Published Appellate Court Opinions

     The primary issue addressed by the court in this appeal is whether the indictment of a partner in a law firm, who withdrew his appearance following the indictment, creates a conflict of interest requiring the law firm to be disqualified from representing defendants, the State of New Jersey and other State entities.  Because the underlying indictment was not related to the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -14, and contract claims filed by plaintiff in the civil action, the court concluded no conflict of interest existed pursuant to the Rules of Professional Conduct or the Office of the Attorney General, Outside Counsel Guidelines (2022).  The court affirmed the trial court's order denying plaintiff's motion for disqualification.

     The court held a Track One Recovery Court candidate is legally eligible for entry into Recovery Court under the second section of N.J.S.A. 2C:35-14(a)(5), where a firearms charge has been resolved and is no longer pending at the time the applicant seeks admission into Recovery Court.

     The State appealed the trial court order granting defendant Thomas Canales' motion to dismiss the seven-count indictment for sexual assault, endangering the welfare of a child, and criminal sexual contact relating to three girls under the age of thirteen and one adult female, in separate incidences occurring over a four-month period.  Two successive jury trials were held on all charges, with the first declared a mistrial based on jury deadlock.  The second trial led to a conviction, which the court vacated and remanded for retrial based on an evidentiary error.  On remand, the trial court dismissed the indictment under the fundamental fairness doctrine applying the factors articulated in State v. Abbati, 99 N.J. 418 (1985).
     On appeal, the court concluded the trial judge mistakenly exercised discretion in dismissing the indictment.  The trial judge overlooked the court's prior conclusion that the State proffered substantial evidence during the second trial while evaluating the strength of the State's case, and erroneously weighed putative testimony subject to a jury's credibility determination on retrial.  The court concluded that, on this record, consideration of the Abbati factors and prevailing law warranted reversal and remand for a new trial.

 

     Former redeveloper Blackridge Realty, Inc. ("Blackridge") challenged the legality of an amendment ("Plan Amendment") to the City of Long Branch's ("City") Redevelopment Plan and a two-million-dollar payment made by redeveloper 290 Ocean, LLC to the City as part of its redevelopment agreement.
     290 Ocean proposed a redevelopment project to the City that would require an amendment to the Redevelopment Plan.  The resulting Plan Amendment relaxed several previous restrictions contained within the original Redevelopment Plan that had applied to Blackridge's redevelopment project.  The City's planner, City council, and mayor all approved the Plan Amendment, finding it consistent with the City's Master Plan and in the City's best interest.  The City and 290 Ocean negotiated a redeveloper agreement, which included a provision requiring 290 Ocean to pay a two-million-dollar fee to the City to be used to partially off-set the cost to construct a senior center.  
     Soon after the Plan Amendment was adopted and 290 Ocean's redeveloper agreement with the City was finalized, Blackridge filed a Complaint in Lieu of Prerogative Writs challenging the Plan Amendment's legality and the payment.  The trial court granted summary judgment to the City and 290 Ocean.  
     The court concludes 290 Ocean's two-million-dollar payment was a lawful, negotiated fee intended to defray the City's costs as authorized in N.J.S.A. 40A:12A-8(f) of the Local Redevelopment and Housing Law ("LRHL").  It determines the LRHL does not impose any restrictions limiting payments to the recovery of costs the municipality will incur as a direct result of the redevelopment project, as long as the fee is negotiated at arm's length and collected to effectuate the purposes of the LRHL and the City's Master Plan.  Unlike the Municipal Land Use Law ("MLUL"), N.J.S.A. 40:55D-42, the LRHL contains no explicit nexus requirement regarding the amount of payment a municipality may charge a redeveloper to defray its costs associated with redevelopment.  The LRHL instead empowers a municipality to "negotiate and collect revenue from a redeveloper to defray the costs of the redevelopment entity" in order "to carry out and effectuate the purposes of [the LRHL] and the terms of the [municipality's] redevelopment plan."  N.J.S.A. 40A:12A-8(f).  The statute's plain terms permit a municipality to "negotiate" any payment amount from a redeveloper without requiring a causal connection between the payment and the redeveloper's proposed project, as long as the municipality demonstrates the payment will defray costs to the municipality associated generally with redevelopment.  The language authorizing a municipality to "negotiate and collect revenue from a redeveloper to defray the costs of the redevelopment entity" is plain, unambiguous, and markedly different from the language set forth in the MLUL payment provision.  Compare N.J.S.A. 40A:12A-8(f) with N.J.S.A. 40:55D-42.  
     The Court cautions, regardless of which statute applies, the need for transparency with respect to any municipality's negotiated payment from a redeveloper remains.  Transparency avoids the appearance that "'[a]pprovals would be granted or withheld depending upon the board members' arbitrary sense of how much an applicant should pay.'"  See Pond Run Watershed Ass'n v. Twp. of Hamilton Zoning Bd. of Adjustment, 397 N.J. Super. 335, 359 (App. Div. 2008) (quoting Nunziato v. Plan. Bd. of Edgewater, 225 N.J. Super. 124, 134 (App. Div. 1988)).  It notes transparency is critically important when a municipality provides a benefit to a redeveloper, so the public is assured the negotiations proceeded at arms-length.  Transparency is fundamental to maintain public trust, to ensure accountability, and to prevent the appearance of favoritism or impropriety in government decision-making.  See Jersey Pub. Co. v. N.J. Expressway Auth., 124 N.J. 478, 492 (1991) (emphasizing the necessity of transparency to uphold public trust and confidence in governmental processes).  The court concludes the City had been transparent in its negotiation of payment with 290 Ocean and its intended use of the funds.
     The court also concludes the Plan Amendment was a lawfully-enacted alteration to the Redevelopment Plan that did not amount to impermissible spot zoning, and Blackridge did not have designated developer status that would allow it to veto the Plan Amendment. Therefore, it affirms the decision of the trial court.
 

     In this appeal, we address the legal standards to be applied by a reviewing court concerning applications for termination or modification of permanent alimony under N.J.S.A. 2A:34-23(j)(3) based on the retirement of an obligor when the judgment or order establishing the alimony obligation was entered prior to the 2014 amendment of N.J.S.A. 2A:34-23.  
     Based on the language in subsection (j)(3), after an obligor has shown they have reached a "good faith retirement age," a prima facie showing of changed circumstances may be established by an obligor satisfying the standards set out in the Court's seminal holding of Lepis v. Lepis, 83 N.J. 139 (1980).  A typical method of showing a prima facie changed circumstance is through proof of a decrease in an obligor's financial circumstances due to their retirement affecting their continuing ability to pay alimony at the level set forth in the current judgment or order.  Here, we hold under subsection (j)(3), that a prima facie change of circumstance can also be shown by an obligee's financial disclosure or other evidence in the record exhibiting:  (1) an obligee has adequately saved for retirement and no longer has a continuing need for alimony as set forth in the order or judgment to maintain the standard of living enjoyed during the marriage; or (2) an obligee had the ability to adequately save for retirement after the final judgment of divorce and, if they had done so, would no longer have a continuing need for alimony as set forth in the order or judgment to maintain the standard of living enjoyed during the marriage.  
     Discovery and a hearing are necessary if genuine issues of material fact exist related to an obligee's ability to have adequately saved for retirement affecting their continuing need for alimony.  At a hearing, under subsection (j)(3) the obligor has the burden to prove by a preponderance of evidence that a modification or termination of alimony is warranted based on the factors set forth in N.J.S.A. 2A:34-23(j)(3)(a to -h).
 

Plaintiffs, successful litigants in Open Public Records Act litigation against defendant school district, obtained an order of judgment awarding attorney's fees on August 28, 2020.  After the court affirmed the August 28, 2020 order of judgment, the parties failed to negotiate payment of the attorney's fees. Plaintiffs then sought a judgment for the attorney's fees in the Civil Judgment and Order Docket, which was entered on July 20, 2022.  When plaintiffs sought to enforce the July 20, 2022 judgment against defendants, including payment for post-judgment interest, the trial court ordered post-judgment interest be calculated from July 20, 2022 to August 29, 2022, the date of its order.  Plaintiffs appealed. 

On appeal, the court held that post-judgment interest accrues from the date of a trial court's entry of an order of judgment awarding attorney's fees pursuant to Rule 4:47, rather than the date the judgment was docketed.  Although the accrual date may be modified by the trial court in the interests of equity, there was no factual predicate proffered by defendants to support modification of the post-judgment interest accrual date in the record.  Accordingly, the court reversed the August 29, 2022 order as to the accrual date of post-judgment interest and remanded to the trial court for entry of an order awarding post-judgment interest accruing from August 28, 2020. 
 

In this medical malpractice case, plaintiff S.V. alleges that defendants prematurely discharged her sister ("J.V.") from their care after J.V. was treated for seventeen days on a voluntary admission basis for psychiatric care at defendants' facility.  The day after her psychiatric discharge, J.V. crashed her car into a utility pole, injuring plaintiff who was a passenger in the vehicle.

Plaintiff's medical expert contends defendants breached their professional standards of care by releasing J.V. prematurely while her medications were still being adjusted and her condition allegedly was not yet sufficiently stabilized.  This "premature release" theory is at the core of plaintiff's claim of negligence.  Notably, plaintiff did not argue below that defendants owed her a duty to warn her that J.V. was too unstable to drive a car, or of any other dangers relating to J.V.'s post-discharge condition. 

The Law Division judge denied defendants' motions for summary judgment.  Among other things, the judge rejected defendants' argument that they owed no legal duty to plaintiff in the circumstances presented.  This court granted leave to appeal, limited to the discrete issue of whether defendants owed a duty to plaintiff with respect to her claims.

The court reverses the summary judgment ruling, applying the four-factor criteria for a legal duty under Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993).  Under the circumstances presented, defendants could not have reasonably foreseen that J.V., shortly after her discharge, would cause a motor vehicle crash that would injure plaintiff.  In addition, plaintiff's theory of liability—alleging that J.V., a voluntary mental health patient, should not have been discharged—clashes with the terms of our civil commitment laws.

The court holds that N.J.S.A. 19:13-8, which bars candidates for public office from being nominated by a political party, by way of direct petition, when they have already accepted the primary or general election nomination of another political party for the same office, does not violate the New Jersey Constitution.  The court, therefore, affirms the decisions by the New Jersey Secretary of State to reject the Moderate Party's request to list Tom Malinowski as its nominee on the November 2022 general election ballot for the United States House of Representatives, 7th Congressional District because Malinowski had already sought and accepted the Democratic Party's primary nomination for that office.

In this legal malpractice action, plaintiff sued the attorneys who represented him in connection with a failed residential construction project alleging damages in excess of $4,000,000.  He contends his prior counsel negligently negotiated the construction contract and incorrectly advised him he could cancel the contract, resulting in a substantial arbitration award in favor of the architect who designed the project, and unpaid counsel fees owed to subsequent counsel.  
 

After filing this action, plaintiff entered a security agreement with the architect in which he assigned to the architect a portion of his anticipated recovery in this action, after first paying his litigation costs and attorneys' fees, to satisfy the arbitration award.  Plaintiff also executed an acknowledgement of attorney charging lien in which he acknowledged a lien on his recovery in this action in favor of subsequent counsel in exchange for their agreement to forebear from collection efforts until resolution of this action.
 

During jury selection, defendants moved to dismiss arguing plaintiff lacked standing because he impermissibly assigned his tort claim to third parties prior to judgment.  The trial court agreed, finding plaintiff "is merely seeking a judgment that is to be paid directly to third parties" and would "receive the benefit of the judgment in name only."  The trial court recognized "[t]he language of the agreements at issue does not indicate an assignment of any claims" but found the assignment of future proceeds violates the rule against assignment of tort claims pre-judgment.
 

The court reversed, concluding plaintiff has standing and did not assign his legal malpractice claim to third parties.  Plaintiff has standing because he retains the right to recover a significant portion of any damages award.  He will recover his legal costs and attorneys' fees before any amounts are paid to his architect and prior counsel and will retain any excess award.  The court also concluded the assignment of the potential recovery in a tort action does not violate the rule against pre-judgment assignment of tort claims if the injured person prosecutes the action in their own name and has standing to do so.  
 

    Following denial of his motion to suppress evidence seized pursuant to a search warrant, defendant Jorge L. Gomez entered a guilty plea to second-degree possession of a firearm during the commission of a controlled dangerous substance ("CDS") offense, N.J.S.A. 2C:39-4.1(a).  He was sentenced to five years in prison with a minimum forty-two months of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c).  
    Defendant contended that the search warrant application did not allege criminal conduct, and in the absence of allegations of the specific quantity of CDS, law enforcement needed to allege that defendant had been warned for a first offense of distributing marijuana before the search warrant could be issued.
    The court reviewed the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act ("CREAMMA"), codified in relevant part at N.J.S.A. 24:6I-31 to -56; and N.J.S.A. 2C:35-5 to -10, and concluded the legislature did not intend to alter how police conduct investigations of those illegally distributing marijuana or alter the probable cause requirement for obtaining search warrants.  As a result, the court affirmed denial of defendant's suppression motion and affirmed his conviction.
 

Defendants moved to compel arbitration after approximately sixteen months of litigation in the trial court.  The trial court granted defendants' motion, finding they had not waived their asserted contractual right to arbitrate.  On appeal, plaintiff argued the trial court erred in compelling arbitration because defendants had waived their right to arbitrate through their litigation conduct.  In response, defendants contended the court lacked jurisdiction to decide the appeal because the trial court's order was "interlocutory" and the arbitration agreement at issue was governed by the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 to 16.

The court reversed the order.  The court held it had jurisdiction to decide the appeal because the FAA does not preempt Rule 2:2-3(a), a neutral procedural rule that identifies the types of orders that are appealable as of right.  Conducting a de novo review of the waiver factors established by the New Jersey Supreme Court in Cole v. Jersey City Medical Center, 215 N.J. 265, 280-81 (2013), the court found defendants had waived their right to arbitration by their litigation conduct, including their failure to indicate their intention to seek arbitration in their Rule 4:5-1(b)(2) certification or to fulfill their continuing obligation to amend the certification.
 

In this interlocutory appeal the court considers the first element of third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2(a), as applied to the conduct of third parties who allegedly aid or abet another person after that person injures the victim.  The State alleges defendants aided their son after he shot the victim and left him for dead.  More particularly, the State claims defendants failed to call 9-1-1 emergency services after defendants arrived at the scene of the injury, observed the injured victim, and learned he was shot.  Crucially, the State does not allege defendants aided or assisted their son in causing the injuries.
 

On appeal, the court affirms the Law Division order reconsidering and reversing an earlier order that denied defendants' motion to dismiss the endangering count.  Discerning no procedural irregularity in the court's reconsideration of the interlocutory order under review, the court considers de novo the plain language of N.J.S.A. 2C:12-1.2, as it applies to those who aid or assist another person who caused bodily injury to the victim.  
 

The court concludes, as did the trial judge, defendants cannot be held liable for aiding or abetting their son within the meaning of the endangering statute because defendants did not knowingly aid their son in causing bodily injury to the victim.  Accordingly, the court holds a third party cannot be held liable under N.J.S.A. 2C:12-1.2(a), unless the third party "knowingly solicited, aided, encouraged, purposely attempted or knowingly agreed to aid another person in causing bodily injury to the victim" as reflected in the pertinent model jury charge.  See Model Jury Charges (Criminal), "Endangering Injured Victim (N.J.S.A. 2C:12-1.2)" (rev. Mar. 14, 2016).  
 

    This matter presents a novel issue of whether an alternative dispute resolution (ADR) provision is enforceable if the party drafting the contract reserves the right to file certain claims in court while the other party does not have that same right.  The court holds that the unilateral right to file in court is unenforceable.
    Plaintiff entered into a written contract with defendant to build an in-ground swimming pool.  Defendant prepared a contract, which contained an ADR provision that both parties electronically signed.  The court holds the portion of the ADR provision requiring mediation and arbitration of any controversy, dispute, or claim, including statutory claims, is valid and enforceable under Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430 (2014).
    However, the court finds the reservation of rights provision contained in the ADR section of the contract, which created an exception to arbitration only for defendant, to pursue a claim for money damages in court if plaintiff failed to pay under the contract while plaintiff was barred from seeking any relief in court, is unconscionable and therefore, unenforceable.  However, the court determined the reservation of rights provision was severable and struck it from the contract, which will allow the parties to mediate and arbitrate their disputes.
 

     In this tax appeal, the court is asked to determine whether the four-year limitation period governing the additional assessment of the Sales and Use Tax (SUT) applies to the issuance of a Notice of Finding of Responsible Person (Responsible Person Notice) for SUTs that a corporation has acknowledged it owed.  A merchant collects SUTs and holds them in trust "as trustee for and on account of the State."  N.J.S.A. 54:32B-12(a).  Thus, an officer or responsible person of a business is held personally liable for these taxes when the business fails to remit them to the State.
     The court concludes that the Responsible Person Notice is a collection tool for a previously determined, fixed, and final tax liability assessed against the business and not an additional assessment. Therefore, the issuance of a Responsible Person Notice for liability of SUT is not subject to a limitations period.  Accordingly, we affirm the Tax Court's order denying, in part, plaintiff Christopher Gill's motion for summary judgment and granting, in part, defendant Division of Taxation's motion for summary judgment.
 

     Appellants (the "LLCs") appeal from identical orders of the Law Division authorizing condemnation in accordance with the Township of Jackson's exercise of eminent domain against their respective properties, Lots 84 and 90.  The original ordinance authorizing the condemnation of the LLCs' land stated the public purpose for condemning the properties was for use as open space.  The second ordinance, passed after the LLCs had opposed the Township's condemnation efforts, elaborated and stated condemnation of the lots was necessary to affect a land-swap agreement the Township had with a private developer, but still did not otherwise identify the proposed use of the condemned lots.  
     Lots 84 and 90 are not being used for the asserted public purpose of open space—an otherwise valid public purpose for the exercise of eminent domain.  Instead, the lots are being condemned and combined with land the Township already owns to exchange them for land intended to be used as open space.  This court is aware of no reported case in New Jersey, nor has one been brought to its attention, where a private property was lawfully condemned for the sole purpose of exchanging it for other property that will be put to public use.  Neither Kelo v. City of New London, 545 U.S. 469, 477 (2005), nor the Eminent Domain Act, N.J.S.A. 20:3-1 to -50, contemplates the condemnation of a property for use solely as an asset in a scheme for an otherwise valid public purpose on some other property.  The record before us is bereft of any indication as to the intended use of the condemned lots, other than as what is, in essence, currency, to exchange for open space.
     Moreover, because the trial court's prior order authorizing the Township's land-swap agreement included Lots 84 and 90 although those lots were not owned by the Township, the land-swap agreement does not preclude the LLCs from opposing the condemnation, as claimed by the Township.  The Eminent Domain Act offers the exclusive procedure for a property owner's right to challenge the government's authority to condemn its private property.  Accordingly, the Law Division's orders approving the condemnation of the lots are reversed.
 

The issue before this court, one of first impression, is whether the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, compels the disclosure of email logs of public officials' personal computers discussing public business.  The trial judge's order denied plaintiff Alex Rosetti's OPRA request of defendants Ramapo-Indian Hills Regional High School Board of Education (Board) and Thomas Lambe, the Board's records custodian, seeking email logs from the personal computers of past and current Board members (collectively Board members) discussing Board business.  The judge decided the email logs were not government records and, if they were, they are too burdensome to produce. 

The court reverses the trial judge's order and remands this matter.  The court concludes the email logs on private servers are government records under N.J.S.A. 47:1A-1, and are disclosable based on Ass'n for Government Responsibility, Ethics & Transparency v. Borough of Mantoloking, 478 N.J. Super. 470, 489 (App. Div. 2024), where we held "OPRA's broad reach can include emails concerning government business, sent to or from personal accounts of government officials –– if the emails fall within the definition of government records."  

 
On remand, the Board members must search their personal email accounts to determine if the sought-after email logs are available.  If they determine the email logs are unavailable or there are burdens in producing them, they must produce Paff v. New Jersey Dep't of Labor, 392 N.J. Super. 334, 341 (App. Div. 2007). certifications.  After giving plaintiff the opportunity to respond, the trial judge must then decide if a fact-finding hearing is necessary.  Moreover, the judge must be satisfied the parties made good faith efforts to reasonably resolve their dispute.  Only after this process occurs can the judge decide if production of the email logs should be provided, or if they are too burdensome to provide.  
 

This commercial litigation mainly presents issues under the New Jersey Franchise Practices Act ("NJFPA"), N.J.S.A. 56:10-1 to -15.  As its principal claim in this case, defendant/third-party plaintiff Eastern Outdoor Furnishings ("Eastern Outdoor") contends that third-party defendant AMD Direct, Inc., ("AMD") violated the NJFPA in terminating Eastern Outdoor's alleged franchise to sell AMD's products.  AMD denies that such a franchise relationship existed.

The motion judge granted summary judgment to AMD, dismissing Eastern Outdoor's claims under the statute, upon specifically finding there was no "written agreement" establishing a franchise between the parties.  Eastern Outdoor has appealed that decision, along with other rulings made by the trial court. 

The court affirms the motion judge's grant of summary judgment dismissing the NJFPA claims, albeit based on somewhat different reasoning.  The court holds that to establish a franchise enforceable under the NJFPA, the statute does not require a comprehensive and integrated "written agreement" between the parties.  Instead, N.J.S.A. 56:10-3(a) more flexibly defines a franchise to consist of a "written arrangement" that also meets various other requirements.  Nonetheless, it is clear the record—even when viewed in a light most favorable to Eastern Outdoor—fails to provide sufficient evidence to establish such a qualifying "written arrangement."

Although the court affirms dismissal of the NJFPA claims, it remands the case to adjudicate Eastern Outdoor's separate claims of tortious interference and indemnification that were not expressly addressed in the motion judge's decision.
 

The primary issue in this appeal concerns the applicability of self-defense to all categories of homicide.  The court reaffirms the well-settled principle that self-defense, once found by a jury, shall serve as a complete justification for murder as well as all manslaughter offenses charged or otherwise permitted for consideration as lesser-included offenses.
 

Here, the jury found defendant met the self-defense test for murder but not passion/provocation manslaughter, returning a guilty verdict for the latter offense.  Based on that facially inconsistent verdict, our jurisprudence, and the established precept that self-defense is a complete defense to all categories of homicide, the court reverses defendant's conviction for passion/provocation manslaughter.   
 

In the unpublished portion of this opinion, the court addresses defendant's remaining arguments, including the trial court declining to charge aggravated assault, the applicability of self-defense to the weapons charges, the value of Rios's vehicle as it relates to the theft charge, and a review of the sentence imposed, respectively.  These arguments are largely rendered moot, affirmed, or remanded for resentencing. 
 

In this interlocutory appeal, the court considers the propriety of a bench warrant issued by the Law Division following defendant's failure to appear in person for a pretrial conference, even though he appeared virtually at this conference and nearly all prior court hearings.  A non-citizen of the United States and Mexican national, defendant was deported after he was indicted for third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1), and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b).  The motion judge issued the bench warrant, at the State's request, to serve as a detainer should defendant illegally reenter the United States or if the State elected to extradite defendant from Mexico.  The State thereafter acknowledged it was unlikely to extradite defendant on the third- and fourth-degree charges.  The motion judge denied defendant's ensuing motion to vacate the bench warrant and dismiss the indictment.  
 

On appeal, the court affirmed the order denying defendant's motion to dismiss the indictment, but reversed and remanded for the motion judge to vacate the bench warrant and permit defendant to appear remotely at all proceedings, including trial.  The court was persuaded, under the evolving jurisprudence, the judge erroneously denied defendant's reasonable request to appear virtually at an otherwise in-person trial in view of defendant's inability to legally reenter the United States and physically appear in court.  The court concluded defendant's virtual appearance is a reasonable accommodation given the circumstances presented in this case, not only to afford defendant an opportunity to contest the charges, but also to ensure the victim's rights are protected.  
 

In this public bidding dispute, the court is asked to determine if an archeologist, who is a subcontractor on a public works project, must be registered in accordance with the Public Works Contractor Registration Act (PWCR Act), N.J.S.A. 34:11-56.48 to -56.57.  Because the archeologist will not be performing "public work" as defined by the Prevailing Wage Act, N.J.S.A. 34:11-56.25 to -56.47, the court holds that the archeologist was not required to be registered under the PWCR Act.  Accordingly, the court affirms a Law Division order dismissing the challenge of Carbo Constructors Corp., a losing bidder, to the Passaic Valley Water Commission's award of the public contractor to J. Fletcher Creamer & Sons, Inc., the lowest qualified bidder.

The issue presented on this appeal is whether claims of insurance fraud under the Insurance Fraud Prevention Act (the Fraud Act), N.J.S.A. 17:33A-1 to -30, and the New Jersey Anti-Racketeering Act (RICO), N.J.S.A. 2C:41-1 to -6.2, are subject to arbitration under the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35.  The resolution of that issue involves discerning and harmonizing the Legislature's intent in enacting the Fraud Act, RICO, AICRA, and the arbitration system set up under AICRA for the resolution of disputes concerning personal injury protection (PIP) benefits.  The court holds that insurance fraud claims under the Fraud Act and RICO are not subject to PIP arbitration under AICRA.  Accordingly, the court reverses and vacates three orders in this matter that compelled plaintiffs' Fraud Act, RICO, and related declaratory judgment claims to PIP arbitration.  

Defendant appeals from the denial of his motion to suppress evidence seized during the search of his residence pursuant to a "knock and announce" warrant.  The police officers executing the warrant did not activate their body worn cameras (BWCs) until the moment they forcibly breached the door with a battering ram, and therefore, did not electronically record their compliance with the knock-and-announce rule as required by Attorney General directives.  Defendant asks us to create a new rule of law whereby evidence is suppressed when an officer violates an Attorney General directive while executing a knock-and-announce search warrant.  In the alternative, defendant contends the trial court should have drawn an adverse inference against the State and, ultimately, erred in finding that police complied with the knock-and-announce rule based on an officer's testimony that was not supported by a BWC recording.   

 
The court agrees with the motion judge that the failure to comply with an Attorney General directive does not constitute a constitutional violation.  Defendant cites no authority for the proposition that a violation of an Attorney General directive triggers the exclusionary rule when, as in this instance, the directive imposes a procedural requirement that neither the United States nor New Jersey Constitutions impose.  The court declines defendant's invitation to create any such new legal principle.

In reaching that conclusion, the court notes the Legislature did not include a suppression remedy in the statute that now governs police use of BWCs, N.J.S.A. 40A-118.5.  That statute incorporates guidelines or directives promulgated by the Attorney General about when BWCs should be activated.  See N.J.S.A. 40A:14-1-118.5(c)(1).  Instead of requiring suppression, the statute creates a "rebuttable presumption that exculpatory evidence was destroyed or not captured in favor of a defendant" when a law enforcement officer fails to adhere to BWC recording requirements.  N.J.S.A. 40A:14-118.5(q).  

The court holds this rebuttable presumption applies in suppression hearings and not just trials but concludes it does not apply in this case because the BWC statute applies prospectively and did not take effect until after the present search warrant was executed.  The court ultimately concludes there is sufficient credible evidence in the record to support the motion judge's finding that police did in fact knock and announce their identity and intent before using force to execute the search warrant.      

This appeal presents the question of whether a motor vehicle is defectively designed because it does not include the latest driver-assistance technologies even though not mandated by federal or state law.  Plaintiff contends that a 2016 Honda CR-V was defectively designed because it was not equipped with a lane departure warning (LDW) system and a lane keeping assist (LKA) system.  The court holds that the absence of those available driver-assistance systems, in a vehicle that was otherwise safe and fit for driving, did not, as a matter of law, establish that the 2016 Honda CR-V was defectively designed within the meaning of the New Jersey Products Liability Act, N.J.S.A. 2A:58C-1 to -11.  Accordingly, the court affirms the order granting summary judgment to defendant American Honda Motor Co., Inc. (Honda) and dismissing with prejudice plaintiff's product liability and negligence claims.

In this action in lieu of prerogative writs matter, the court holds that the Time of Application (TOA) Rule applies to a Resolution of Approval granted by the City of Hoboken Planning Board to defendant Blue Violets LLC.  Because Blue Violets LLC, an adult micro cannabis retail business, submitted its application to Hoboken's Cannabis Review Board before a newly entered ordinance restricting any cannabis retailer from being located within 600 feet of a primary or secondary school became effective, the court concludes the TOA Rule applies.  Consequently, the court reverses the trial court order, which vacated the Resolution of Approval and reinstates it.
 

The court affirmed the trial court's order finding plaintiff Hoboken for Responsible Cannabis, Inc, has standing as an interested party under the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163.
 

In adopting the present Criminal Code in 1978, our Legislature delineated the insanity defense to criminal charges as follows:

A person is not criminally responsible for conduct if at the time of such conduct he was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know what he was doing was wrong.

[N.J.S.A. 2C:4-1 (emphasis added).]

As expressed in these terms, the insanity statute codifies the common-law "M'Naghten" test dating back to nineteenth-century English law.  The Legislature has not revised this definition of insanity since Title 2C's enactment over fifty years ago.

The primary legal issue in this appeal is whether criminal defendants in New Jersey invoking N.J.S.A. 2C:4-1 are permitted to testify at trial about their own allegedly insane mental state without accompanying expert testimony from a qualified mental health professional.  The court agrees with the trial judge that such lay testimony, untethered to admissible expert opinion substantiating the defendant's "disease of the mind," is inadmissible under our Rules of Evidence and insufficient to advance an insanity defense under N.J.S.A. 2C:4-1.  This conclusion is supported by the history and text of the statute.  It is also consistent with the case law of most states that have addressed the issue under the M'Naghten test.  

Although policy arguments can be made and have been made to revise the criteria of N.J.S.A. 2C:4-1 and replace the traditional M'Naghten test with modern concepts of mental disorders, the Legislature has not done so.  Nor has our Supreme Court invalidated the statute as unconstitutional or construed the law to allow lay testimony to suffice to establish a defendant's insanity. Consequently, this court holds that defendants must have expert opinion testimony to meet their burden of proving the defense of insanity.  The court affirms the trial court's ruling that disallowed defendant in this case from testifying about his alleged insane state of mind without calling such an expert.

Judge Jacobs has filed an opinion concurring in the result in this case, but asserting that the law should permit defendants, in certain exceptional situations, to testify as lay witnesses in support of an insanity defense without corroboration by an expert witness.

Defendant challenges his extended-term sentence as a persistent offender based on Erlinger v. United States, 602 U.S. 821 (2024), decided on June 21, 2024.  The Erlinger majority held that under the Fifth and Sixth Amendments, a jury—not a sentencing judge—must decide whether the defendant's prior convictions had been committed on separate occasions, which is required to impose an enhanced sentence under the federal Armed Career Criminal Act.  It is undisputed that Erlinger abrogates the New Jersey Supreme Court's decision in State v. Pierce, 188 N.J. 155 (2006), which reached a different conclusion with respect to enhanced punishment as a persistent offender under N.J.S.A. 2C:44-3(a).

The State acknowledges that the Erlinger rule applies retroactively to "pipeline" cases pending direct appeal.  The State also concedes that defendant's Fifth and Sixth Amendment rights under Erlinger were violated when the judge, rather than a jury, decided that he was a persistent offender eligible for an extended term of imprisonment.  

The Attorney General nonetheless contends that the violation in this pipeline case was harmless constitutional error because the factual basis for defendant's extended-term eligibility is "overwhelming" and "uncontested."  The court ultimately rejects that argument.  The court notes that while the harmless constitutional error doctrine is mentioned in a one-paragraph concurring opinion and a dissenting opinion, the majority opinion in Erlinger is conspicuously silent on the topic.  The court declines to speculate on why the majority opinion does not address that doctrine. 

Instead, the court focuses on the portion of the majority opinion that explicitly rejected the argument that a jury verdict is not required when the predicate facts for an enhanced sentence are "so "'straightforward'" that sending it to a jury would be pointlessly inefficient."  602 U.S. at 839.  Stated another way, the majority opinion makes clear that overwhelming evidence does not obviate the need to have the decision made by a jury rather than a judge.  The majority in Erlinger also stressed that "[t]here is no efficiency exception to the Fifth and Sixth Amendments."  Id. at 842. 

The court concludes that applying the harmless constitutional error doctrine in these circumstances would eviscerate the Erlinger rule.  The court therefore vacates defendant's persistent-offender extended-term sentence.

The court rejects defendant's contention the plain language of N.J.S.A. 2C:44-3(a) precludes a jury from determining whether defendant is eligible for an extended term of imprisonment as a persistent offender. The court concludes the Legislature would prefer to have it construe the statute to comply with the Erlinger rule rather than allow the enhanced sentence provision to succumb to its constitutional infirmity.  Accordingly, the court remands to the trial court with instructions on how to remedy the constitutional violation. 

The mayor of Paterson, its public safety director, and its police chief sued the Attorney General and related defendants in the Law Division after the Attorney General superseded the entire Paterson Police Department.  The Attorney General, assumed administrative and operational control on March 27, 2023, transferred the police chief to the Division of Criminal Justice in Trenton, and appointed an Officer-in-Charge of the Paterson Police Department.  The Law Division judge consolidated and transferred the matters to the Appellate Division for review of the Attorney General's final administrative decision.  On appeal, plaintiffs argue, among other things, that neither statutes nor relevant case law support the supersession of the entire Paterson Police Department.

The court held that the Attorney General and related defendants did not have authority, either express or implied, to supersede the daily operations of the Paterson Police Department.  The court directed the Attorney General to: reassign the police chief to Paterson; to relinquish control of the day-to-day operation and administration of the police department to plaintiffs; and issue a report to plaintiffs summarizing all actions and expenditures undertaken by defendants on behalf of the department within twenty-one days.  The 2021 supersession of the Paterson Police Department's Internal Affairs Unit was left undisturbed.    

The primary issue in this case concerns the interpretation of the New Jersey Motor Vehicle Warranty Act ("the Lemon Law"), N.J.S.A. 56:12-29 to ‑49.  Among other things, the Lemon Law empowers courts to award consumers who timely report manufacturing defects "specific remedies where the uncorrected defect substantially impairs the use, value, or safety of the new motor vehicle."  N.J.S.A. 56:12-29.

The manufacturing defect in this case involves a crack in a new SUV's front windshield that emerged two days after plaintiff acquired the car.  The crack increased in size as time passed, purportedly hindering the driver's view and creating an alleged safety hazard.  Plaintiff promptly reported the crack, a condition covered by the manufacturer's warranty, to the manufacturer and the dealership that sold him the vehicle.  Despite plaintiff's repeated requests to have the windshield repaired or replaced, ten months passed before the defendant manufacturer did so, after plaintiff filed suit.  In the meantime, plaintiff contends he restricted his use of the SUV, avoiding highways and driving it with trepidation at lower speeds as the crack worsened.  The manufacturer refused to provide him with a loaner vehicle.

While the windshield was in its cracked condition, plaintiff filed suit against the manufacturer in the Law Division.  He sought remedies under the Lemon Law and other statutes.  The trial court granted summary judgment to the manufacturer, principally because by that time the manufacturer had replaced the windshield at no cost to plaintiff.

This court reverses the summary judgment dismissal of plaintiff's Lemon Law claim.  Viewing the facts in a light most favorable to plaintiff, a jury could rationally conclude the crack in the front windshield was a "substantial impairment" that was not replaced in a "reasonable amount of time" and entitled plaintiff to recourse.  In addition, New Jersey's motor vehicle code notably declares that motorists should not drive cars with "unduly fractured" windshields.  N.J.S.A. 39:3-75.  The Lemon Law claim is accordingly reinstated and the matter remanded for a jury trial. 

In the unpublished portion of this opinion, the court addresses plaintiff's other claims, most of which survive summary judgment.

In this appeal, the court addressees an issue of first impression –– whether a school district merged with another school district under N.J.S.A. 18A:8-44 has standing to withdraw from that district to join a newly formed all-purpose regional school district pursuant to N.J.S.A. 18A:13-47.11. 

Oceanport Board of Education and Shore Regional High School District Board of Education appeal from the September 22, 2023 decision of the Commissioner of Education which determined the Borough of Sea Bright had standing to withdraw from their districts and to petition the Commissioner for approval to join the all-purpose Henry Hudson Regional School District pursuant to N.J.S.A. 18A:13-47.11. 

Following the court's review of the record and applicable law, including the legislative history behind the enactment of N.J.S.A. 18A:13-1 to -81, it concluded the Commissioner's decision correctly interpretated N.J.S.A. 18A:13-47.11 because it comported with the statute's plain language and purpose.  The court further concluded N.J.S.A. 18A:13-47.11 was passed as part of a larger statutory scheme following the enactment of N.J.S.A. 40A:65-1 to -35 and N.J.S.A. 18A:8-43 to -51, to provide financial incentives to encourage shared services, financial accountability, and consolidation and regionalization of school districts.  The court affirms the decision of the Commissioner since it was supported by the record and was not arbitrary, capricious, or unreasonable.

         These cases, calendared back-to-back and consolidated for purposes of the court's opinion, present a novel issue:  whether a judge of compensation was conflicted from presiding over a matter involving the application of a statute which the judge previously sponsored as a member of the Legislature.

         The court held that a compensation judge who formerly sponsored a bill enacted into law is not per se disqualified from presiding over cases implicating or interpreting that law.  Rather, the judge must determine whether a reasonable person would doubt the judge's impartiality, given the judge's prior involvement in the legislative proceedings and the issues and facts presented in the case before the judge.

          Here, the court found the compensation judge's decision denying respondent's motion to recuse was not an abuse of discretion.  The court also affirmed the judge's determination that decedent, as a teacher in a public middle school, was an essential employee under N.J.S.A. 34:15-31.11.

Plaintiff has served as the Tax Assessor for defendant Township of Tewksbury for many years.  After a series of disagreements among the parties regarding plaintiff's assessments and her other work duties, Tewksbury attempted to remove plaintiff from her position.

Plaintiff filed a complaint in the Superior Court, alleging that defendants retaliated against her in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, from 2008 to 2019 for objecting to their attempts to unlawfully influence her assessment determinations and operate a "tax scheme." 

Defendants moved for summary judgment, asserting plaintiff could not establish a CEPA cause of action because she was not an "employee" under the statute entitled to CEPA protection.  The trial court granted the motion, relying on Casamasino v. Jersey City, 304 N.J. Super. 226 (App. Div. 1997), rev'd on other grounds, 158 N.J. 333 (1999), and found that, as a tenured and statutorily protected tax assessor, plaintiff is not an "employee" under CEPA. 

After a careful review, we conclude that Casamasino does not establish a bright line rule that all tax assessors are exempt from CEPA protection.  Despite the unique position a tax assessor holds because of the statutory protection from removal from employment, a court determining the applicability of CEPA should still assess the employment relationship under the framework established in Feldman v. Hunterdon Radiological Assocs., 187 N.J. 228 (2006), and D'Annunzio v. Prudential Ins. Co. of Am., 192 N.J. 110 (2007). See also Lippman v. Ethicon, Inc., 222 N.J. 362 (2015).  The court vacated the order granting summary judgment and remanded for the consideration of the factors articulated in Feldman and D'Annunzio and a determination whether plaintiff is an employee entitled to CEPA protection.

This court was asked to decide whether the State of New Jersey, Office of the Attorney General (OAG) was required to defend the Monmouth County Prosecutors Office (MCPO) in an action in lieu of prerogative writs filed against it by the former Township of Marlboro Deputy Police Chief.  The MCPO conducted an internal affairs investigation into allegations against the Deputy Chief pursuant to Attorney General Law Enforcement Directive No. 2022-14 (Directive 2022-14) and the OAG's Internal Affairs Policy & Procedures, November 2022 Version (IAPP).  After the MCPO issued a report of its findings, the Deputy Chief entered into an agreement with the Township and resigned, reserving his rights to challenge the MCPO's determinations.

The former Deputy Police Chief's prerogative writs action sought only injunctive relief against the MCPO, including an order prohibiting the MCPO from following the IAPP and Directive.  The OAG denied the MCPO's request for representation and the MCPO appealed.

The issue before the court was whether the OAG's duty to defend pursuant to the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to -12-3, arises when the underlying action demands no monetary damages and seeks only injunctive or equitable relief through an action in lieu of prerogative writs. 

In this case, the State's obligation to defend, if any, would stem solely from sections 10A-1 to -3 of the TCA.  Under N.J.S.A. 59:10A-1, the duty to defend state employees is mandatory only for tort actions demanding monetary damages.  The defense of all other actions is discretionary under N.J.S.A. 59:10A-3, as interpreted by the Court in Wright v. State, 169 N.J. Super. 422 (2001), and its progeny.

Since the action in lieu of prerogative writs at issue here sought no monetary damages, the court affirmed the OAG's discretionary decision denying representation to the MCPO. 

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.   

Defendant R.B. appeals the Family Part order terminating his parental rights to his then seven-year-old son H.N.B.  The parental rights of HNB's mother, A.M.W., were terminated by default, which she does not appeal.

R.B. contends the trial judge improperly advocated for the Division when questioning him and a DCPP caseworker, and by objecting to questions posed by his counsel.  R.B. argues the trial judge denied him due process by taking judicial notice of factual findings the judge made in a prior guardianship trial two years earlier.  The judge had rejected the Division of Child Protection and Permanency's (Division) parental termination plan because there was no permanent placement for H.N.B.  In addition, R.B. contends the Division failed to prove the four prongs of the best interests of the child test necessary to terminate his parental rights.  

The court concludes R.B.'s due process rights were violated because the trial judge failed to impartially conduct the trial by interfering with the presentation of evidence and relied upon his recollection of his findings from the prior guardianship trial.  The court further concludes R.B.'s due process rights were violated when the judge granted the Division's request to take judicial notice of factual findings made at the prior guardianship trial over his and the Law Guardian's objections because neither defense counsel nor the Law Guardian had represented their respective clients at the prior guardianship trial.   The court thus reverses the order terminating R.B.'s parental rights and remands for a new guardianship trial.  Consequently, the court does not address R.B.'s best interests arguments.
 

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 motion for leave granted, defendants Counsel on American Islamic Relations (CAIR) Foundation, CAIR-NJ, and CAIR-NJ's executive director, Selaedin Maksut (collectively CAIR defendants), appeal the Law Division's order denying their Rule 4:6-2(e) motion to dismiss plaintiff Tamar Herman's amended complaint with prejudice.  

Plaintiff, a second-grade school teacher, accused CAIR defendants of defamation per se and false light invasion of privacy for republishing social media posts by co-defendant Ibtihaj Muhammad that plaintiff forcibly removed the hijab of plaintiff's student and told the student she did not have to wear a hijab to school anymore because her hair was beautiful.

  
The court concludes plaintiff's amended complaint did not sufficiently allege a prima facie case of defamation and false-light invasion of privacy because she failed to assert facts that CAIR defendants' statements regarding plaintiff's interaction with the student were made with actual malice.  The court rejects plaintiff's request at oral argument that if we reverse the motion court, we order dismissal of her amended complaint without prejudice so that she can amend her complaint again with some guidance from us as to what facts must be alleged to establish actual malice.  Plaintiff amended her complaint after CAIR defendants' initial motion to dismiss was withdrawn without prejudice.  Given that opportunity to comport with the legal principles governing defamation, she cites no legal or factual basis to afford her another opportunity to amend her complaint.  Accordingly, we reverse and remand for an entry of an order dismissing plaintiff's complaint with prejudice as to CAIR defendants.
 

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.