines, prosecutors are expressly prohibited from tendering the most lenient plea offer allowed under the JLA once a defendant is indicted.  In this case, the prosecutor's initial plea offer was tendered after indictment.  Defendant contends the Guidelines' graduated plea provision imposes an impermissible "indictment penalty," violating due process, the right to the effective assistance of counsel, and the right under the doctrine of fundamental fairness to a plea offer that is not arbitrary or capricious. 

In State v. A.T.C., the Supreme Court upheld the JLA and Attorney General Guidelines against a facial constitutional challenge, subject to an important condition.  239 N.J. 450, 475 (2019).  The Court held prosecutors must provide a statement of reasons explaining their decision to offer a defendant a reduced term of imprisonment.   That requirement is designed to ensure statewide uniformity and facilitate judicial review to guard against the arbitrary or capricious exercise of prosecutorial discretion.   

The A.T.C. Court had no occasion, however, to address the constitutionality of the Guidelines' graduated plea provision at issue in this appeal since the defendant in A.T.C. waived his right to indictment.  Following the analytical template and remedy devised in A.T.C., the court upholds the constitutionality of the challenged Guidelines' graduated plea feature subject to a condition:  when a prosecutor elects to tender the initial plea offer after indictment, the statement of reasons required by A.T.C. should include an explanation for the timing of the plea offer or else an explanation that the graduated plea provision had no impact on the plea offer.  Applying that rule, the court remands the case for the prosecutor to explain the reason for not tendering a pre-indictment plea offer, and for the PCR judge to review that explanation to determine if the prosecutor's decision constitutes an arbitrary or capricious exercise of prosecutorial discretion resulting in prejudice to defendant.  In all other respects, the court rejects defendant's constitutional arguments.  

In this appeal, as a matter of first impression, the court considered whether the State may move to expand the scope of notification under Megan's Law, N.J.S.A. 2C:7-1 to -23, based on an increased risk of harm to the community not otherwise accounted for in the Registrant Risk Assessment Scale (Scale).

Having reviewed precedent concerning heartland applications, the court was satisfied the State may, in limited circumstances, request notification more expansive than indicated by a registrant's confirmed Scale score.  As with a registrant's heartland application, the State may only request an expansion of notification in the "unusual case where relevant, material, and reliable facts exist for which the Scale does not account, or does not adequately account . . . .  Those facts must be sufficiently unusual to establish that a particular registrant's case falls outside the 'heartland' of cases."  In re Registrant G.B., 147 N.J. 62, 82 (1996).

The court agreed that this case, which resulted in the "ultimate harm" of death to the victim, presented facts not taken into account by the Scale, and that the judge's decision did not constitute an abuse of discretion.

In 2022, the Government Records Council (GRC) adopted N.J.A.C. 5:105-1.6(a)(1).  The regulation provides that all submissions made to the GRC during its adjudication of a denial-of-access complaint under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, "shall not be considered government records subject to public access pursuant to" OPRA "during the pendency of [the] adjudication."  This direct appeal challenges the regulation's validity.

The court holds the regulation is invalid because it violates OPRA's plainly stated requirements, finds no support in OPRA, and is inconsistent with the legislative mandate embodied in OPRA that the citizens of this state are entitled to prompt and full public access to government records.  The court further finds that in its adoption of the regulation, the GRC, which is charged with enforcing OPRA's broad policy of construing its terms "in favor of the public's right of access," N.J.S.A. 47:1A-1, invalidly shields itself from public scrutiny during its performance of one of its core responsibilities—the adjudication of denial-of-access complaints.    

The issue presented, one of first impression, is whether a court-appointed Special Adjudicator's fees to resolve discovery disputes can be charged to an individual or entity who were not parties to the underlying litigation but petitioned the court to quash a subpoena.  Because we conclude Rule 4:41-2 limits the imposition of the Special Adjudicator's fees to the parties in the underlying litigation, we reverse the trial court's order imposing fees on the nonparty appellants, who moved to quash the subpoena, as they are nonparties to the underlying litigation. 

Defendant appealed from a final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, based upon predicate acts of sexual assault, N.J.S.A. 2C:14-2, lewdness, N.J.S.A. 2C:14-4, and harassment, N.J.S.A. 2C:33-4. He contended the trial court failed to make factual or credibility findings, and abused its discretion in entering an FRO after drawing an adverse inference when he chose not to testify. The court concluded the trial court failed to make sufficient findings of fact and conclusions of law, vacated the FRO, reinstated the amended temporary restraining order (TRO), and remanded for a new FRO hearing before a different judge.

Additionally, the court concluded, as a matter of law, it is not appropriate for a trial court to draw an adverse inference solely from defendant's invocation of his Fifth Amendment right to not testify in an FRO hearing. Despite the remedial nature of the PDVA, and the statute's language insulating a defendant's testimony from use in a criminal proceeding relating to the same act, a defendant's election to not testify cannot give rise to an adverse inference in an FRO hearing. 

This appeal requires the court to determine whether an ordinance limiting property ownership in certain senior housing communities to persons aged fifty-five or older is valid.  Both the Fair Housing Act (FHA), 42 U.S.C. § 3604(a), and the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-12(h), prohibit housing discrimination based on familial status, but provide an exemption for qualified housing for older persons, see 42 USC § 3607(b)(1); N.J.S.A. 10:5-5(n).  However, the exemption in both statutes permit restrictions on occupancy, not ownership, to persons aged fifty-five and older.  Relying on the text and the underlying purpose of the statutes, the court determined that because the exemptions do not expressly permit the restriction on ownership, and the ordinance's restriction discriminates on the basis of familial status, the ordinance violates the FHA and the NJLAD.  As a result, the court affirmed the trial judge's decision invalidating the ordinance.

Alternatively, the court invalidated the ordinance on the ground that its enactment exceeded the scope of the Township's authority because the ordinance unreasonably infringed upon the well-established and constitutionally protected right to own and sell property, and the restriction unreasonably and irrationally exceeded the public need.  The court therefore concluded the ordinance was arbitrary and unreasonable, and required the Legislature's approval as a precondition to such a radical regulatory development. 

This appeal arises from a denial by respondent New Jersey Department of Environmental Protection ("DEP") of a request by appellants to rescind what is known as a flood hazard area general permit-by-certification 5 ("GPC 5") granted to a neighboring residential property owner, Kenneth Nicosia.

Appellants own residential property that abuts Nicosia's parcel, both located within a block of the Atlantic Ocean shoreline.  Nicosia, a developer, sought the permit to replace a single-family house on the site with a new house.

After receiving notice of Nicosia's application for a GPC 5, appellants and several other local residents submitted comments to the DEP contesting the application.  The comments objected to the issuance of the GPC 5, and further alleged that Nicosia's ongoing construction of the new house was not adhering to the permit's conditions.  A DEP Section Chief responded to appellants by email, rejecting their objections and declining to modify or rescind the permit.  This appeal ensued.

Appellants principally argue that (1) the written notice they received of Nicosia's permit application was deficient because it failed to state the permit was effective during the comment period; and (2) the applicable DEP regulations should be construed to require a GPC 5 applicant to show that an existing structure is not in "usable condition" due to "decay" or "damage."  See N.J.A.C. 7:13-1.2 (defining the terms "reconstruct" and "repair" under the regulations).

The court concludes the GPC 5 notice did not violate any statutory or regulatory provisions, nor was it constitutionally deficient.  In addition, although the pertinent regulations are poorly worded and punctuated, the DEP has reasonably construed them to not require an applicant who, as here, seeks to replace a lawfully existing structure to demonstrate the structure is decayed, damaged, or otherwise not in usable condition.  But nothing in this opinion precludes the pursuit of available enforcement remedies if the construction, as built, does not comply with the conditions of the GPC 5 or applicable statutes or regulations.

In this long-running dispute between Verizon New Jersey, Inc., inheritor of New Jersey Bell Telephone Company's local exchange service telephone network, and the Borough of Hopewell, the court affirms Judge Menyuk's 2012 decision on summary judgment finding N.J.S.A. 54:4-1's 51% market-share calculation must be performed annually, and that an annual market-share calculation, as applied to Verizon, does not violate the State and federal equal protection guarantees, the State prohibition of special legislation or the Uniformity Clause, as well as Judge Brennan's 2019 decision following trial that Verizon is subject to the tax imposed for tax year 2009 because it provided dial tone and access to 51% of the Hopewell Local Telephone Exchange in 2008.  The published version of this opinion omits discussion of whether the 51% test of N.J.S.A. 54:4-1 is to be applied annually as well as Verizon's constitutional challenges to the statute.

The court reverses the denial of a motion to suppress drug evidence discovered by a detective following a dog sniff after an admitted pretext stop.  Although not questioning the detective's good faith or impugning the trial court's finding that he was a credible witness, the court finds neither is enough to justify this stop.  "The suspicion necessary to justify a stop must not only be reasonable, but also particularized."  State v. Scriven, 226 N.J. 20, 37 (2016).  The detective failed to offer facts sufficient, as a matter of law, to allow the court to determine he possessed a reasonable articulable suspicion that Boone failed to maintain his lane "as nearly as practicable."  N.J.S.A. 39:88(b).  See State v. Woodruff, 403 N.J. Super. 620, 627-28 (Law Div. 2008).  We do not reach defendant's argument that the automobile exception did not apply because the circumstances giving rise to probable cause were not spontaneous and unforeseeable as required under State v. Witt, 223 N.J. 409, 447-48 (2015).  See State v. Smart, 253 N.J. 156, 171 (2023).      

        This appeal presents a question of first impression regarding when the State may be compelled to provide field and health reports of narcotics detection canines in accordance with the Supreme Court's holding in Florida v. Harris, 568 U.S. 237 (2013).  Defendant was indicted with second-degree unlawful possession of a weapon, fourth-degree possession of hollow nose bullets, third-degree possession of a controlled dangerous substance, and second-degree certain persons not to have a weapon.  The Law Division denied defendant's motion to compel the State to provide discovery of records related to a narcotics detection canine used to conduct a sniff of the vehicle and whose positive alert gave the basis for probable cause to conduct a full search.

         Upon granting leave to appeal, the court concludes that under Harris, the canine's field and health records are not per se irrelevant to reliability and probable cause determinations and therefore, the trial court should have first heard the State's motion challenging the expert before denying the defendant's motion for discovery. 

         Because the records may be deemed relevant by the trial court, the court reverses and remands for consideration of the State's motion to bar defendant's expert using the Daubert[1] standard adopted by our Supreme Court for criminal cases in State v. Olenowski, 253 N.J. 133, 151 (2023).

[1]  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

The central issue in these back-to-back appeals, which have been consolidated for the purpose of issuing a single opinion, is whether municipalities have an implied contractual (seller-consumer) relationship with residents to whom they distribute metered potable water.  The answer to that question determines whether plaintiffs may sue defendants under a breach-of-contract theory on the grounds that the water supplied to them contains a high level of contaminants. 

Plaintiffs rely on older cases holding there was a contractual relationship between residents and their towns with respect to water service.  Defendants rely on more recent cases recognizing a different type of relationship between municipal water distributors and residents—one that is not based on principles of contract law.

The court concludes that under the current governance framework for public water systems, potable water is a public resource owned by the people and held in trust for them.  Under that paradigm, defendant municipalities distribute water to their residents for a governmental purpose.  They are not tantamount to private companies that sell water for profit.  The fact they charge residents for the costs incurred for providing this governmental service —which varies based on the amount of water a resident receives—does not automatically create a contractual relationship.    

The court also concludes that for all practical purposes, the theory of liability in plaintiffs' complaints, while carefully drafted to employ the terminology of contract law, is indistinguishable from a warranty of fitness cause of action explicitly precluded under a provision of the Tort Claims Act, N.J.S.A. 59:9-2(b).  Stated another way, using the label of a contract dispute to describe the cause of action does not change its essential character or transform the relationship between municipal water distributors and residents into a contractual one.  The court thus concludes there is no foundation upon which contractual damages may be claimed against defendant municipalities.

The court affirmed the trial court's dismissal of plaintiff's personal injury action under the Landowners Liability Act (LLA), N.J.S.A. 2A:42A-2 to -10.  Plaintiff fell while rollerblading in a park owned and maintained by the County of Bergen.  The County of Bergen argued entitlement to immunity under the LLA. 

The court, focusing on "the dominant character of the land" where plaintiff fell rather than the land uses surrounding the park, agreed with the trial court's conclusion that the park constituted a "premises" under the LLA.  Therefore, the County of Bergen was entitled to immunity absent "willful or malicious failure to guard, or to warn against a dangerous condition."

Given the dwindling available open space in this State, the LLA reflects an important public policy of encouraging large land areas, consisting of natural outdoor expanses, where the general public may participate in sport and recreational activities free of charge.  Premises under the LLA may consist of large tracts of rural or semi-rural lands or "lands having similar characteristics," such as the park owned by the County of Bergen.     

Defendant insurance company appeals from an order granting partial summary judgment to plaintiff policy holder finding a duty to defend and indemnify.  The trial court found that defendant had unreasonably withheld consent to settle in the underlying actions and was precluded by the Supreme Court's holding in Fireman's Fund Insurance Co. v. Security Ins. Co. of Hartford, 72 N.J 63 (1976), from declining coverage pursuant to the policy's capacity exclusion.

The court first concluded that on the undisputed facts in the record, defendant's conduct was not unreasonable, and that the facts were distinguishable from Fireman's Fund.  After engaging in de novo review of the record, including the policy, the court concluded the capacity exclusion applied to bar coverage.  

The court reverses defendant's driving while intoxicated (DWI) conviction because it was based on evidence obtained by a police officer following his unlawful entry into defendant's garage.  The court remands for the Law Division judge to determine whether defendant's careless driving conviction can be sustained based on information learned before the officer unlawfully crossed the threshold of defendant's home.

The court addresses the circumstances in which a police officer may enter a suspect's residence in connection with a drunk or careless driving investigation.  The court holds that while police have the authority to perform various "community caretaking" functions—such as determining whether a suspected drunk driver needs medical attention—they may not make a warrantless entry into a suspect's home to execute an investigative detention without consent or exigent circumstances.    The court holds this rule applies to defendant's garage. 

The court also holds this was not a fleeting or de minimus entry.  The officer entered the garage to execute an investigative detention, that is, to seize defendant.  The court stresses that even the brief entry of the home to effectuate the seizure of a resident is a significant constitutional intrusion.  The court ultimately concludes the State failed to prove by a preponderance of the evidence the officer lawfully entered the garage to render emergency aid under the exigent circumstances exception. 

In this appeal, the court held individuals convicted of a disorderly persons or petty disorderly persons offense are not categorically excluded from Recovery Court under Track Two based on the classification of their conviction.  The court first found the matter justiciable despite the defendant's death and then rejected the rationale that Recovery Court is available only to those convicted of a "crime," which disorderly persons and petty disorderly persons offenses are not under our Criminal Code.

This Tort Claims Act case arises from a now-deceased plaintiff's bicycle accident on a two-lane public road that straddled two municipalities.  The accident occurred on a stretch of the road that was chronically pitted with potholes, apparently due to drainage and freezing problems.  According to the deposition testimony of a local public safety director, potholes at that location had to be patched and re-patched "hundreds" of times in the five years before the accident.  Several citizens periodically reported the road's poor condition before the accident.  The road had no full-sized shoulders or designated bike lanes.

Plaintiff swerved his bicycle to avoid a passing truck, and lost control and fell when his tires hit the potholes.  Plaintiff's engineering expert opines that incorrect methods had been used to patch the road.  The expert further has opined that the persisting uneven surfaces were dangerous, not only for bicycles but also for motorcycles.

This opinion clarifies and extends the principles of Polzo v. County of Essex, 196 N.J. 569 (2008) ("Polzo I") and Polzo v. County of Essex, 209 N.J. 51 (2012) ("Polzo II"), concerning roadway surface conditions that endanger the safety of bicyclists on public roads.  In a fact pattern involving a bicycle accident on a road's potholed shoulder, the Court held in Polzo II that the public entity defendant had no duty to maintain the shoulder to an extent safe for bicyclists.  Id. at 70-75.  The Court distinguished that no-duty-to-bicyclists situation from a roadway condition that also happens to be unsafe for motorized vehicles.  Ibid.

This court applies the rationale of Polzo II here to this bicycle accident that occurred in a vehicular lane, and to a record with an unrebutted expert opinion that the road surface was unsafe for both motorcycles and bicycles.  The court concludes a public entity that is palpably unreasonable in failing to correct such a known dangerous road condition may be liable to a bicyclist who is injured because of that danger.  In doing so, the court recognizes that a plaintiff operating a two-wheeled vehicle must use due care when confronting a visibly hazardous potholed surface.  These principles are consistent with New Jersey Department of Transportation regulations concerning the safety of roadway surfaces.

Viewing this record in a light most favorable to plaintiff, the court vacates summary judgment in favor of the two municipal defendants that maintained and patched the road.  In the unpublished portion of this opinion, the court addresses other discrete matters.

Plaintiff hospitals brought action challenging the charity care program that requires them to provide care to all patients regardless of their ability to pay, while also prohibiting them from billing patients who qualify for charity care under the statute.  The trial court dismissed certain hospitals' claims for failure to exhaust administrative remedies.  As to the remaining claims, the trial court found that the regulations do not affect a constitutional taking under either a per se or Penn Central analysis. 

On de novo review, the court first addressed the ripeness issue.  It held that plaintiffs raised facial challenges to charity care and therefore had properly raised their claims in the first instance with the trial court.  Therefore, the court considered all plaintiff hospitals' constitutional takings claims.  Next, the court held that plaintiffs failed to show either a per se or regulatory taking violative of the Fifth and Fourteenth Amendments of the United States Constitution as well as Article I, Paragraph 20 of the New Jersey Constitution.  As a result, the court affirmed the trial court's order granting summary judgment on the merits, but did so on different grounds, entering summary judgment against all plaintiffs, including those previously dismissed for failure to exhaust administrative remedies.    

Plaintiff's decedent succumbed to the COVID-19 virus in May 2020.  The Estate claims the decedent's death was a result of defendants' "negligent, grossly negligent, careless and reckless actions and omissions" in discharging his wife, from whom he allegedly contracted the disease, from defendant long-term care facility in April 2020, while the result of her PCR test was pending.  Defendants notified the decedent's wife, their patient, and the decedent of the patient's positive test upon defendants' receipt of the result two days after her discharge.  The decedent tested positive for the virus shortly thereafter.  Defendants' patient survived her bout with the virus; the decedent tragically did not.

The court reverses the denial of defendant health providers' motions to dismiss plaintiff's medical negligence, wrongful death and survival claim, finding, contrary to plaintiff's assertion, that there is no well-established common law rule in New Jersey that a "physician has the duty to warn third persons against possible exposure to contagious or infectious diseases," and that plaintiff has not otherwise pled any recognizable derivative duty defendants owed to the decedent.

Although orders granting Rule 4:6-2 motions are ordinarily entered without prejudice, the Legislature's decision in the New Jersey COVID-19 Immunity Statute, L. 2020, c. 18, to temporarily limit the scope of whatever duty we might recognize defendants owed their patient and, derivatively, the decedent, to one of simply avoiding gross negligence during the height of the COVID-19 pandemic leaves plaintiff unable to state a claim on the facts alleged.  It is not possible for a reasonable jury to find defendants were not simply negligent, but grossly negligent or reckless in discharging the decedent's wife to his care in April 2020, before knowing the result of her pending PCR test.

This appeal concerned the threshold requirements for an applicant's waiver of court fees based on indigency. Rule 1:13-2(a), governing proceedings by indigents, was supplemented by the New Jersey Supreme Court's April 5, 2017 order, which established a standard fee waiver application process and criteria.  The Court's order authorized the Administrative Office of the Courts to promulgate directives providing "uniform fee waiver request forms" and a standard protocol.  See generally Admin. Off. of the Cts., Admin. Directive #03-17, Fee Waivers Based on Indigence (rev. Apr. 20, 2017). 

Plaintiff Tyree Deshawn Mims appealed from a July 19, 2023 Law Division order, which denied without prejudice his motion to proceed as indigent.  The trial court found that plaintiff failed to provide the required documentation.  On appeal, plaintiff contended his submitted documentation satisfied the eligibility requirements of Rule 1:13-2(a), warranting a waiver of court fees in this action and in all future litigation.  The court concluded the trial court properly denied plaintiff's motion because he failed to complete the uniform fee waiver forms and to submit the required supporting documentation establishing indigency.

This interlocutory appeal concerns the interpretation of the Wage Payment Law, N.J.S.A. 34:11-4.1 to -4.14, and its application to a defendant employer's commission structure.  The motion judge ruled the plaintiff employee's commissions in dispute stemming from the sale of Personal Protection Equipment ("PPE") during the onset of the COVID-19 pandemic were not "wages" covered by the statute and instead fell within the statute's exception for "supplementary incentives."  Plaintiff had sought payment of more than $1.3 million in commissions claimed on over $32 million in PPE sales that she helped generate in the three-month period from March 2020 through June 2020.

The Supreme Court granted the employee's motion for leave to appeal, remanding the case to this court "for consideration on the merits, limited to whether the commission structure at issue falls within the Wage Payment Law."

Under the circumstances presented, the compensation the employee sought for the PPE sales are "supplementary incentives" excluded by N.J.S.A. 34:11-4.1(c), and not regular commissions within the ordinary scope of her sales compensation plan.  The employer's commitment to pay commissions on PPE sales was outside of plaintiff's customary role in selling the company's services and were designed to stimulate the sales of PPE during a time of sudden pandemic-related demand.

The court therefore affirms the motion judge's ruling, but, as the judge recognized, subject to plaintiff's non-statutory contractual claims.

This case of first impression resolves the proper means to attempt to rescind a certificate of dissolution and termination of a New Jersey limited liability company (LLC), which allegedly has been filed in error or without authorization.  The statutory scheme for LLCs, N.J.S.A. 42:2C-1 to -94, contains no provision authorizing the New Jersey Department of the Treasury to perform such a rescission.

The Department accordingly declined plaintiffs' request to rescind a certificate of dissolution and termination that plaintiffs allege had been improperly filed by a former LLC member, advising that such relief can only be obtained through a court proceeding.  Plaintiffs then filed a civil action in the Law Division, which transferred the dispute to this court.

The court concludes the LLC statutes do not empower the Department to rescind such certificates administratively, in the absence of a court order directing such relief.  However, the court holds that our trial courts possess the jurisdiction and authority to grant such relief, with a proper showing of justification by the applicant and upon appropriate notice to interested or affected parties.

The court reverses an interlocutory Law Division order suppressing handguns and a large-capacity ammunition magazine police found in a locked glove box during a traffic stop.   The case presents two questions of first impression under New Jersey law.  Are police permitted to search a glove box under the automobile exception based solely on the odor of marijuana emanating generally from the passenger compartment without first determining whether the odor is coming specifically from the vicinity of the glove box?  And does the New Jersey automobile exception extend to a glove box that is intentionally locked, manifesting a heightened expectation of privacy in its contents?  

Applying principles explained in State v. Cohen, 254 N.J. 308, 328 (2023), the court holds that the smell of marijuana emanating from the passenger compartment provided probable cause to search the entire interior for marijuana, which includes the glove box, since that was a place within the passenger compartment where marijuana could be concealed.  The court declines to create a new rule that would essentially require police to follow a scent trail or pre-inspect containers in the passenger compartment before opening them. 

The court likewise rejects defendants' contention that by locking the glove box, defendants manifested a heightened expectation of privacy comparable to that which applies to a home, taking the glove box outside the realm of the automobile exception.  The court also holds it does not matter under the automobile exception whether the contents of the locked glove box were accessible to the vehicle occupants.  In this respect, the automobile exception is different from the search-incident-to-arrest exception, which limits the scope of a warrantless search to areas "within [the arrestees'] immediate control," see Chimel v. California, 395 U.S. 752, 763 (1969). 

Finally, the court rules that by using a key to open the locked glove box, rather than breaking it open, the "intensity" with which the warrantless search was executed was eminently reasonable and lawful.       

          Defendant Jeffrey Walker entered into a plea agreement with the State after misappropriating health care insurance premiums from his company's employees instead of paying them to the insurance carrier.  In return for defendant's plea to third-degree theft by illegal retention, N.J.S.A. 2C:20-9; and third-degree misappropriation of entrusted property, N.J.S.A. 2C:21-15 and agreement to pay restitution to his victims of $72,471.35, the State agreed to recommend five years of non-custodial probation.  Defendant was then sentenced in accordance with the plea agreement.

         Defendant's probation ended and the then-outstanding balance of his restitution was transferred to collections.  At the time of the appeal, defendant had paid only $27,746 of the money he misappropriated, still owing $45,595.35.  Defendant learned his restitution had been prorated among all the victims, and the prorated restitution owed to the victims not yet located had escheated to the State in case they were later located.

         Defendant filed a post-conviction relief ("PCR") petition to return the escheated funds and pay the victims who had been located.  Defendant then argued it would be in the interest of justice that his restitution obligation be deemed completed once the located victims were fully paid.

         The court rejected defendant's proposal to essentially renegotiate individual restitution settlements as it emphasized the restitution amount and framework was part of a plea agreement negotiated with the State and approved by the trial court.  To extinguish defendant's obligation to pay the full restitution would unjustly reward defendant for his failure to timely pay the full restitution amount within the negotiated five years.  Defendant's proposal would allow him to keep some of the fruits of his offense and deprive his victims of compensation for the losses suffered.  It would also run counter to the remunerative, rehabilitative, deterrence, and punitive goals of restitution.  As a result, the court affirmed the trial court's denial of PCR.

In State v. Comer, the New Jersey Supreme Court held juvenile offenders, prosecuted as adults and convicted of murder, are constitutionally entitled to reconsideration of their sentences after twenty years' imprisonment.  249 N.J. 359, 369-70 (2022).  In these consolidated appeals, all three defendants were eighteen years of age or older when they were prosecuted and convicted of murder, and were sentenced to prison terms ranging from thirty years with a thirty-year parole disqualifier to life with a forty-year parole bar.  Having exhausted their appeals and collateral review, defendants filed pro se applications with the motion courts for the reduction or change of sentence under Rule 3:21-10.  The motion courts denied their applications on the papers, without appointing counsel. 

On appeal, defendants contend, as did other similarly situated youthful offenders before them, the Court's decision in Comer should extend to youthful offenders between the ages of eighteen and twenty when they committed their offenses.  Defendants therefore argue their lengthy sentences should receive the same constitutional protection as juvenile offenders prosecuted and convicted as adults.  Defendants further contend the motion courts should have assigned counsel rather than denying their pro se applications without a hearing. 

The court declined defendants' invitation to extend Comer's holding, concluding the Supreme Court's decision was limited to juvenile offenders tried and convicted of murder in adult court, and the Court neither explicitly nor implicitly extended this right of sentence review to offenders between the ages of eighteen and twenty.  Citing its limited institutional role as an intermediate appellate court, the court expressed its obligation to follow precedential opinions of the United States Supreme Court and the New Jersey Supreme Court.  Noting defendants' arguments lacked merit under Comer and were not particularly complex, the court further concluded the motion courts properly decided their applications without assignment of counsel.  Accordingly, the court affirmed all three orders under review.

     This matter involves a defendant sex offender's motion to modify his judgment of conviction (JOC) and Sex Offender Restraining Order (SORO) issued pursuant to Nicole's Law, N.J.S.A. 2C:14-2 and 2C:44-8.  The SORO prohibited defendant from having any contact with the two victims—his step-daughters—his ex-wife, and their two minor biological children.  Defendant moved to modify the JOC and SORO to allow him to have contact and parenting time with his two minor biological children through a third party.

     Applying the framework established in Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995), this court concludes that based on similarities between a SORO and a final restraining order issued under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, the factors set forth in Carfagno are applicable to use in considering an application to modify or vacate a SORO, determining the continued necessity of a SORO.

     In this interlocutory appeal, defendants Blue Ocean Waters, LLC and its members Piyush Viradia and Jiten Parikh seek to vacate two orders of the Chancery court.  First, its January 18, 2023 order granting partial summary judgment to plaintiff AC Ocean Walk, LLC to judicially dissociate Blue Ocean Waters and dissolve the parties' partnership agreement under the Uniform Partnership Act (UPA), N.J.S.A. 42:1A-1 to -56.  Second, its March 13, 2023 order denying defendants' motion for reconsideration and amending the partial summary judgment order to reflect that the partnership had dissolved on October 10, 2020.

     We affirm the January 18, 2023 order granting judicial dissociation and dissolution of the parties' partnership agreement.  Defendants' failure to respond to AC Ocean Walk's September 30, 2020 notice of breach of the agreement is a clear indication that judicial dissociation was appropriate under N.J.S.A. 42:1A-31(e) as "it [was] not reasonably practicable to carry on the business in partnership with the partner."  Although no case law in our State has interpreted the "not reasonably practicable" standard for judicial dissociation of a partner, our conclusion is supported by the interpretation of like statutes in other jurisdictions.

     We, however, reverse the March 13, 2023 order by amending the effective date of the dissociation and dissolution to coincide with the date of January 18, 2023 order.  Based on the record before us and the plain language of N.J.S.A. 42:1a-39(e)(3), judicial dissolution occurs when there "is a judicial determination that . . . it is not otherwise reasonably practicable to carry on the partnership business in conformity with the partnership agreement."  Again, in the absence of our State's case law defining the effective date of dissociation and dissolution under N.J.S.A. 42:1A-39(e)(3), our conclusion is supported by the interpretation of like statutes in other jurisdictions.

This dispute involves whether a party to a contract waived its right to compel arbitration by its conduct in a lawsuit it initiated.

Plaintiffs appeal from the trial court's denial of their motion to compel arbitration of claims against defendants for nonpayment of residential construction services they rendered.  The parties' contract, which was drafted by plaintiffs, contained a provision calling for disputes to be resolved through binding arbitration.

The motion judge ruled that plaintiffs waived their contractual right to arbitrate.  Among other things indicative of such a waiver, the record shows that: (1) plaintiffs filed claims in the Law Division beyond those necessary to assert a lien under the Construction Lien Law (CLL), N.J.S.A. 2A:44A-1 to -38; (2) asserted in their Rule 4:5-1(b)(2) certification accompanying their complaint that no arbitration was contemplated; and (3) waited to move to compel arbitration after receiving the benefit of significant discovery, while failing to comply reciprocally with defendants' discovery demands.

Applying the multifactor test prescribed in Cole v. Jersey City Medical Center, 215 N.J. 265, 280-81 (2013), this court concludes that plaintiffs waived their right to compel arbitration.  In the course of doing so, however, the court rejects defendants' contention that the United States Supreme Court's opinion in Morgan v. Sundance, Inc., 596 U.S. 411, 417-19 (2022), eradicates the Cole factor that considers whether the party opposing arbitration was prejudiced by the movant's delay.  Prejudice remains one of the pertinent, but not individually dispositive, Cole factors after Morgan.  However, that particular factor is not controlling in this case, given the totality of the circumstances that otherwise, on balance, further establish waiver.

P.S.: Please note that the court is simultaneously issuing with Marmo two unpublished opinions applying the Cole waiver factors and citing Marmo. 

     In this case of first impression, the court considers the limitations on property owners' liability under N.J.S.A. 39:3C-18, when certain classes of motor vehicles are operated on their premises.  Plaintiff in this matter claimed he sustained severe personal injuries when he struck a steel cable while riding his dirt bike on the quarry grounds owned by defendant property owners.  The cable was part of the machinery used in dredging the quarry.  The incident occurred on a Sunday afternoon, while the business was closed. 

     The motion judge dismissed plaintiff's complaint on summary judgment, concluding defendants were immune from liability under N.J.S.A. 39:3C-18 because plaintiff lacked express consent to operate his dirt bike on their property.  The judge summarily denied as moot plaintiff's motion for leave to file an amended complaint to assert allegations of willful and wanton misconduct. 

     Comparing N.J.S.A. 39:3C-18 to a similar statute under the Landowner's Liability Act, N.J.S.A. 2A:42A-1 to -10, the court concludes defendants did not act willfully to create a hazardous condition on their property by failing to lower the steel cable, within the meaning of N.J.S.A. 39:3C-18.  Because the court holds summary judgment was warranted under N.J.S.A. 39:3C-18, the court concludes the motion judge properly denied plaintiff's motion for leave to amend his complaint.