Opinion Summaries

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. 

The Court now resolves those limited areas in which the parties could not agree regarding the implementation of the Special Adjudicator’s findings and legal conclusions: (1) the proper procedure for challenging a prior Dennis-affected DWI conviction when facing enhanced sentencing on a subsequent DWI; and (2) the appropriate availability of Exhibit S-152.

A New Jersey State-issued diploma awarded based on passing the GED is not a “regular high school diploma” under 34 C.F.R. § 300.102(a)(3)(iv). Therefore, a student who receives such a State-issued diploma remains entitled to receive a free appropriate public education under the IDEA.

Based on the plain language deliberately crafted by the Legislature, read in context with the law as a whole, “routine” modifies only “maintenance and operations” and does not modify the remaining activities.

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. 

The only precondition to applying “the PSA’s privilege is whether the hospital performed its self-critical analysis in procedural compliance with N.J.S.A. 26:2H-12.25(b) and its implementing regulations.” Brugaletta v. Garcia, 234 N.J. 225, 247 (2018). One of those regulations requires that a facility’s patient safety committee operate independently from any other committee within the facility. See N.J.A.C. 8:43E-10.4(c)(4). The facilities in these consolidated appeals did not comply with that procedural requirement, and the disputed documents are therefore not privileged.

The plain language of the Compact authorizes the Commission to require the use of a PLA in a publicly bid construction project. The Commission’s ability to do so is not constrained by Ballinger.

The Court concurs with the trial court and Appellate Division that the Division met the requirements of N.J.S.A. 2C:52-19 in this matter. The Division established good cause and compelling need based on specific facts for an order authorizing it to use Arlo’s expunged records at the Title 9 abuse and neglect factfinding trial. It demonstrated that the subject matter of the criminal proceeding will also be the subject matter of the Title 9 trial. The trial court properly granted the Division’s application, and the Court affirms the Appellate Division’s judgment.

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 judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge Accurso’s opinion. The Court concurs with the Appellate Division “that ‘local telephone exchange’ as used in N.J.S.A. 54:4-1 means a local telephone network within a defined geographical area as depicted on Verizon’s tariff exchange maps.”
___ N.J. Super. at ___ (slip op. at 52).

LOCAL GOVERNMENTS, FINANCE.  LOCAL GOVERNMENTS, ADMINISTRATIVE BOARDS. ADMINISTRATION & PROCEDURE, ASSESSMENTS. STATE & LOCAL TAXES, REAL PROPERTY TAXES. LOCAL GOVERNMENTS, CLAIMS BY & AGAINST. LEGISLATION, INTERPRETATION. HEARINGS, EVIDENCE.  AMENDMENT OF PLEADINGS, RELATION BACK.  

Tax Court: Town of Morristown v. Morris County Board of Taxation; Docket No. 005100-2024, opinion by Novin, J.T.C., decided July 24, 2024.  For plaintiff – Emil H. Philibosian and Shaun S. Peterson (Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys); for defendant - Michelline Capistrano Foster, Deputy Attorney General (Matthew J. Platkin, Attorney General of New Jersey, attorney).

Defendant argued, under motion for summary judgment, that because plaintiff failed to object to defendant’s 2024 preliminary Morris County equalization table at the county hearing, under N.J.S.A. 54:3-18, plaintiff was precluded from challenging defendant’s 2024 final Morris County equalization table before the Tax Court under N.J.S.A. 54:51A-4a.  Defendant also argued that plaintiff’s challenge to the 2024 final Morris County equalization table was untimely filed under R. 8:4-2(a)(1), and that plaintiff cannot demonstrate defendant’s adoption of the 2024 final Morris County equalization table was arbitrary and capricious.  Therefore, defendant sought dismissal of plaintiff’s complaint with prejudice.
  
Holding: The court found the statutory language under N.J.S.A. 54:51A-4a and N.J.S.A. 54:51A-5b, permitting a taxing district or taxpayer to challenge a final county equalization table, to be clear and unambiguous.  Our Legislature required: (i) the filing of a timely a complaint in the Tax Court; (ii) the complaint must be served on the county board of taxation and on the chief executive officer and the clerk of the Board of Chosen Freeholders and on the clerk of every taxing district in the county; (iii) the complaint shall not suspend the apportionment of moneys or collection of taxes in the county; (iv) the Tax Court hearing shall be conducted in the county; (v) five days’ advance written notice of the hearing must be given by mail to the governing body of each taxing district in the county; and (vi) the hearing shall be conducted and a decision rendered on or before September 10, annually.  The court concluded that the Legislature did not impose any requirement that a taxing district object to a preliminary county equalization table, as a prerequisite to challenging a final county equalization table before the Tax Court.  In addition, the court determined that plaintiff’s complaint was timely filed, under R. 8:4-2(a)(1).  Finally, the court discerned that whether the adoption of the 2024 final Morris County equalization table is arbitrary and capricious, or whether the table is unreasonable, incorrect, or plainly unjust, and impresses upon plaintiff a substantially excessive share of the county tax burden, is a disputed material fact.  Accordingly, the court denied defendant’s motion for summary judgment.

(38 pages)
 

The six members of the Court who participated in this appeal unanimously agree that the standard set forth in in McKelvey, 173 N.J. at 51, applies in this case. The Court thus readopts that standard, with two refinements to accord with recent United States Supreme Court precedent, as set forth in Section III.C. of Justice Patterson’s concurring opinion. See infra. at ___ (slip op. at 26-32). The members of the Court are equally divided as to whether discovery is required in this case. As a result, the judgment of the Appellate Division, which affirmed the trial court’s dismissal of the case on summary judgment without discovery, is affirmed

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).