Posted Date | Name of Case (Docket Number) | Type |
---|---|---|
June 3, 2024 |
STATE OF NEW JERSEY VS. JEFFREY WALKER (11-02-0411, MONMOUTH COUNTY AND STATEWIDE)
(A-2384-22)
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. |
Appellate |
June 3, 2024 |
DONNA PORCARO V. DIRECTOR, DIVISION OF TAXATION
(012296-2020 ; 012296-2020)
STATE GROSS INCOME TAX Tax Court: Donna Porcaro v. Director, Division of Taxation, Docket No. 012296-2020; opinion by Bedrin Murray, J.T.C., decided May 31, 2024. For plaintiffs – Donna Porcaro (Self-Represented); for defendant – Linzhi Wang (Matthew Platkin, Attorney General of New Jersey, attorney). Held: Plaintiff’s challenge to defendant’s denial of her claim for a refund of New Jersey gross income tax (GIT) for tax year 2016 is dismissed as untimely, depriving this court of subject matter jurisdiction. Based on the totality of credible testimonial and documentary evidence presented, the court finds that plaintiff received defendant’s December 21, 2017 final determination denying plaintiff’s refund claim in December 2017, and not in May 2020 as plaintiff alleges. Therefore, plaintiff was unable to overcome the presumption of receipt that attaches to defendant’s final determination under N.J.S.A. 54:50-6(a). As such, plaintiff’s complaint is dismissed with prejudice. (18 Pages) |
Tax |
May 31, 2024 |
STATE OF NEW JERSEY VS. SEAN JONES, ET AL. (88-07-2659 AND 92-12-4339, ESSEX COUNTY AND STATEWIDE AND 96-02-0526, CAMDEN COUNTY AND STATEWIDE) (CONSOLIDATED)
(A-3911-21/A-1264-22/A-1358-22)
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. |
Appellate |
May 30, 2024 |
Patrick Boyle v. Carol Huff
(A-42-22 ; 087900)
The ambiguous indemnification provision at issue here must be construed against the indemnitee, and the Court therefore reverses the Appellate Division’s judgment. Prospectively, parties to a contract intending to extend indemnification to first parties should include express language to achieve such an agreement. |
Supreme |
May 30, 2024 |
STATE OF NEW JERSEY VS. M.F.L. (18-02-0068, HUNTERDON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)
(A-3372-21)
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. |
Appellate |
May 29, 2024 |
New Jersey Division of Child Protection and Permanency v. J.C. and K.C
(A-8-23 ; 088071)
The family court does not have the authority under N.J.S.A. 30:4C-12 to dismiss a Title 30 action -- and with it, a parent’s appointed counsel -- but continue restraints on a parent’s conduct. If the family court finds that it is in the best interests of the child to continue the restraints on a parent’s conduct, it must keep the case open to facilitate judicial oversight of the Division’s continued involvement, while safeguarding a parent’s right to counsel. |
Supreme |
May 28, 2024 |
AC OCEAN WALK, LLC., ET AL. VS. BLUE OCEAN WATERS, LLC., ET AL. (C-000006-21, ATLANTIC COUNTY AND STATEWIDE)
(A-2312-22)
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. |
Appellate |
May 24, 2024 |
MARMO AND SONS GENERAL CONTRACTING, LLC VS. BIAGI FARMS, LLC, ET AL. (L-1109-22, GLOUCESTER COUNTY AND STATEWIDE)
(A-3120-22)
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. |
Appellate |
May 23, 2024 |
In re Protest of Contract for Retail Pharmacy Design, Construction, Start-Up and Operation, Request for Proposal No. UH-P20-006/ In re Sumukha LLC Challenge of Post-Award Changes to RFP UH-P20-006
(A-58/59-22 ; 088018/088019)
The Court finds no evidence in University Hospital’s enabling statute that the Legislature intended the Hospital to be a “state administrative agency” under Rule 2:2-3(a)(2). University Hospital’s decisions and actions may not be directly appealed to the Appellate Division. |
Supreme |
May 22, 2024 |
Susan Seago v. Board of Trustees, Teachers’ Pension and Annuity Fund
(A-9-23 ; 087786)
The TPAF Board acted arbitrarily, capriciously, and unreasonably when it denied Seago’s interfund transfer application. Under the unique facts of this case, equity requires that the TPAF Board grant Seago’s interfund transfer application. Seago’s reasonable and good-faith attempts to ensure that her interfund transfer application was timely filed, coupled with the absence of apparent harm to the pension fund, necessitate this outcome. |
Supreme |
May 21, 2024 |
New Jersey Division of Child Protection and Permanency v. B.P.
(A-56-22 ; 087676)
Although Beth left the hospital and did not return, Beth left Mia in a hospital where she was undoubtedly well taken care of and her needs were met. Nothing in the facts suggest that Beth’s actions impaired Mia or put Mia in imminent danger of being impaired while she remained in the safety of the hospital’s care. The Division therefore failed to meet its burden of establishing abuse or neglect pursuant to N.J.S.A. 9:6-8.21(c)(4)(a). |
Supreme |
May 20, 2024 |
BRYAN CALLAHAN VS. TRI-BOROUGH SAND AND STONE, ET AL. (L-0472-22, CAMDEN COUNTY AND STATEWIDE)
(A-2371-22)
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. |
Appellate |
May 15, 2024 |
Christopher Maia v. IEW Construction Group
(A-3-23 ; 088010)
Chapter 212 is to be applied prospectively to conduct that occurred on or after August 6, 2019 -- Chapter 212’s effective date -- not retroactively to conduct that occurred before that date. The trial judge properly dismissed the portions of the complaint relying on Chapter 212 but arising from conduct prior to its effective date. |
Supreme |
May 14, 2024 |
David Goyco v. Progressive Insurance Company
(A-12-23 ; 088497)
An LSES rider does not fall within the definition of “pedestrian” for purposes of the No-Fault Act. Goyco is not entitled to PIP benefits. |
Supreme |
May 13, 2024 |
James Kennedy, II v. Weichert Co. d/b/a Weichert Realtors
(A-48/49-22 ; 087975)
The parties’ agreement to enter into an independent contractor business affiliation is enforceable under N.J.S.A. 45:15-3.2, and Kennedy, as an independent contractor, was not subject to the WPL pursuant to N.J.S.A. 34:11-4.1(b). The trial court therefore erred when it denied Weichert’s motion to dismiss the complaint |
Supreme |
May 13, 2024 |
ASSOCIATION FOR GOVERNMENTAL RESPONSIBILITY, ETHICS AND TRANSPARENCY VS. BOROUGH OF MANTOLOKING, ET AL. (L-2729-22, OCEAN COUNTY AND STATEWIDE)
(A-2395-22)
This appeal presents a novel issue requiring the court to determine whether the New Jersey Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, or the common law right of public access, mandates disclosure of an attorney's identity when the attorney renders legal advice to a colleague or friend about an ongoing prosecution. In the present matter, a municipal prosecutor sought counsel from an attorney who, in turn, rendered advice via email to the prosecutor's personal account. The prosecutor, in turn, disclosed the contents of the email in open court and provided a printed copy of the email to the defense, but redacted the sender's name and email address. The municipality thereafter denied a government records request for the unredacted email. Plaintiff Association for Governmental Responsibility, Ethics, and Transparency (AGREAT) appeals from the March 3, 2023 Law Division order denying its order to show cause to compel production of the email requested from defendants Borough of Mantoloking, its clerk, and its custodian of records. The motion judge concluded the email did not fall within OPRA's definition of a government record. The court affirms the order under review and further holds the email is not subject to disclosure under the common law. The court also concludes, even if the email were a government record, the work product privilege and confidentiality exemptions under N.J.S.A. 47:1A-9(b) weigh against disclosure. Smith, J.A.D., filed a dissenting opinion, concluding: the redacted email was a public record under OPRA; the redacted email was privileged pursuant to the work-product privilege, but an attorney waived that privilege in court; a balancing of the public's access to government records with the email sender's reasonable expectation of privacy under Doe v. Poritz, 142 N.J. 1 (1995), justifies disclosure of the name and email address of the sender. |
Appellate |
May 8, 2024 |
State v. Andrew Higginbotham
(A-57-22 ; 088035)
Subsection (c) of the definition of “portray a child in a sexually suggestive manner” in N.J.S.A. 2C:24-4(b)(1) is unconstitutionally overbroad because it criminalizes a large swath of material that is neither obscenity nor child pornography. Because defendant was not charged under subsections (a) or (b) of the definition of “portray a child in a sexually suggestive manner,” and did not challenge subsections (a) or (b) before the trial court or the Appellate Division, the Court does not reach the validity of those subsections. |
Supreme |
May 7, 2024 |
Christine Savage v. Township of Neptune
(A-2-23 ; 087229)
Through N.J.S.A. 10:5-12.8(a), a section of the LAD that was enacted in |
Supreme |
May 7, 2024 |
STATE OF NEW JERSEY V. RAVEL STOKES
(21-07-0507)
The case at issue arises out of a homicide which was captured on a home surveillance system that took place during daylight hours in the City of Trenton. The suspect can be seen on the video walking down the sidewalk seconds before he/she reaches the victim and shoots him in the head, causing his death. The question presented was whether a proposed expert in the field of digital forensics should be permitted to testify and proffer an opinion at trial regarding the estimated height of the individual captured on the surveillance video based upon the application of a technique called reverse projection photogrammetry. The court held a Rule 104 hearing at which time the State’s proposed expert testified. Based on the evidence adduced at the hearing, the court ruled that the expert’s testimony was admissible pursuant to N.J.R.E 702. In that regard: (1) the subject of the testimony was beyond the ken of the average juror and would assist the trier of fact to understand whether the height of the individual depicted in the video was consistent with the defendant’s height; (2) the expert was duly qualified in the field of digital forensics, including reverse projection photogrammetry; and (3) the expert’s testimony and opinions were reliable because they are “based on a sound, adequately-founded scientific methodology involving data and information of the type reasonably relied on by experts in the field.” State v. Olenowski, ___ N.J. ___ (2023)(slip op. at 8). |
Trial |
May 6, 2024 |
Viktoriya Usachenok v. State of New Jersey Department of the Treasury
(A-40-22 ; 086861)
The State Constitution guarantees an affirmative right to speak freely. N.J. Const. art. I, ¶ 6. The guarantee extends to victims of harassment and discrimination who have a right to speak out about what happened to them. Although N.J.A.C. 4A:7-3.1(j) seeks to advance legitimate interests -- “to protect the integrity of the investigation, minimize the risk of retaliation . . . , and protect the important privacy interests of all concerned” -- it reaches too far in trying to achieve those aims and chills constitutionally protected speech. The rule is overbroad under the State Constitution, and the Court strikes the relevant part of the regulation. 1. New Jersey’s Constitution provides broader protection for free expression than the Federal Constitution and practically all others in the nation. (pp. 12-13) 2. The overbreadth doctrine considers the extent of a law’s deterrent effect on legitimate expression. A law is facially invalid on overbreadth grounds if the statute prohibits a substantial amount of protected speech relative to its plainly legitimate sweep. The United States Supreme Court’s application of the overbreadth doctrine in United States v. Stevens illustrates the principle. The Court found that the statute challenged in that case created an offense “of alarming breadth” because, although it purported to criminalize animal cruelty, the statute did not actually require “that the depicted conduct be cruel,” such that hunting periodicals could run afoul of the law. 559 U.S. 460, 474-76 (2010). The Court explained that it “would not uphold an unconstitutional statute based on the Government’s representation that it would use the statute “to reach only ‘extreme’ cruelty,” and that it could not rewrite the statute “to conform it to constitutional requirements.” Id. at 480-81. Because “the presumptively impermissible applications of [the law] far outnumber[ed] any permissible ones,” the Court held that the law was “substantially overbroad, and therefore invalid under the First Amendment.” Id. at 481-82. (pp. 14-17) 3. Consistent with the Supreme Court’s approach, the “first step” in this appeal is to examine the text of the regulation to construe its scope. See id. at 474. The critical language in N.J.A.C. 4A:7-3.1(j) has few, if any, limits. It directs state actors to ask victims and witnesses not to speak with anyone about any aspect of any investigation into harassment or discrimination. That request encompasses a great deal of protected speech, and it has no time limit. One exception appears in the text of the rule -- victims and witnesses can disclose information if “there is a legitimate business reason to” do so -- but the regulation does not offer guidance about what that means. And the regulation does not require that victims be told they are free to decline to follow the request, that they can consult with an attorney about it, or that there will be no repercussions if they exercise their protected right to free speech. Although framed as a request, there is an inherent power imbalance between the investigator who makes the request and the witness who hears it, with the result that many employees will undoubtedly give up their right to speak freely. (pp. 17-20) 4. Counsel for the Attorney General proposed revisions that would help address the regulation’s broad scope, but the Court cannot expand and rewrite the final sentence to render it constitutional. Id. at 481. The regulation is unconstitutionally overbroad. The Court acknowledges the State’s good-faith representations that the regulation can be narrowed, but it cannot rely on those representations to uphold the rule. See id. at 480. The Court strikes the last sentence of N.J.A.C. 4A:7-3.1(j) on overbreadth grounds based on the broad protections in the State Constitution. The Court explains why its opinion in R.M. v. Supreme Court of New Jersey, 185 N.J. 208 (2005), does not alter its analysis here. (pp. 20-22) 5. In striking part of the regulation, the Court does not question the principles the regulation tries to foster. The concerns addressed by confidentiality are entirely legitimate and are also important considerations in criminal and internal affairs investigations. The Court stresses that nothing in its opinion should be construed to limit requests for confidentiality by investigators in those settings. (pp. 22- 23) |
Supreme |