New Jersey Superior Court, Appellate Division - Unpublished Opinions Decisions 2018
Opinions 1001 - 1500 of 2104
SERGEANT FIRST CLASS FRANK CHIOFALO v. STATE POLICE OF THE STATE OF NEW JERSEY
Date: June 21, 2018
Docket Number: a2349-16
Date: June 21, 2018
Docket Number: a2349-16
AARON CHANDLER v. ANTOINETTE CHANDLER
Date: June 21, 2018
Docket Number: a2386-16 PER CURIAM In A-2386-16, Aaron Chandler1 appeals from an order dated November 4, 2016, which denied his motion to terminate alimony and apply the ...
Date: June 21, 2018
Docket Number: a2386-16 PER CURIAM In A-2386-16, Aaron Chandler1 appeals from an order dated November 4, 2016, which denied his motion to terminate alimony and apply the ...
THEBERGEN COUNTY BAR ASSOCIATION, INC., THE PASSAIC COUNTY BAR ASSOCIATION INC. and MIDDLESEX COUNTY BAR ASSOCIATION, INC v. STATE OF NEW JERSEY, and THE SUPREME COURT OF NEW JERSEY -
Date: June 21, 2018
Docket Number: a4353-16
Date: June 21, 2018
Docket Number: a4353-16
LSF8MASTER PARTICIPATION TRUST v. SIMON ZAROUR and MRS. ZAROUR, wife of SIMON ZAROUR, LYNX ASSET, and FRANKS GMC TRUCK CENTER
Date: June 21, 2018
Docket Number: a4361-16
Date: June 21, 2018
Docket Number: a4361-16
IN RE PETITION FOR EQUITABLE MODIFICATION OF THE COST APPORTIONMENTS FOR THE RIVER DELL REGIONAL SCHOOL DISTRICT BERGEN COUNTY
Date: June 21, 2018
Docket Number: a5393-13
Date: June 21, 2018
Docket Number: a5393-13
THE ESTATE OF LUIS CARLOS TAVARES and PAULA PIRES v. LUCAS CONSTRUCTION GROUP, INC
Date: June 20, 2018
Docket Number: a5272-15
Date: June 20, 2018
Docket Number: a5272-15
IN THE MATTER OF ANNA DELANEY, DEPARTMENT OF LAW AND PUBLIC SAFETY
Date: June 18, 2018
Docket Number: a1649-16
Date: June 18, 2018
Docket Number: a1649-16
MARISSA HANLEY v. NEW JERSEY MANUFACTURERS INSURANCE COMPANY
Date: June 18, 2018
Docket Number: a5023-15
Date: June 18, 2018
Docket Number: a5023-15
V.S. v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES
Date: June 18, 2018
Docket Number: a5179-16
Date: June 18, 2018
Docket Number: a5179-16
CHRISTINE MINSAVAGE v. BOARD OF TRUSTEES, TEACHERS PENSION AND ANNUITY FUND
Date: June 15, 2018
Docket Number: a1535-16
Date: June 15, 2018
Docket Number: a1535-16
IN THE MATTER OF FAHEEM MURPHY DEPARTMENT OF HUMAN SERVICES
Date: June 15, 2018
Docket Number: a1695-16
Date: June 15, 2018
Docket Number: a1695-16
DEUTSCHE BANK NATIONAL TRUST COMPANY v. MICHAEL HOCHMEYER
Date: June 15, 2018
Docket Number: a4714-16
Date: June 15, 2018
Docket Number: a4714-16
DIVISION OF CHILD PROTECTION AND PERMANENCY v. E.B.
Date: June 15, 2018
Docket Number: a4735-16 PER CURIAM Defendants E.B. (Erin) and M.B. (Martin) appeal from a June 21, 2017 Family Part order terminating their parental rights to their son ...
Date: June 15, 2018
Docket Number: a4735-16 PER CURIAM Defendants E.B. (Erin) and M.B. (Martin) appeal from a June 21, 2017 Family Part order terminating their parental rights to their son ...
MICHELE SCHWAB v. WOODBRIDGE TOWNSHIP SCHOOL DISTRICT BOARD OF EDUCATION MIDDLESEX COUNTY
Date: June 15, 2018
Docket Number: a4768-16
Date: June 15, 2018
Docket Number: a4768-16
MCICOMMUNICATION SERVICES INC v. DIRECTOR, DIVISION OF TAXATION
Date: June 15, 2018
Docket Number: a5735-14
Date: June 15, 2018
Docket Number: a5735-14
YOLANDA CRUZ v. STATE OF NEW JERSEY DEPARTMENT OF CORRECTIONS
Date: June 13, 2018
Docket Number: a3789-16
Date: June 13, 2018
Docket Number: a3789-16
IN THE MATTER OF THE ESTATE OF JOHN F. MCGRAIL, JR., Deceased
Date: June 13, 2018
Docket Number: a4570-16
Date: June 13, 2018
Docket Number: a4570-16
BENEDICT FEJOKU v. PRUDENTIAL LIFE INSURANCE COMPANY OF AMERICA
Date: June 11, 2018
Docket Number: a1026-15 PER CURIAM These related appeals2 by two plaintiffs in this legal malpractice matter arise out of the broader setting of employment discrimination ...
Date: June 11, 2018
Docket Number: a1026-15 PER CURIAM These related appeals2 by two plaintiffs in this legal malpractice matter arise out of the broader setting of employment discrimination ...
RENSSELAER CONSTRUCTION CO INC v. NEW VISIONS COMMUNITY DEVELOPMENT CORPORATION
Date: June 11, 2018
Docket Number: a1471-15 LEONE, J.A.D. Defendants New Visions Community Development Corporation (New Visions), its chairman Cornelius Martin, and its president Versey ...
Date: June 11, 2018
Docket Number: a1471-15 LEONE, J.A.D. Defendants New Visions Community Development Corporation (New Visions), its chairman Cornelius Martin, and its president Versey ...
PROCAP II, LLC v. BLOCK 682, LOT 49, 6 KOOSMAN DRIVE, MIDDLETOWN, NEW JERSEY
Date: June 11, 2018
Docket Number: a1822-16
Date: June 11, 2018
Docket Number: a1822-16
WOODCLIFF LAKE INVESTORS I, LLC v. PLANNING BOARD OF THE BOROUGH OF WOODCLIFF LAKE
Date: June 11, 2018
Docket Number: a3692-16
Date: June 11, 2018
Docket Number: a3692-16
CONCERNED CITIZENS OF LIVINGSTON v. TOWNSHIP OF LIVINGSTON
Date: June 11, 2018
Docket Number: a4171-15
Date: June 11, 2018
Docket Number: a4171-15
DIVISION OF CHILD PROTECTION AND PERMANENCY v. L.M.A.
Date: June 11, 2018
Docket Number: a4929-15 PER CURIAM Defendants L.M.A. (Lisa)1 and A.C. (Anthony), appeal from a June 29, 2016 order terminating their parental rights to their children ...
Date: June 11, 2018
Docket Number: a4929-15 PER CURIAM Defendants L.M.A. (Lisa)1 and A.C. (Anthony), appeal from a June 29, 2016 order terminating their parental rights to their children ...
DIVISION OF CHILD PROTECTION AND PERMANENCY v. K.M.
Date: June 8, 2018
Docket Number: a3133-16 PER CURIAM These related back-to-back appeals, which we consolidate for purposes of this opinion, involve a two-year-old girl, N.A.,1 who was born ...
Date: June 8, 2018
Docket Number: a3133-16 PER CURIAM These related back-to-back appeals, which we consolidate for purposes of this opinion, involve a two-year-old girl, N.A.,1 who was born ...
DIVISION OF CHILD PROTECTION AND PERMANENCY v. C.H.
Date: June 8, 2018
Docket Number: a3440-16 PER CURIAM In these consolidated appeals, L.H. ("mother") and C.H. ("father") (collectively, "defendants") appeal ...
Date: June 8, 2018
Docket Number: a3440-16 PER CURIAM In these consolidated appeals, L.H. ("mother") and C.H. ("father") (collectively, "defendants") appeal ...
JACQUELINE A. CHASSMAN v. LONGVIEW AT MONTVILLE CONDOMINIUM ASSOCIATION, INC.
Date: June 7, 2018
Docket Number: a1660-16
Date: June 7, 2018
Docket Number: a1660-16
MARK CHERNALIS v. DEBRA TAYLOR
Date: June 7, 2018
Docket Number: a3461-14 PER CURIAM The dispute underlying these appeals stems from the purchase of a shopping center. The transaction was complex. It was structured to ...
Date: June 7, 2018
Docket Number: a3461-14 PER CURIAM The dispute underlying these appeals stems from the purchase of a shopping center. The transaction was complex. It was structured to ...
IN THE MATTER OF THE ADOPTION OF A CHILD BY W.H.A. AND M.B.S
Date: June 6, 2018
Docket Number: a0164-16
Date: June 6, 2018
Docket Number: a0164-16
ARTRE SOURCES, LLC v. HARTZ CARPET II LIMITED PARTNERSHIP
Date: June 4, 2018
Docket Number: a0402-16
Date: June 4, 2018
Docket Number: a0402-16
SALVATORE PERILLO, JR v. VICKIE A. WHITE
Date: June 4, 2018
Docket Number: a3745-15 PER CURIAM In A-3745-15, defendant Vickie A. White appeals from specific paragraphs of the March 24, 2016 order that required her to pay $13,875 ...
Date: June 4, 2018
Docket Number: a3745-15 PER CURIAM In A-3745-15, defendant Vickie A. White appeals from specific paragraphs of the March 24, 2016 order that required her to pay $13,875 ...
DANIELLE BARNES v. USAA CASUALTY INSURANCE COMPANY USAA LIMITED
Date: June 1, 2018
Docket Number: a2323-16
Date: June 1, 2018
Docket Number: a2323-16
JOSEPHINE PENZA v. ROBERT A. PENZA
Date: June 1, 2018
Docket Number: a2404-16 PER CURIAM In these back-to-back appeals arising out of this matrimonial matter, we review the post-judgment orders of January 13, 2017, and March ...
Date: June 1, 2018
Docket Number: a2404-16 PER CURIAM In these back-to-back appeals arising out of this matrimonial matter, we review the post-judgment orders of January 13, 2017, and March ...
K.N. v. NEW JERSEY DEPARTMENT OF HUMAN SERVICES
Date: May 30, 2018
Docket Number: a0909-16 PER CURIAM In these two appeals that we have consolidated for the purpose of writing one opinion, K.N. appeals from the September 22, 2016 and ...
Date: May 30, 2018
Docket Number: a0909-16 PER CURIAM In these two appeals that we have consolidated for the purpose of writing one opinion, K.N. appeals from the September 22, 2016 and ...
JEFFREY FISCHER v. ATTORNEY GENERAL OF THE STATE OF NEW JERSEY
Date: May 30, 2018
Docket Number: a1736-16
Date: May 30, 2018
Docket Number: a1736-16
BOB MEYER COMMUNITIES INC. v. OHIO CASUALTY INSURANCE COMPANY
Date: May 25, 2018
Docket Number: a2171-17
Date: May 25, 2018
Docket Number: a2171-17
R.P. v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES
Date: May 25, 2018
Docket Number: a3041-16
Date: May 25, 2018
Docket Number: a3041-16
GARY L. MCWHORTER v. BOARD OF TRUSTEES, STATE POLICE RETIREMENT SYSTEM
Date: May 24, 2018
Docket Number: a3538-16
Date: May 24, 2018
Docket Number: a3538-16
ZAHIRAH N. HEMINGWAY v. BOARD OF REVIEW, DEPARTMENT OF LABOR
Date: May 23, 2018
Docket Number: a0760-16
Date: May 23, 2018
Docket Number: a0760-16
STATE OF NEW JERSEY v. HAROLD FERMIN ISMAEL PERALTA
Date: May 23, 2018
Docket Number: a4031-15 PER CURIAM Tried by a jury, defendants Harold Fermin, Ismael Peralta, and Michael Almonte were convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) and N.J.S.A. 2C:2-6 (count one); first-degree possession with the intent to distribute a CDS in a quantity of five ounces or more, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(1), and N.J.S.A. 2C:2-6 (count two); third-degree possession with the intent to distribute a CDS within 1000 feet of a school zone, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5(a), and N.J.S.A. 2C:2-6 (count three); and second-degree conspiracy to possess with the intent to distribute five ounces or more of a CDS, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(1), and N.J.S.A. 2C:2-6 (count four). Only Fermin and Peralta were indicted and convicted of third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (counts five and six). Only Peralta was indicted and convicted for third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1) (count seven). The court sentenced defendants on April 15, 2016. The trial judge merged the third-degree possession conviction and second- 2 A-4031-15T1 degree conspiracy with the first-degree possession offense for each defendant. Fermin was sentenced to fifteen years imprisonment on the first-degree offense, subject to a five-year parole disqualifier, and a concurrent four-year prison term on the hindering apprehension charge. The court sentenced Peralta to fourteen years imprisonment on the merged convictions, subject to four years and eight months of parole ineligibility. His sentence also included a concurrent three-year prison term on the hindering offense. Almonte's sentence consisted of a twelve-year prison term with a four-year parole disqualifier on the first-degree crime. Defendants appeal, and we affirm, consolidating the matters for decision. We glean the following facts from the trial record. On September 29, 2012, Passaic County Sheriff's Department Detective Stephan Lantigua and other officers executed a search warrant at a commercial building in Paterson. Defendants were in a unit similar in size and configuration to a single-car garage, with an interior loft. A sign outside read "K&H Auto Alarm and Service," and another sign indicated the business was closed. Over the course of two hours of surveillance before the execution of the warrant, Lantigua observed several people walk into the building and promptly depart. 3 A-4031-15T1 At approximately 5:00 p.m., Peralta entered the building, where he remained until arrested approximately an hour later. At 6:00 p.m., the detectives, dressed in bullet-proof vests with badges visible, knocked on the front door and announced they were police officers. Lantigua noticed two video surveillance cameras facing the entrance from opposite directions. As the detectives continued to knock, they "overheard several male voices coming from inside." One of the men said, "oh shit, the cops are outside. Get rid of that shit," then Lantigua heard "a loud movement." Concerned with officer safety and destruction of evidence, the detectives breached the door with a battering ram. Lantigua entered first and saw two individuals running a couple of steps to empty the contents of a wooden box into a five-gallon bucket of water that was no more than six inches full, or containing about a gallon. The men were later identified as Fermin and Peralta. Lantigua heard a noise from the loft. When he ran upstairs, he found Almonte, who was breathing heavily, seated on a couch. The officers seized thirty-one small, green-tinted Ziploc bags and seven clear, knotted plastic bags, all containing a white powdery substance suspected to be cocaine. They also recovered a brick- shaped folded paper towel from a hydraulic press that contained 4 A-4031-15T1 suspected cocaine powder, a box of baking soda, two digital scales, a police scanner, and numerous empty baggies. Once Lantigua arrived at headquarters, he secured the evidence. He noticed the paper towel contained a "dusting" of suspected cocaine. Lantigua emptied the paper towel into one of the seven knotted bags and secured the paper towel separately. He did not identify the bag into which the powder had been deposited. Lantigua acknowledged he violated police procedure related to the processing of evidence and he should have secured the residue from the paper towel into a separate evidence bag. Matthew Marino, the State's forensic scientist and expert witness, initially tested only four of the seven knotted bags, because their weight exceeded the five-ounce minimum for a first- degree possession charge. Once the critical weight was reached, state police procedure allowed for the testing to stop. The laboratory does not test for the presence of adulterants in the drugs, which often contain cutting agents. In October 2015, when Lantigua explained the manner in which he emptied the paper towel to the prosecutor during trial preparation, the prosecutor sent the remaining three bags and paper towel for testing. The first four bags collectively weighed 6.37 ounces. The remaining three bags weighed 10.474 grams, 0.303 grams, and 0.370 grams respectively, and the cocaine extracted 5 A-4031-15T1 from the paper towel weighed 0.112 grams. The thirty-one small baggies filled with suspected cocaine were not tested or weighed. The court qualified Detective Tory Weaver as an expert in the illegal drug trade. He testified drug dealers often increase the amount of their product by the use of cutting agents, such as baking soda or inositol powder. At times, a liquid and a cutting agent are blended together to create a paste mixed with the drugs. The paste is wrapped in a paper towel and repeatedly squeezed to remove any excess liquid. The cocaine is then heat-dried, resulting in a "finished, hard brick." The end product is cut, measured into one-half to one gram portions using digital scales, and packaged in small baggies. High-level drug dealers package drugs into bags weighing approximately one ounce for distribution. Drug dealers sometimes use a police scanner to monitor police activities. Prior to trial, the judge denied defendants' application to suppress the drugs on the basis Lantigua's act of emptying the paper towel into one of the bags irretrievably tainted the evidence. The judge also denied defendants' motion to bar the State from referring to the search warrant during trial. At trial, the judge instructed the jury on the limited use of the information regarding the execution of a search warrant. We later describe in detail the judge's decision on the motion for 6 A-4031-15T1 acquittal made under Rule 3:18-1 at the close of the State's case, the motion for a new trial, and his sentencing statement and findings regarding aggravating and mitigating factors. Fermin raises the following issues: POINT I – THE STATE'S CONTROLLED DANGEROUS SUBSTANCE EVIDENCE SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE AS IT WAS NOT IN THE SAME CONDITION AS WHEN THE ALLEGED CRIME OCCURRED. IN THE ALTERNATIVE, THE EVIDENCE DOES NOT ESTABLISH A FIRST-DEGREE CRIME POINT II – THE MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED AS TO THE CONSPIRACY AND THE POSSESSION OF CONTROLLED DANGEROUS SUBSTANCE CHARGES POINT III – PRINCIPLES OF DUE PROCESS ENTRAPMENT MANDATE THAT THE INSTANT CONVICTION BE REVERSED POINT IV – FREQUENT REFERENCES TO THE EXISTENCE OF A SEARCH WARRANT PREJUDICED THE FAIRNESS OF MR. FERMIN'S TRIAL BECAUSE THE LEGALITY OF THE SEARCH WAS NOT IN ISSUE POINT V – ADMISSION OF THE PHOTOGRAPH OF THE SCANNER [], THE SCANNER ITSELF [], AND THE PHOTOGRAPH OF THE BOX OF ARM & HAMMER BAKING SODA WAS UNDULY PREJUDICIAL AND SHOULD HAVE BEEN EXCLUDED PURSUANT TO N.J.R.E. 403 POINT VI - THE TRIAL COURT IMPROPERLY INTERFERED WITH THE PRESENTATION OF THE DEFENSE CASE WHEN IT PROHIBITED THE DEFENSE FROM REFERRING TO THE STATE'S EVIDENCE AS TAINTED OR AS CONTAMINATED POINT VII – THE HEARSAY EVIDENCE OF THE STATEMENT OF AN UNIDENTIFIED PERSON TO THE EFFECT THAT "OH, SHIT. THE COPS ARE HERE. GET RID OF THAT SHIT," OR WORDS TO THAT EFFECT, 7 A-4031-15T1 WAS INADMISSIBLE HEARSAY WHICH SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE, AND THE VALUE OF THE EVIDENCE WAS OUTWEIGHED BY ITS PREJUDICE POINT VIII – THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO INSTRUCT THE JURY REGARDING THE WEIGHT OF THE ALLEGED CONTROLLED SUBSTANCES, AN ELEMENT OF THE CONSPIRACY TO POSSESS 5 OUNCES OR MORE OF COCAINE WITH THE INTENT TO DISTRIBUTE POINT IX – THE MOTION FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED POINT X – CUMULATIVE ERROR REQUIRES A NEW TRIAL POINT XI – THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND ERRONEOUS DUE TO THE FAILURE OF THE COURT TO PROPERLY CONSIDER THE AGGRAVATING AND MITIGATING FACTORS Peralta contends the trial judge committed error as follows: POINT I THE COURT SHOULD NOT HAVE SUBMITTED THE CASE TO THE JURY AS A FIRST DEGREE CRIME BECAUSE AS A MATTER OF LAW THE STATE HAD NOT MET ITS BURDEN THAT THE COCAINE SEIZED WAS IN A QUAN[T]ITY OF FIVE OUNCES OR MORE POINT II PROSECUTION SHOULD HAVE DISMISSED INDICTMENT OR DISMISSED FIRST DEGREE COUNT ONCE IT LEARNED OF CONTAMINATED EVIDENCE Almonte raises the following points for our consideration: POINT I: DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE TRIAL COURT ALLOWED THE STATE TO PRESENT STATE POLICE LABORATORY REPORTS NOT PROBATIVE TO THE ELEMENTS OF THE OFFENSE POINT II: THE TRIAL COURT ERRED IN ALLOWING EXCESSIVE REFERENCES TO THE SEARCH WARRANT AS 8 A-4031-15T1 IT WAS UNDULY PREJUDICIAL AND DEPRIVED DEFENDANT OF AN IMPARTIAL JURY AND FAIR TRIAL POINT III: DEFENDANT WAS DENIED A FAIR TRIAL AS THE ADMITTANCE OF THE OUT-OF-COURT STATEMENT WAS UNDULY PREJUDICIAL, IRRELEVANT, AND AN INADMISSIBLE CO-DEFENDANT STATEMENT POINT IV: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS We address defendants' joint points of error, followed by discussion of individual issues. I. We first turn to defendants' contention that the admission of the State's proofs regarding the weight of the CDS was prejudicial error. It is well-established a trial judge is accorded broad discretion in determining the admissibility of evidence. State v. Scherzer, 301 N.J. Super. 363, 424 (App. Div. 1997) (citing State v. Wilson, 135 N.J. 4, 20 (1994)). Absent a clear abuse of discretion, we will uphold the trial court's evidentiary decisions. State v. Gorthy, 226 N.J. 516, 539 (2016) (citing State v. T.J.M., 220 N.J. 220, 233-34 (2015); State v. Buda, 195 N.J. 278, 294 (2008)). An abuse of discretion occurs when the "jurors are diverted 'from a reasonable and fair evaluation of the basic issue of guilt or innocence.'" State v. McDougald, 120 N.J. 523, 582 (1990) (citing State v. Sanchez, 224 N.J. Super. 231, 251 (App. Div. 1988)). The trial court's 9 A-4031-15T1 evidentiary rulings are disturbed only where they are "so wide off the mark that a manifest denial of justice resulted." Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016) (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). We reiterate Lantigua described the quantity of powder on the paper towel that he emptied into a bag as a "dusting." The jury obviously found him to be credible, as they were unconvinced by the defense arguments that the addition of the material from the paper towel irretrievably tainted the State's evidence. We are unconvinced as well. The argument that the material on the paper towel may have wrongfully tipped the weight into an excess of five grams simply runs contrary to Lantigua's testimony, and to common sense. Even if defense counsel were correct that the dusting emptied into a bag was baking soda or some other adulterant, that does not mean the weight would therefore be reduced. The State is not required to test for purity, nor is it obligated to test every specimen submitted to the lab. N.J.S.A. 2C:35-5(b); State v. Gosa, 263 N.J. Super. 527, 536-37 (App. Div. 1993). Rather, the State may test a small, randomly selected sample. Id. at 537. The facts in Gosa are illustrative. There, the state police chemist tested only fifteen vials randomly selected from a total of 180. Ibid. All were filled with a white powdery substance. 10 A-4031-15T1 Ibid. The defense theory was since less than ten percent of the vials were tested, a reasonable jury could not conclude the remaining vials contained CDS, nor could the untested vials be used to calculate five ounces. Id. at 534. We disagreed, because if the randomly chosen vials all contained cocaine, "the clear inference is that the other 165 vials, if tested, would also be found to contain cocaine." Id. at 537. Similarly, in the present case, the police recovered seven knotted plastic bags, and thirty-one small Ziploc baggies, all filled with a white powdery substance. The first four knotted bags tested positive for cocaine and weighed an aggregate 6.37 ounces. The rest of the knotted bags and the residue that remained on the paper towel also tested positive for cocaine. The forensic scientist did not total the last group that was tested, but the parties agreed during trial if the heaviest bag was removed, the weight of the remaining six bags would total 4.99 ounces. But that calculation assumes, however, the quantity of cocaine from the paper towel was equivalent to the heaviest bag, a conclusion not supported by the testimony. The chemist tested and weighed the additional drugs, concluding they came to 180.74 grams, or 6.37 ounces. He also tested the paper towel, which contained 0.112 grams of cocaine. Obviously, it would have been preferable if Lantigua had separately 11 A-4031-15T1 bagged the dusting on the towel, but its addition does not taint the evidence overall. The argument is entirely based on speculation——not a clear inference——and is unsupported by our caselaw. Assessing the evidence and the expert testimony, the jury could have reasonably concluded the State proved its case beyond a reasonable doubt. Likewise, Lantigua's credibility, in light of his failure to follow police procedures, is for the jury to decide. See State v. O'Brien, 200 N.J. 520, 534 (2009). The clear inference from the lab results is that the seven bags, the paper towel, and the untested thirty-one baggies together contained cocaine in excess of five ounces. The jury had sufficient evidence to draw the conclusion from the evidence presented to them. Defendants also contend, in an argument not raised below, the chain of custody was inadequate for admission. That point also lacks merit. A party proffering physical evidence must lay a proper foundation for its admission, including "a showing of an uninterrupted chain of possession." State v. Brunson, 132 N.J. 377, 393 (1993) (citing State v. Brown, 99 N.J. Super. 22, 27 (App. Div. 1968)). If the custodian of the evidence is the State, it is "not obligated to negate every possibility of substitution or change in condition of the evidence." Ibid. The evidence is 12 A-4031-15T1 admissible so long as the trial court "finds in reasonable probability that the evidence has not been changed in important respects or is in substantially the same condition as when the crime was committed." Brown, 99 N.J. Super. at 28 (citations omitted). Lantigua confirmed he personally gathered the cocaine from the garage, secured it, and took it to headquarters where he poured the white powder from the paper towel into a bag. He then packaged the materials for analysis by the lab. The evidence receipts delivered to the lab corroborated the testimony. Although two pieces of evidence were combined in violation of state police lab protocol, the chemist noted and corrected this paperwork confusion. In no way does that substantiate any potential chain of evidence claim. Nothing in that minor irregularity in the paperwork means the evidence was not in the same condition as when seized. This argument does not require further discussion in a written opinion. R. 2:11-3(e)(2). II. "[A] defendant is entitled to a judgment of acquittal on a charge 'if the evidence is insufficient to warrant a conviction.'" Gosa, 263 N.J. Super at 535 (quoting R. 3:18-1). On appeal, we apply the same standard as the trial court. State v. Moffa, 42 N.J. 258, 263 (1964). We determine "whether, viewing the State's 13 A-4031-15T1 evidence in its entirety, be that evidence direct or circumstantial," and giving the State the benefit of all favorable inferences, "a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 459 (1967) (citing State v. Fiorello, 36 N.J. 80, 90-91 (1961)). Fermin and Almonte argue the judge should have granted their motion for judgment of acquittal because the State did not prove the drugs weighed five ounces or more. The judge said as to the conspiracy count: I do find testimony as to this issue Detective Lantigua to be credible, that he found [Mr. Almonte] up on a loft, sitting on a couch breathing heavily. This was after he had entered the premises with the other officers . . . and observed the other two individuals, Mr. Peralta and . . . Mr. Fermin committing an act of what he . . . felt to be disposing of drugs. . . . In addition, I note there was [sic] various amounts of cocaine discovered in the premises. This was a very small [] one-car garage. . . . [There were] many other indicia of narcotics throughout . . . . Taking that testimony and what can be inferred from it, I find that . . . a reasonable fact-finder[] could determine beyond any reasonable doubt that the State has carried its burden of proof as to the charge of conspiracy [against Almonte]. . . . Secondly, as to the other defendants, I think it's even more clear. They were seen by Detective Lantigua discarding what appeared to be a controlled substance. There were 14 A-4031-15T1 numerous other controlled dangerous substances [and paraphernalia] found in this . . . very small building. . . . The motion will be denied. The judge also denied the motion as to the first-degree possession with intent to distribute count, explaining: [T]he towel from which the alleged cocaine was dumped did contain residue of it. In addition, the bag that it was dumped into was – after being tested by the State laboratory disclosed that it was containing cocaine. The bag clearly was not empty. . . . I find that a reasonable fact-finder, giving the State the benefit of all reasonable inferences, could determine that the amount that's alleged to have been involved here was in excess of five ounces. Accordingly, that aspect of the motion is going to be denied. The parties were found in a small one-car garage with substantial quantities of drugs and drug paraphernalia. Shortly after police entered the premises, and Fermin and Peralta attempted to discard the cocaine, Almonte was discovered seated upstairs in the loft, breathing heavily. Drawing all reasonable inferences in the State's favor, as the judge was obliged to do, there was sufficient evidence from which a reasonable jury could find defendants guilty beyond a reasonable doubt of conspiracy. It is similarly reasonable for a jury to have concluded the combination of drugs, including the additional thirty-one baggies filled with white powder, provide sufficient evidence for the jury to have 15 A-4031-15T1 convicted defendants. The court properly denied the motion of acquittal. III. Defendants argue the State's references to the execution of the search warrant had limited probative value and were exceedingly prejudicial. Fermin and Almonte specifically claim repeated references to the warrant were unnecessary, and the judge's limiting instruction did not protect them from the ensuing prejudice flowing from them. This argument also lacks merit, and warrants little discussion in a written opinion. R. 2:11-3(e)(2). As our Supreme Court directed in State v. Marshall, 148 N.J. 89 (1991), "a properly instructed jury will not presume guilt based on the issuance of a search warrant." Furthermore, "that a warrant was issued might necessarily be put before a jury in order to establish that the police acted properly." Id. at 240. More recently, in State v. McDonough, 337 N.J. Super. 27 (App. Div. 2001), we clarified evidence of search warrants was prejudicial only when the suggestion is made that a non-testifying witness has given the police evidence of an accused's guilt. Adhering to the Supreme Court's decision in Marshall, we said so long as a jury is properly instructed, a search warrant can be mentioned during the course of a trial. McDonough, 337 N.J. Super. at 32-33. 16 A-4031-15T1 The search warrant in this case was relevant to establish the officers' right to enter the place of business after hours. No one mentioned an arrest warrant for any individual or that a judge issued the warrant, or made any reference to the warrant process. The trial judge issued a limiting instruction early in the case, advising "[t]he execution of a search warrant has no evidential relevance whatsoever concerning the alleged guilt of an individual, and cannot be considered in that regard in any fashion during your deliberations." The judge included the limiting instruction in his closing charge. The requirements in Marshall were met and the judge did not abuse his discretion in allowing the State to refer to the search warrant. 148 N.J. at 212. IV. Peralta now argues for the first time the prosecutor should have dismissed the indictment upon the disclosure of Lantigua's mixing of the cocaine from the paper towel into the cocaine in a plastic bag. That act simply did not contaminate all the evidence. Admission of the drugs was not a plain error clearly capable of producing an unjust result. R. 2:10-2. We agree where the authorities have lost or destroyed evidence, the State must bear the consequences flowing from the loss. State v. Dreher, 302 N.J. Super. 408, 483 (Law Div. 1997). 17 A-4031-15T1 But we do not agree a due process violation occurred here because there was no loss or suppression of evidence, and thus no due process violation. See ibid. There was no bad faith or connivance on the part of the government. The amount of the material tossed into the knotted bag was a "dusting," and thirty-one baggies with white powder were neither weighed nor tested. Moreover, there was no evidence Lantigua's manipulation was intended to prejudice defendants' rights, or had that effect. See ibid. Therefore, no dismissal of the indictment is warranted based on a due process violation. Failure to dismiss the indictment on those grounds was not error at all, much less plain error. Fermin adds the court should have allowed defendants' use of the terms "tainted" or "contaminated" when referring to the State's evidence. He argues the court's prohibition amounted to unwarranted judicial interference. "[A] trial court has wide discretion in controlling the courtroom and the court proceedings." D.G. ex rel. J.G. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1, 26 (App. Div. 2008) (citing Ryslik v. Krass, 279 N.J. Super. 293, 297 (App. Div. 1995)). A trial judge's decisions must be reviewed within the context of the entire record in order to determine whether it had prejudicial impact. Ibid. (citing Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 298 (App. Div. 1999)). We uphold a discretionary 18 A-4031-15T1 ruling of the trial court, absent an abuse of discretion. See Persley v. N.J. Transit Bus Operations, 357 N.J. Super. 1, 9-10 (App. Div. 2003). Here, the trial judge reasoned: [T]he definition of "taint" from Merriam- Webster Dictionary states, to hurt or damage the condition of something; to make something dangerous or dirty, especially by adding something harmful or undesirable to it. Now while obviously . . . I'm not going to preclude any questioning as to – this . . . important issue. . . . in this Court's view[,] that's too strong of a phrase to be utilized to describe what occurred here and it could be unduly prejudicial to the jury. The same with the word "contaminate." I certainly feel that improperly mixed or mishandled would be more appropriate. The judge reasonably exercised his discretion in ensuring more precise terms would be used. The evidence was not "tainted" or "contaminated." The addition of the powder from the paper towel to the cocaine in one of the bags neither tainted nor contaminated the evidence in the literal sense of the words. V. Almonte contends the court improperly allowed Lantigua to testify as to the comments he heard while standing outside the garage before entry: "oh shit, the cops are outside. Get rid of that shit." The argument is since it cannot be attributed to any particular defendant, its admission is prejudicial to all. For 19 A-4031-15T1 the first time on appeal, Fermin and Almonte also argue the statements were inadmissible hearsay, and their admission violates the Confrontation Clause of the Sixth Amendment to the United States Constitution. The trial judge did not exclude the statement because everyone found in the garage was charged. Clearly, the statement is not hearsay, as it was not offered for the truth of the matter asserted. See N.J.R.E. 801(c); N.J.R.E. 802. Hearing the statement, Lantigua ordered the breach of the door, concerned about the safety of his officers and the destruction of potential evidence. Shortly after the officers' entry, Lantigua witnessed Peralta and Fermin attempting to destroy cocaine by dumping it into a bucket of water. The statement was offered merely to explain the forceful entry into the garage, not to prove the truth of the contents. Its admission was neither an abuse of discretion nor hearsay. Defendants also argue admission of the statement violated the Confrontation Clause of the Sixth Amendment to the United States Constitution and Article 1, Paragraph 10 of the New Jersey Constitution under the principles enunciated in Crawford v. Washington, 541 U.S. 36 (2004). We consider the argument under the plain error rule, as it was not made to the trial judge. See R. 2:10-2 ("[T]he appellate court may, in the interests of justice, 20 A-4031-15T1 notice plain error not brought to the attention of the trial court."). The overheard comments were spontaneous, as opposed to statements from a formal interview or to a government official. See Buda, 195 N.J. at 304 (Crawford, 541 U.S. at 511). The declarant's statement was akin to the "casual remarks to an acquaintance" described in Buda. Ibid. (Crawford, 541 at 511). Hence, admission did not violate the Confrontation Clause. VI. We review sentencing decisions of the trial court deferentially. State v. Case, 220 N.J. 49, 65 (2014) (citing State v. Lawless, 214 N.J. 594, 606 (2013)). Where the "aggravating and mitigating factors are identified, supported by competent, credible evidence in the record, and properly balanced," the sentence will stand. Ibid. (citing State v. Natale, 184 N.J. 458, 489 (2005)). We do not substitute our judgment for that of the trial court and only disturb those sentences that are "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984). Only Fermin challenges his sentence as manifestly excessive. The trial judge found aggravating factors nine, N.J.S.A. 2C:44-1(a)(9), and eleven, N.J.S.A. 2C:44-1(a)(11), and mitigating factors seven, N.J.S.A. 2C:44-1(b)(7), and nine, N.J.S.A. 21 A-4031-15T1 2C:44-1(b)(9) in this case. Fermin owned the business targeted by the search warrant, had been employed as a technician for twenty years, and had no prior criminal history. The judge took into account that although this was first-degree weight, it "was not a great deal over that five ounce threshold." The judge concluded Fermin's sentence should be somewhat more severe because it was his business that was targeted and the aggravating and mitigating factors were in equipoise. Thus, he sentenced defendant in the mid-range for the first-degree conviction. The judge's discussion displayed a thoughtful weighing and balancing of the statutory factors. His sentence does not shock our conscience. VII. Fermin contends the court should have excluded the police scanner, a photograph of the scanner, and a box of baking soda because their probative value was outweighed by their potential prejudicial effect. Evidence is relevant, and therefore admissible, if it has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401; accord N.J.R.E. 402; State v. Williams, 190 N.J. 114, 122-23 (2007). Relevant evidence may be excluded by the trial court if its probative value is substantially outweighed by the risk of unfair prejudice or 22 A-4031-15T1 other factors delineated in N.J.R.E. 403. Griffin, 225 N.J. at 420-21 (citations omitted). A photograph may be admitted into evidence despite its inflammatory nature if it is probative of some material fact in the case. State v. Bucanis, 26 N.J. 45, 51 (1958). In State v. Wakefield, for example, our Supreme Court upheld the admission into evidence of the photograph of a victim's body because it corroborated the testimony of several witnesses regarding the injuries to the victim and the location of the body. 190 N.J. 397, 432 (2007). Here, the trial court admitted a police scanner, a photograph of the scanner, and a photograph of a box of baking soda. Lantigua testified he recovered a scanner and a box of baking soda as a result of the search. The detective confirmed he recognized the photographs of the police scanner and the baking soda, and the pictures accurately depicted the locations where the items were found, thus establishing an adequate foundation for their admission. The photographs were relevant and corroborated Lantigua's testimony that those items were recovered during the search. Taken together with Weaver's expert testimony, the jury could reason that the items had a tendency to prove defendants were acting in furtherance of a drug distribution scheme. Such an 23 A-4031-15T1 inference is neither inflammatory nor prejudicial, in light of the other physical evidence——cocaine powder, drug packaging paraphernalia, and digital scales. Therefore, the trial judge did not abuse his discretion by admitting the scanner and photographs into evidence. VIII. Fermin asserts the trial court erred in failing to repeat the jury instructions regarding the weight of the cocaine when he gave the jury the conspiracy instruction. Since this argument was not made to the trial judge, we again employ the plain error standard. See R. 2:10-2. It is black letter law that in considering a jury instruction, plain error requires a showing of "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify" reversal. State v. Singleton, 211 N.J. 157, 182-83 (2012) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). The trial judge did instruct the jury about the weight element of the first-degree possession with intent to distribute. Having charged the jury correctly with reference to the first-degree offense and the need for the jury to determine the weight involved, there was no need to repeat the instruction on the conspiracy count. Repetition was unnecessary, as noted in 24 A-4031-15T1 the Model Jury Charges.1 This argument does not warrant further discussion in a written opinion. R. 2:11-3(e)(2). IX. Pursuant to Rule 3:20-1, a trial judge may grant a defendant's motion for a new trial "if required in the interest of justice." The trial judge must "set aside the verdict of the jury as against the weight of the evidence" if "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice." Ibid.; accord State v. Saunders, 302 N.J. Super. 509, 523 (App. Div. 1997). The trial judge must consider "not only tangible factors relative to the proofs as shown by the record, but also appropriate matters of credibility, generally peculiarly within the jury's domain, so-called 'demeanor evidence', and the intangible 'feel of the case' which he [or she] has gained by presiding over the trial." Dolson v. Anastasia, 55 N.J. 2, 6 (1969). "[T]he question is whether the result strikes the judicial mind as a miscarriage of justice." Ibid. (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 459 (1962)). Fermin asserts the court should have granted the motion for a new trial because 1 The Model Jury Charge for conspiracy, N.J.S.A. 2C:5-2, directs the judge to "IF NOT PREVIOUSLY STATED GIVE MODEL CHARGE FOR THE UNDERLYING OFFENSE." Model Jury Charges (Criminal), "Conspiracy" (revised April 12, 2010). 25 A-4031-15T1 it was a "manifest denial of justice" to allow the jury to "consider a first-degree crime despite the co-mingling of substances." The judge observed the issue of whether the State proved the CDS was five ounces or more was "very hotly contested," including during pretrial and the application for a judgment of acquittal at the end of the State's case. In denying defendants' motion for a new trial, the judge said: The jury had the ability to consider the testimony and the cross examination of both Detective Lantigua and the State's chemist. . . . In this [c]ourt's view the jury had ample opportunity to pass on a credibility of these two witnesses. . . . This [c]ourt is not clearly convinced that there was a manifest denial of justice, so under the law in terms of the jury's decision as to this issue. The jury had the opportunity to consider and weigh the testimony of Lantigua and Marino with reference to the quantity of drugs and other materials seized in the garage. The jury observed the thorough cross-examination of the State's witnesses by three defense attorneys. Thus, contrary to Fermin's assertion, no injustice resulted from the judge's denial of a motion for a new trial. 26 A-4031-15T1 X. Issues raised at trial are reviewed under the harmless error standard. R. 2:10-2. An alleged error brought to the trial court's attention will not be reversed unless it is "clearly capable of producing an unjust result." Ibid. Where constitutional rights are implicated, the reviewing court must consider whether the State has "proved beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Scherzer, 301 N.J. Super. at 454 (citation omitted) (quoting Chapman v. Cal., 386 U.S. 18, 24 (1967)). A new trial is required where cumulative error is not harmless. State v. Weaver, 219 N.J. 131, 162 (2014). In considering whether a defendant received a fair trial, a reviewing court must remember, "no trial can ever be entirely free of even the smallest defect. Our goal, nonetheless, must always be fairness. A defendant is entitled to a fair trial but not a perfect one." Wakefield, 190 N.J. at 537 (quoting State v. R.B., 183 N.J. 308, 333-34, (2005)). We disagree with Fermin that cumulative errors warrant a new trial. No errors were committed by the trial judge. Defendants were accorded a fair trial. 27 A-4031-15T1 XI. Fermin now argues for the first time on appeal Lantigua's mishandling of the cocaine constituted such "outrageous" conduct as to be the equivalent of due process entrapment. This issue was not raised below. Due process entrapment is an affirmative defense which must be proved by a preponderance of the evidence. State v. Florez, 134 N.J. 570, 583 (1994) (citing State v. Gibbons, 105 N.J. 67 (1987); State v. Medina, 201 N.J. Super. 565 (App. Div. 1985)). This point is so lacking in merit as to not warrant further discussion in a written opinion. R. 2:11-3(e)(2). Fermin also argues the officer's undisputed act of emptying a paper towel that had a "dusting of white powder" into a bag with drugs was such outrageous conduct it warranted a sanction. The argument that the undisputed violation of protocols regarding the processing of evidence violated due process also lacks merit. The point does not warrant further discussion in a written opinion. R. 2:11-3(e)(2). Affirmed. 28 A-4031-15T1
Date: May 23, 2018
Docket Number: a4031-15 PER CURIAM Tried by a jury, defendants Harold Fermin, Ismael Peralta, and Michael Almonte were convicted of third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1) and N.J.S.A. 2C:2-6 (count one); first-degree possession with the intent to distribute a CDS in a quantity of five ounces or more, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(1), and N.J.S.A. 2C:2-6 (count two); third-degree possession with the intent to distribute a CDS within 1000 feet of a school zone, N.J.S.A. 2C:35-7, N.J.S.A. 2C:35-5(a), and N.J.S.A. 2C:2-6 (count three); and second-degree conspiracy to possess with the intent to distribute five ounces or more of a CDS, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a)(1), N.J.S.A. 2C:35-5(b)(1), and N.J.S.A. 2C:2-6 (count four). Only Fermin and Peralta were indicted and convicted of third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (counts five and six). Only Peralta was indicted and convicted for third-degree possession of a CDS, N.J.S.A. 2C:35-10(a)(1) (count seven). The court sentenced defendants on April 15, 2016. The trial judge merged the third-degree possession conviction and second- 2 A-4031-15T1 degree conspiracy with the first-degree possession offense for each defendant. Fermin was sentenced to fifteen years imprisonment on the first-degree offense, subject to a five-year parole disqualifier, and a concurrent four-year prison term on the hindering apprehension charge. The court sentenced Peralta to fourteen years imprisonment on the merged convictions, subject to four years and eight months of parole ineligibility. His sentence also included a concurrent three-year prison term on the hindering offense. Almonte's sentence consisted of a twelve-year prison term with a four-year parole disqualifier on the first-degree crime. Defendants appeal, and we affirm, consolidating the matters for decision. We glean the following facts from the trial record. On September 29, 2012, Passaic County Sheriff's Department Detective Stephan Lantigua and other officers executed a search warrant at a commercial building in Paterson. Defendants were in a unit similar in size and configuration to a single-car garage, with an interior loft. A sign outside read "K&H Auto Alarm and Service," and another sign indicated the business was closed. Over the course of two hours of surveillance before the execution of the warrant, Lantigua observed several people walk into the building and promptly depart. 3 A-4031-15T1 At approximately 5:00 p.m., Peralta entered the building, where he remained until arrested approximately an hour later. At 6:00 p.m., the detectives, dressed in bullet-proof vests with badges visible, knocked on the front door and announced they were police officers. Lantigua noticed two video surveillance cameras facing the entrance from opposite directions. As the detectives continued to knock, they "overheard several male voices coming from inside." One of the men said, "oh shit, the cops are outside. Get rid of that shit," then Lantigua heard "a loud movement." Concerned with officer safety and destruction of evidence, the detectives breached the door with a battering ram. Lantigua entered first and saw two individuals running a couple of steps to empty the contents of a wooden box into a five-gallon bucket of water that was no more than six inches full, or containing about a gallon. The men were later identified as Fermin and Peralta. Lantigua heard a noise from the loft. When he ran upstairs, he found Almonte, who was breathing heavily, seated on a couch. The officers seized thirty-one small, green-tinted Ziploc bags and seven clear, knotted plastic bags, all containing a white powdery substance suspected to be cocaine. They also recovered a brick- shaped folded paper towel from a hydraulic press that contained 4 A-4031-15T1 suspected cocaine powder, a box of baking soda, two digital scales, a police scanner, and numerous empty baggies. Once Lantigua arrived at headquarters, he secured the evidence. He noticed the paper towel contained a "dusting" of suspected cocaine. Lantigua emptied the paper towel into one of the seven knotted bags and secured the paper towel separately. He did not identify the bag into which the powder had been deposited. Lantigua acknowledged he violated police procedure related to the processing of evidence and he should have secured the residue from the paper towel into a separate evidence bag. Matthew Marino, the State's forensic scientist and expert witness, initially tested only four of the seven knotted bags, because their weight exceeded the five-ounce minimum for a first- degree possession charge. Once the critical weight was reached, state police procedure allowed for the testing to stop. The laboratory does not test for the presence of adulterants in the drugs, which often contain cutting agents. In October 2015, when Lantigua explained the manner in which he emptied the paper towel to the prosecutor during trial preparation, the prosecutor sent the remaining three bags and paper towel for testing. The first four bags collectively weighed 6.37 ounces. The remaining three bags weighed 10.474 grams, 0.303 grams, and 0.370 grams respectively, and the cocaine extracted 5 A-4031-15T1 from the paper towel weighed 0.112 grams. The thirty-one small baggies filled with suspected cocaine were not tested or weighed. The court qualified Detective Tory Weaver as an expert in the illegal drug trade. He testified drug dealers often increase the amount of their product by the use of cutting agents, such as baking soda or inositol powder. At times, a liquid and a cutting agent are blended together to create a paste mixed with the drugs. The paste is wrapped in a paper towel and repeatedly squeezed to remove any excess liquid. The cocaine is then heat-dried, resulting in a "finished, hard brick." The end product is cut, measured into one-half to one gram portions using digital scales, and packaged in small baggies. High-level drug dealers package drugs into bags weighing approximately one ounce for distribution. Drug dealers sometimes use a police scanner to monitor police activities. Prior to trial, the judge denied defendants' application to suppress the drugs on the basis Lantigua's act of emptying the paper towel into one of the bags irretrievably tainted the evidence. The judge also denied defendants' motion to bar the State from referring to the search warrant during trial. At trial, the judge instructed the jury on the limited use of the information regarding the execution of a search warrant. We later describe in detail the judge's decision on the motion for 6 A-4031-15T1 acquittal made under Rule 3:18-1 at the close of the State's case, the motion for a new trial, and his sentencing statement and findings regarding aggravating and mitigating factors. Fermin raises the following issues: POINT I – THE STATE'S CONTROLLED DANGEROUS SUBSTANCE EVIDENCE SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE AS IT WAS NOT IN THE SAME CONDITION AS WHEN THE ALLEGED CRIME OCCURRED. IN THE ALTERNATIVE, THE EVIDENCE DOES NOT ESTABLISH A FIRST-DEGREE CRIME POINT II – THE MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED AS TO THE CONSPIRACY AND THE POSSESSION OF CONTROLLED DANGEROUS SUBSTANCE CHARGES POINT III – PRINCIPLES OF DUE PROCESS ENTRAPMENT MANDATE THAT THE INSTANT CONVICTION BE REVERSED POINT IV – FREQUENT REFERENCES TO THE EXISTENCE OF A SEARCH WARRANT PREJUDICED THE FAIRNESS OF MR. FERMIN'S TRIAL BECAUSE THE LEGALITY OF THE SEARCH WAS NOT IN ISSUE POINT V – ADMISSION OF THE PHOTOGRAPH OF THE SCANNER [], THE SCANNER ITSELF [], AND THE PHOTOGRAPH OF THE BOX OF ARM & HAMMER BAKING SODA WAS UNDULY PREJUDICIAL AND SHOULD HAVE BEEN EXCLUDED PURSUANT TO N.J.R.E. 403 POINT VI - THE TRIAL COURT IMPROPERLY INTERFERED WITH THE PRESENTATION OF THE DEFENSE CASE WHEN IT PROHIBITED THE DEFENSE FROM REFERRING TO THE STATE'S EVIDENCE AS TAINTED OR AS CONTAMINATED POINT VII – THE HEARSAY EVIDENCE OF THE STATEMENT OF AN UNIDENTIFIED PERSON TO THE EFFECT THAT "OH, SHIT. THE COPS ARE HERE. GET RID OF THAT SHIT," OR WORDS TO THAT EFFECT, 7 A-4031-15T1 WAS INADMISSIBLE HEARSAY WHICH SHOULD NOT HAVE BEEN ADMITTED INTO EVIDENCE, AND THE VALUE OF THE EVIDENCE WAS OUTWEIGHED BY ITS PREJUDICE POINT VIII – THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT FAILED TO INSTRUCT THE JURY REGARDING THE WEIGHT OF THE ALLEGED CONTROLLED SUBSTANCES, AN ELEMENT OF THE CONSPIRACY TO POSSESS 5 OUNCES OR MORE OF COCAINE WITH THE INTENT TO DISTRIBUTE POINT IX – THE MOTION FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED POINT X – CUMULATIVE ERROR REQUIRES A NEW TRIAL POINT XI – THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND ERRONEOUS DUE TO THE FAILURE OF THE COURT TO PROPERLY CONSIDER THE AGGRAVATING AND MITIGATING FACTORS Peralta contends the trial judge committed error as follows: POINT I THE COURT SHOULD NOT HAVE SUBMITTED THE CASE TO THE JURY AS A FIRST DEGREE CRIME BECAUSE AS A MATTER OF LAW THE STATE HAD NOT MET ITS BURDEN THAT THE COCAINE SEIZED WAS IN A QUAN[T]ITY OF FIVE OUNCES OR MORE POINT II PROSECUTION SHOULD HAVE DISMISSED INDICTMENT OR DISMISSED FIRST DEGREE COUNT ONCE IT LEARNED OF CONTAMINATED EVIDENCE Almonte raises the following points for our consideration: POINT I: DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE TRIAL COURT ALLOWED THE STATE TO PRESENT STATE POLICE LABORATORY REPORTS NOT PROBATIVE TO THE ELEMENTS OF THE OFFENSE POINT II: THE TRIAL COURT ERRED IN ALLOWING EXCESSIVE REFERENCES TO THE SEARCH WARRANT AS 8 A-4031-15T1 IT WAS UNDULY PREJUDICIAL AND DEPRIVED DEFENDANT OF AN IMPARTIAL JURY AND FAIR TRIAL POINT III: DEFENDANT WAS DENIED A FAIR TRIAL AS THE ADMITTANCE OF THE OUT-OF-COURT STATEMENT WAS UNDULY PREJUDICIAL, IRRELEVANT, AND AN INADMISSIBLE CO-DEFENDANT STATEMENT POINT IV: THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS We address defendants' joint points of error, followed by discussion of individual issues. I. We first turn to defendants' contention that the admission of the State's proofs regarding the weight of the CDS was prejudicial error. It is well-established a trial judge is accorded broad discretion in determining the admissibility of evidence. State v. Scherzer, 301 N.J. Super. 363, 424 (App. Div. 1997) (citing State v. Wilson, 135 N.J. 4, 20 (1994)). Absent a clear abuse of discretion, we will uphold the trial court's evidentiary decisions. State v. Gorthy, 226 N.J. 516, 539 (2016) (citing State v. T.J.M., 220 N.J. 220, 233-34 (2015); State v. Buda, 195 N.J. 278, 294 (2008)). An abuse of discretion occurs when the "jurors are diverted 'from a reasonable and fair evaluation of the basic issue of guilt or innocence.'" State v. McDougald, 120 N.J. 523, 582 (1990) (citing State v. Sanchez, 224 N.J. Super. 231, 251 (App. Div. 1988)). The trial court's 9 A-4031-15T1 evidentiary rulings are disturbed only where they are "so wide off the mark that a manifest denial of justice resulted." Griffin v. City of E. Orange, 225 N.J. 400, 413 (2016) (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). We reiterate Lantigua described the quantity of powder on the paper towel that he emptied into a bag as a "dusting." The jury obviously found him to be credible, as they were unconvinced by the defense arguments that the addition of the material from the paper towel irretrievably tainted the State's evidence. We are unconvinced as well. The argument that the material on the paper towel may have wrongfully tipped the weight into an excess of five grams simply runs contrary to Lantigua's testimony, and to common sense. Even if defense counsel were correct that the dusting emptied into a bag was baking soda or some other adulterant, that does not mean the weight would therefore be reduced. The State is not required to test for purity, nor is it obligated to test every specimen submitted to the lab. N.J.S.A. 2C:35-5(b); State v. Gosa, 263 N.J. Super. 527, 536-37 (App. Div. 1993). Rather, the State may test a small, randomly selected sample. Id. at 537. The facts in Gosa are illustrative. There, the state police chemist tested only fifteen vials randomly selected from a total of 180. Ibid. All were filled with a white powdery substance. 10 A-4031-15T1 Ibid. The defense theory was since less than ten percent of the vials were tested, a reasonable jury could not conclude the remaining vials contained CDS, nor could the untested vials be used to calculate five ounces. Id. at 534. We disagreed, because if the randomly chosen vials all contained cocaine, "the clear inference is that the other 165 vials, if tested, would also be found to contain cocaine." Id. at 537. Similarly, in the present case, the police recovered seven knotted plastic bags, and thirty-one small Ziploc baggies, all filled with a white powdery substance. The first four knotted bags tested positive for cocaine and weighed an aggregate 6.37 ounces. The rest of the knotted bags and the residue that remained on the paper towel also tested positive for cocaine. The forensic scientist did not total the last group that was tested, but the parties agreed during trial if the heaviest bag was removed, the weight of the remaining six bags would total 4.99 ounces. But that calculation assumes, however, the quantity of cocaine from the paper towel was equivalent to the heaviest bag, a conclusion not supported by the testimony. The chemist tested and weighed the additional drugs, concluding they came to 180.74 grams, or 6.37 ounces. He also tested the paper towel, which contained 0.112 grams of cocaine. Obviously, it would have been preferable if Lantigua had separately 11 A-4031-15T1 bagged the dusting on the towel, but its addition does not taint the evidence overall. The argument is entirely based on speculation——not a clear inference——and is unsupported by our caselaw. Assessing the evidence and the expert testimony, the jury could have reasonably concluded the State proved its case beyond a reasonable doubt. Likewise, Lantigua's credibility, in light of his failure to follow police procedures, is for the jury to decide. See State v. O'Brien, 200 N.J. 520, 534 (2009). The clear inference from the lab results is that the seven bags, the paper towel, and the untested thirty-one baggies together contained cocaine in excess of five ounces. The jury had sufficient evidence to draw the conclusion from the evidence presented to them. Defendants also contend, in an argument not raised below, the chain of custody was inadequate for admission. That point also lacks merit. A party proffering physical evidence must lay a proper foundation for its admission, including "a showing of an uninterrupted chain of possession." State v. Brunson, 132 N.J. 377, 393 (1993) (citing State v. Brown, 99 N.J. Super. 22, 27 (App. Div. 1968)). If the custodian of the evidence is the State, it is "not obligated to negate every possibility of substitution or change in condition of the evidence." Ibid. The evidence is 12 A-4031-15T1 admissible so long as the trial court "finds in reasonable probability that the evidence has not been changed in important respects or is in substantially the same condition as when the crime was committed." Brown, 99 N.J. Super. at 28 (citations omitted). Lantigua confirmed he personally gathered the cocaine from the garage, secured it, and took it to headquarters where he poured the white powder from the paper towel into a bag. He then packaged the materials for analysis by the lab. The evidence receipts delivered to the lab corroborated the testimony. Although two pieces of evidence were combined in violation of state police lab protocol, the chemist noted and corrected this paperwork confusion. In no way does that substantiate any potential chain of evidence claim. Nothing in that minor irregularity in the paperwork means the evidence was not in the same condition as when seized. This argument does not require further discussion in a written opinion. R. 2:11-3(e)(2). II. "[A] defendant is entitled to a judgment of acquittal on a charge 'if the evidence is insufficient to warrant a conviction.'" Gosa, 263 N.J. Super at 535 (quoting R. 3:18-1). On appeal, we apply the same standard as the trial court. State v. Moffa, 42 N.J. 258, 263 (1964). We determine "whether, viewing the State's 13 A-4031-15T1 evidence in its entirety, be that evidence direct or circumstantial," and giving the State the benefit of all favorable inferences, "a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 459 (1967) (citing State v. Fiorello, 36 N.J. 80, 90-91 (1961)). Fermin and Almonte argue the judge should have granted their motion for judgment of acquittal because the State did not prove the drugs weighed five ounces or more. The judge said as to the conspiracy count: I do find testimony as to this issue Detective Lantigua to be credible, that he found [Mr. Almonte] up on a loft, sitting on a couch breathing heavily. This was after he had entered the premises with the other officers . . . and observed the other two individuals, Mr. Peralta and . . . Mr. Fermin committing an act of what he . . . felt to be disposing of drugs. . . . In addition, I note there was [sic] various amounts of cocaine discovered in the premises. This was a very small [] one-car garage. . . . [There were] many other indicia of narcotics throughout . . . . Taking that testimony and what can be inferred from it, I find that . . . a reasonable fact-finder[] could determine beyond any reasonable doubt that the State has carried its burden of proof as to the charge of conspiracy [against Almonte]. . . . Secondly, as to the other defendants, I think it's even more clear. They were seen by Detective Lantigua discarding what appeared to be a controlled substance. There were 14 A-4031-15T1 numerous other controlled dangerous substances [and paraphernalia] found in this . . . very small building. . . . The motion will be denied. The judge also denied the motion as to the first-degree possession with intent to distribute count, explaining: [T]he towel from which the alleged cocaine was dumped did contain residue of it. In addition, the bag that it was dumped into was – after being tested by the State laboratory disclosed that it was containing cocaine. The bag clearly was not empty. . . . I find that a reasonable fact-finder, giving the State the benefit of all reasonable inferences, could determine that the amount that's alleged to have been involved here was in excess of five ounces. Accordingly, that aspect of the motion is going to be denied. The parties were found in a small one-car garage with substantial quantities of drugs and drug paraphernalia. Shortly after police entered the premises, and Fermin and Peralta attempted to discard the cocaine, Almonte was discovered seated upstairs in the loft, breathing heavily. Drawing all reasonable inferences in the State's favor, as the judge was obliged to do, there was sufficient evidence from which a reasonable jury could find defendants guilty beyond a reasonable doubt of conspiracy. It is similarly reasonable for a jury to have concluded the combination of drugs, including the additional thirty-one baggies filled with white powder, provide sufficient evidence for the jury to have 15 A-4031-15T1 convicted defendants. The court properly denied the motion of acquittal. III. Defendants argue the State's references to the execution of the search warrant had limited probative value and were exceedingly prejudicial. Fermin and Almonte specifically claim repeated references to the warrant were unnecessary, and the judge's limiting instruction did not protect them from the ensuing prejudice flowing from them. This argument also lacks merit, and warrants little discussion in a written opinion. R. 2:11-3(e)(2). As our Supreme Court directed in State v. Marshall, 148 N.J. 89 (1991), "a properly instructed jury will not presume guilt based on the issuance of a search warrant." Furthermore, "that a warrant was issued might necessarily be put before a jury in order to establish that the police acted properly." Id. at 240. More recently, in State v. McDonough, 337 N.J. Super. 27 (App. Div. 2001), we clarified evidence of search warrants was prejudicial only when the suggestion is made that a non-testifying witness has given the police evidence of an accused's guilt. Adhering to the Supreme Court's decision in Marshall, we said so long as a jury is properly instructed, a search warrant can be mentioned during the course of a trial. McDonough, 337 N.J. Super. at 32-33. 16 A-4031-15T1 The search warrant in this case was relevant to establish the officers' right to enter the place of business after hours. No one mentioned an arrest warrant for any individual or that a judge issued the warrant, or made any reference to the warrant process. The trial judge issued a limiting instruction early in the case, advising "[t]he execution of a search warrant has no evidential relevance whatsoever concerning the alleged guilt of an individual, and cannot be considered in that regard in any fashion during your deliberations." The judge included the limiting instruction in his closing charge. The requirements in Marshall were met and the judge did not abuse his discretion in allowing the State to refer to the search warrant. 148 N.J. at 212. IV. Peralta now argues for the first time the prosecutor should have dismissed the indictment upon the disclosure of Lantigua's mixing of the cocaine from the paper towel into the cocaine in a plastic bag. That act simply did not contaminate all the evidence. Admission of the drugs was not a plain error clearly capable of producing an unjust result. R. 2:10-2. We agree where the authorities have lost or destroyed evidence, the State must bear the consequences flowing from the loss. State v. Dreher, 302 N.J. Super. 408, 483 (Law Div. 1997). 17 A-4031-15T1 But we do not agree a due process violation occurred here because there was no loss or suppression of evidence, and thus no due process violation. See ibid. There was no bad faith or connivance on the part of the government. The amount of the material tossed into the knotted bag was a "dusting," and thirty-one baggies with white powder were neither weighed nor tested. Moreover, there was no evidence Lantigua's manipulation was intended to prejudice defendants' rights, or had that effect. See ibid. Therefore, no dismissal of the indictment is warranted based on a due process violation. Failure to dismiss the indictment on those grounds was not error at all, much less plain error. Fermin adds the court should have allowed defendants' use of the terms "tainted" or "contaminated" when referring to the State's evidence. He argues the court's prohibition amounted to unwarranted judicial interference. "[A] trial court has wide discretion in controlling the courtroom and the court proceedings." D.G. ex rel. J.G. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1, 26 (App. Div. 2008) (citing Ryslik v. Krass, 279 N.J. Super. 293, 297 (App. Div. 1995)). A trial judge's decisions must be reviewed within the context of the entire record in order to determine whether it had prejudicial impact. Ibid. (citing Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 298 (App. Div. 1999)). We uphold a discretionary 18 A-4031-15T1 ruling of the trial court, absent an abuse of discretion. See Persley v. N.J. Transit Bus Operations, 357 N.J. Super. 1, 9-10 (App. Div. 2003). Here, the trial judge reasoned: [T]he definition of "taint" from Merriam- Webster Dictionary states, to hurt or damage the condition of something; to make something dangerous or dirty, especially by adding something harmful or undesirable to it. Now while obviously . . . I'm not going to preclude any questioning as to – this . . . important issue. . . . in this Court's view[,] that's too strong of a phrase to be utilized to describe what occurred here and it could be unduly prejudicial to the jury. The same with the word "contaminate." I certainly feel that improperly mixed or mishandled would be more appropriate. The judge reasonably exercised his discretion in ensuring more precise terms would be used. The evidence was not "tainted" or "contaminated." The addition of the powder from the paper towel to the cocaine in one of the bags neither tainted nor contaminated the evidence in the literal sense of the words. V. Almonte contends the court improperly allowed Lantigua to testify as to the comments he heard while standing outside the garage before entry: "oh shit, the cops are outside. Get rid of that shit." The argument is since it cannot be attributed to any particular defendant, its admission is prejudicial to all. For 19 A-4031-15T1 the first time on appeal, Fermin and Almonte also argue the statements were inadmissible hearsay, and their admission violates the Confrontation Clause of the Sixth Amendment to the United States Constitution. The trial judge did not exclude the statement because everyone found in the garage was charged. Clearly, the statement is not hearsay, as it was not offered for the truth of the matter asserted. See N.J.R.E. 801(c); N.J.R.E. 802. Hearing the statement, Lantigua ordered the breach of the door, concerned about the safety of his officers and the destruction of potential evidence. Shortly after the officers' entry, Lantigua witnessed Peralta and Fermin attempting to destroy cocaine by dumping it into a bucket of water. The statement was offered merely to explain the forceful entry into the garage, not to prove the truth of the contents. Its admission was neither an abuse of discretion nor hearsay. Defendants also argue admission of the statement violated the Confrontation Clause of the Sixth Amendment to the United States Constitution and Article 1, Paragraph 10 of the New Jersey Constitution under the principles enunciated in Crawford v. Washington, 541 U.S. 36 (2004). We consider the argument under the plain error rule, as it was not made to the trial judge. See R. 2:10-2 ("[T]he appellate court may, in the interests of justice, 20 A-4031-15T1 notice plain error not brought to the attention of the trial court."). The overheard comments were spontaneous, as opposed to statements from a formal interview or to a government official. See Buda, 195 N.J. at 304 (Crawford, 541 U.S. at 511). The declarant's statement was akin to the "casual remarks to an acquaintance" described in Buda. Ibid. (Crawford, 541 at 511). Hence, admission did not violate the Confrontation Clause. VI. We review sentencing decisions of the trial court deferentially. State v. Case, 220 N.J. 49, 65 (2014) (citing State v. Lawless, 214 N.J. 594, 606 (2013)). Where the "aggravating and mitigating factors are identified, supported by competent, credible evidence in the record, and properly balanced," the sentence will stand. Ibid. (citing State v. Natale, 184 N.J. 458, 489 (2005)). We do not substitute our judgment for that of the trial court and only disturb those sentences that are "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984). Only Fermin challenges his sentence as manifestly excessive. The trial judge found aggravating factors nine, N.J.S.A. 2C:44-1(a)(9), and eleven, N.J.S.A. 2C:44-1(a)(11), and mitigating factors seven, N.J.S.A. 2C:44-1(b)(7), and nine, N.J.S.A. 21 A-4031-15T1 2C:44-1(b)(9) in this case. Fermin owned the business targeted by the search warrant, had been employed as a technician for twenty years, and had no prior criminal history. The judge took into account that although this was first-degree weight, it "was not a great deal over that five ounce threshold." The judge concluded Fermin's sentence should be somewhat more severe because it was his business that was targeted and the aggravating and mitigating factors were in equipoise. Thus, he sentenced defendant in the mid-range for the first-degree conviction. The judge's discussion displayed a thoughtful weighing and balancing of the statutory factors. His sentence does not shock our conscience. VII. Fermin contends the court should have excluded the police scanner, a photograph of the scanner, and a box of baking soda because their probative value was outweighed by their potential prejudicial effect. Evidence is relevant, and therefore admissible, if it has "a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401; accord N.J.R.E. 402; State v. Williams, 190 N.J. 114, 122-23 (2007). Relevant evidence may be excluded by the trial court if its probative value is substantially outweighed by the risk of unfair prejudice or 22 A-4031-15T1 other factors delineated in N.J.R.E. 403. Griffin, 225 N.J. at 420-21 (citations omitted). A photograph may be admitted into evidence despite its inflammatory nature if it is probative of some material fact in the case. State v. Bucanis, 26 N.J. 45, 51 (1958). In State v. Wakefield, for example, our Supreme Court upheld the admission into evidence of the photograph of a victim's body because it corroborated the testimony of several witnesses regarding the injuries to the victim and the location of the body. 190 N.J. 397, 432 (2007). Here, the trial court admitted a police scanner, a photograph of the scanner, and a photograph of a box of baking soda. Lantigua testified he recovered a scanner and a box of baking soda as a result of the search. The detective confirmed he recognized the photographs of the police scanner and the baking soda, and the pictures accurately depicted the locations where the items were found, thus establishing an adequate foundation for their admission. The photographs were relevant and corroborated Lantigua's testimony that those items were recovered during the search. Taken together with Weaver's expert testimony, the jury could reason that the items had a tendency to prove defendants were acting in furtherance of a drug distribution scheme. Such an 23 A-4031-15T1 inference is neither inflammatory nor prejudicial, in light of the other physical evidence——cocaine powder, drug packaging paraphernalia, and digital scales. Therefore, the trial judge did not abuse his discretion by admitting the scanner and photographs into evidence. VIII. Fermin asserts the trial court erred in failing to repeat the jury instructions regarding the weight of the cocaine when he gave the jury the conspiracy instruction. Since this argument was not made to the trial judge, we again employ the plain error standard. See R. 2:10-2. It is black letter law that in considering a jury instruction, plain error requires a showing of "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify" reversal. State v. Singleton, 211 N.J. 157, 182-83 (2012) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). The trial judge did instruct the jury about the weight element of the first-degree possession with intent to distribute. Having charged the jury correctly with reference to the first-degree offense and the need for the jury to determine the weight involved, there was no need to repeat the instruction on the conspiracy count. Repetition was unnecessary, as noted in 24 A-4031-15T1 the Model Jury Charges.1 This argument does not warrant further discussion in a written opinion. R. 2:11-3(e)(2). IX. Pursuant to Rule 3:20-1, a trial judge may grant a defendant's motion for a new trial "if required in the interest of justice." The trial judge must "set aside the verdict of the jury as against the weight of the evidence" if "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice." Ibid.; accord State v. Saunders, 302 N.J. Super. 509, 523 (App. Div. 1997). The trial judge must consider "not only tangible factors relative to the proofs as shown by the record, but also appropriate matters of credibility, generally peculiarly within the jury's domain, so-called 'demeanor evidence', and the intangible 'feel of the case' which he [or she] has gained by presiding over the trial." Dolson v. Anastasia, 55 N.J. 2, 6 (1969). "[T]he question is whether the result strikes the judicial mind as a miscarriage of justice." Ibid. (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 459 (1962)). Fermin asserts the court should have granted the motion for a new trial because 1 The Model Jury Charge for conspiracy, N.J.S.A. 2C:5-2, directs the judge to "IF NOT PREVIOUSLY STATED GIVE MODEL CHARGE FOR THE UNDERLYING OFFENSE." Model Jury Charges (Criminal), "Conspiracy" (revised April 12, 2010). 25 A-4031-15T1 it was a "manifest denial of justice" to allow the jury to "consider a first-degree crime despite the co-mingling of substances." The judge observed the issue of whether the State proved the CDS was five ounces or more was "very hotly contested," including during pretrial and the application for a judgment of acquittal at the end of the State's case. In denying defendants' motion for a new trial, the judge said: The jury had the ability to consider the testimony and the cross examination of both Detective Lantigua and the State's chemist. . . . In this [c]ourt's view the jury had ample opportunity to pass on a credibility of these two witnesses. . . . This [c]ourt is not clearly convinced that there was a manifest denial of justice, so under the law in terms of the jury's decision as to this issue. The jury had the opportunity to consider and weigh the testimony of Lantigua and Marino with reference to the quantity of drugs and other materials seized in the garage. The jury observed the thorough cross-examination of the State's witnesses by three defense attorneys. Thus, contrary to Fermin's assertion, no injustice resulted from the judge's denial of a motion for a new trial. 26 A-4031-15T1 X. Issues raised at trial are reviewed under the harmless error standard. R. 2:10-2. An alleged error brought to the trial court's attention will not be reversed unless it is "clearly capable of producing an unjust result." Ibid. Where constitutional rights are implicated, the reviewing court must consider whether the State has "proved beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Scherzer, 301 N.J. Super. at 454 (citation omitted) (quoting Chapman v. Cal., 386 U.S. 18, 24 (1967)). A new trial is required where cumulative error is not harmless. State v. Weaver, 219 N.J. 131, 162 (2014). In considering whether a defendant received a fair trial, a reviewing court must remember, "no trial can ever be entirely free of even the smallest defect. Our goal, nonetheless, must always be fairness. A defendant is entitled to a fair trial but not a perfect one." Wakefield, 190 N.J. at 537 (quoting State v. R.B., 183 N.J. 308, 333-34, (2005)). We disagree with Fermin that cumulative errors warrant a new trial. No errors were committed by the trial judge. Defendants were accorded a fair trial. 27 A-4031-15T1 XI. Fermin now argues for the first time on appeal Lantigua's mishandling of the cocaine constituted such "outrageous" conduct as to be the equivalent of due process entrapment. This issue was not raised below. Due process entrapment is an affirmative defense which must be proved by a preponderance of the evidence. State v. Florez, 134 N.J. 570, 583 (1994) (citing State v. Gibbons, 105 N.J. 67 (1987); State v. Medina, 201 N.J. Super. 565 (App. Div. 1985)). This point is so lacking in merit as to not warrant further discussion in a written opinion. R. 2:11-3(e)(2). Fermin also argues the officer's undisputed act of emptying a paper towel that had a "dusting of white powder" into a bag with drugs was such outrageous conduct it warranted a sanction. The argument that the undisputed violation of protocols regarding the processing of evidence violated due process also lacks merit. The point does not warrant further discussion in a written opinion. R. 2:11-3(e)(2). Affirmed. 28 A-4031-15T1
AMIR SHAKED v. BOARD OF ADJUSTMENT OF THE TOWNSHIP OF NORTH BERGEN
Date: May 23, 2018
Docket Number: a4634-15
Date: May 23, 2018
Docket Number: a4634-15
POSITIVE HEALTH CARE, INC v. CITY OF NEWARK
Date: May 22, 2018
Docket Number: a2689-15 PER CURIAM In A-2689-15, Positive Health Care, Inc., (PHCI) appeals from a January 27, 2016 order of the Tax Court, denying PHCI's motion to amend its complaint concerning the City of Newark's tax assessments on its properties, to include the years 2010, 2012, 2013, and 2014. In A-0535-16, PHCI appeals from an October 5, 2016 final judgment of foreclosure in favor of the City of Newark. We consolidated the appeals for purposes of this opinion. For the reasons set forth below, we affirm the January 27, 2016 Tax Court order. We affirm the October 5, 2016 foreclosure judgment, but we remand for the limited purpose of amending the judgment to preserve any interest held by the federal government. I The appeals concern residential properties owned by PHCI, a nonprofit entity whose mission is to provide housing for homeless 2 A-2689-15T3 persons suffering from AIDS or HIV infection. Using private loans and matching grant money provided by the federal Department of Housing and Urban Development (HUD), PHCI purchased twelve properties in Newark to house its needy clients. As a condition of funding, HUD required "the inclusion of a restrictive covenant in the deeds mandating" that the properties be used to house persons with HIV/AIDS and their families for twenty years, pursuant to the McKinney-Vento Homeless Assistance Act of 1987, 42 U.S.C. § 11383.1 See Positive Health Care, Inc. v. City of Newark, 29 N.J. Tax at 216. The language of the covenant reads as follows: This conveyance is made subject to the following restrictions for the use of the property hereby conveyed: Grantee, grantee's heirs, successors or assigns, shall operate the property in accordance with sections 423(b)(1) and (b)(3) of the McKinney Act []42 [U.S.C.A.] 11383(b)(1) and 11383 (b)(3). This restriction shall remain in full force and effect and shall run with the title to the property conveyed for a period of twenty (20) years from the date of this deed. Between 2003 and 2013, the City of Newark, through its Department of Child and Family Well-Being and its Office of Partnerships and Grants Management, awarded PHCI multiple grants, 1 As discussed later in this opinion, the record does not reflect that any party in either case has given HUD formal notice of the litigation. Nor was HUD named as a defendant in the foreclosure cases, although it has an interest in the properties that may affect the title. 3 A-2689-15T3 using money from HUD's Housing for Persons with HIV/AIDS (HOPWA) program. Meanwhile, in 2010 PHCI applied for tax-exempt status for its twelve properties. However, the Newark Tax Department denied the application, even though – as the City now candidly admits – PHCI is a nonprofit entity, its properties would qualify for tax exempt status, and the organization was performing a valuable public service for the City's homeless poor.2 PHCI appealed to the Essex County Tax Board, which dismissed the appeals without prejudice, for reasons not explained on this record.3 PHCI filed an appeal with the Tax Court for the 2010 tax year. For reasons not explained on this record, the 2010 appeal was not adjudicated for several years. On October 20, 2014, PHCI amended its case information statements to delete the 2010 tax year and add the 2011 tax year. In the meantime, PHCI did not apply for tax exemptions, file tax appeals, or pay property taxes for tax years 2012, 2013, and 2014. At some point in 2014, Newark executed multiple tax sales on PHCI's properties, and stopped providing PHCI with funding. 2 The Tax Court's opinion notes that Newark probably denied the tax exemption for 2010 based on a Tax Court opinion that was later reversed on appeal. See Advance Hous., Inc. v. Twp. of Teaneck, 215 N.J. 549, 553-54 (2013). 3 The history recited in this paragraph is drawn from the Tax Court's opinion. 4 A-2689-15T3 In February 2015, PHCI filed a motion for summary judgment on the issue of its entitlement to a tax exemption for its properties. According to its May 8, 2015 order, the motion was unopposed, but the Tax Court denied the motion on the grounds that there were material facts in dispute. On May 11, 2015, the Tax Court entered a case management order, noting the parties had advised that the dispute was settled pending approval by the Newark City Council. The settlement involved the City's agreement that the properties qualified for property tax exemptions.4 While the parties were working out the settlement, PHCI filed a motion seeking to re-amend its pleading, to once again appeal as to the 2010 tax year, as well as the tax years 2012, 2013, 2014, and 2015. Ultimately, the City only signed a settlement agreeing to a tax exemption for 2011. However, according to the Tax Court's opinion, the City "also represented to the court and to PHCI that the properties would be exempt for 4 As the Tax Court judge observed at oral argument, pursuant to N.J.S.A. 54:4-3.6c, Newark had authority to retroactively grant a tax exemption to a charitable organization despite the organization's failure to file a timely tax appeal. The Tax Court judge also noted that in foreclosing on property purchased and operated with federal grant money, Newark was obtaining a windfall at the expense of federal taxpayers. 5 A-2689-15T3 tax year 2015."5 29 N.J. Tax at 218. According to the Tax Court opinion: "The parties also agreed to permit the motions to amend the complaints to proceed." Id. at 218. However, the Tax Court denied the motion to amend, by order dated January 27, 2016, reasoning that the amendment would be futile, because PHCI failed to file timely tax appeals for the years covered by the amendment. Id. at 224. The Tax Court also found that there was "no evidence of unfair dealing or misrepresentation by the City of Newark." Id. at 223. Meanwhile, as the result of PHCI's failure to pay the 2010 property taxes that were the subject of its tax appeal, the City pursued a tax sale foreclosure on two of PHCI's properties, known as block 2649, lot 9 and block 2649, lot 10.6 In response to our question at oral argument, the City's counsel could offer no assurances that the City will arrange continued housing for PHCI's needy clients once the foreclosure litigation is concluded. 5 According to the Tax Court's opinion, Newark did not honor that representation, leading to foreclosure litigation in the Chancery Division. 6 In other pending foreclosure cases, private investors are seeking to foreclose on other PHCI properties as to which the City sold tax certificates. 6 A-2689-15T3 II In reviewing the orders on appeal in both cases, we defer to a trial court's factual findings so long as they are supported by substantial credible evidence. See Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 483-84 (1974). Our review takes into account the special expertise of the Tax Court. See Dover- Chester Assocs. v. Randolph Twp., 419 N.J. Super. 184, 195 (App. Div. 2011). However, as to both appeals, we review a trial court's legal interpretations de novo. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995); Dover-Chester Assocs., 419 N.J. Super. at 195. In both appeals, PHCI argues that, because it is a nonprofit charitable organization, its properties cannot be taxed. Unfortunately, that argument overlooks the requirement that an entity seeking a tax exemption has the obligation to make a timely application for the exemption, and to file a timely appeal of assessments on its property if it claims the assessments are improper. See F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J. 418, 425 (1985). Although, as discussed below, PHCI claims a right to equitable relief, PHCI does not claim it made timely filings. PHCI's reliance on Advance Housing v. Township of Teaneck, 215 N.J. 549 (2013) is misplaced. In that case, the 7 A-2689-15T3 plaintiff filed a timely tax appeal, and the issue was whether its properties were tax exempt. The case is not on point here. In a brief discussion in both appeals, PHCI asserts that taxation of its property is barred by the square corners doctrine. Under the square corners doctrine, there is precedent for extending the deadline to file a tax appeal, where the taxing authority led the taxpayer to believe that the City was willing to work with the taxpayer "in a fair, informal and reasonable manner" to settle the exemption issue, and then abruptly changed course after lulling the taxpayer into withholding filing a tax appeal. See New Concepts for Living, Inc. v. City of Hackensack, 376 N.J. Super. 394, 403-04 (App. Div. 2005). The square corners claim was not raised in the Tax Court, and PHCI did not submit any legally competent evidence pertinent to a claim under the square corners doctrine. Indeed, PHCI provided no certification from anyone with personal knowledge, explaining why PHCI did not file timely tax appeals. In its opinion, the Tax Court found no evidence that Newark engaged in any unfair dealing or misrepresentation. 29 N.J. Tax at 223. On this record, we 8 A-2689-15T3 find no basis to disturb that factual finding.7 PHCI also contends that because it bought the properties using HUD funds, it operates its programs using HUD grants, and its programs serve important federal housing policies, the Supremacy Clause barred Newark from assessing taxes on PHCI's property. For the same reasons, PHCI argues that the Supremacy Clause barred Newark from conducting a tax sale foreclosure on the properties. PHCI's brief does not cite any cases specifically supporting those legal arguments, nor does it cite to any provisions of the McKinley-Vento Act that provide for preemption. In essence, PHCI asserts that Newark's conduct in both these cases constitutes bad public policy. We might be inclined to agree, but PHCI's policy argument does not equate to a constitutional preemption claim. The pertinent principles may be summarized as follows: [W]hile the Supremacy Clause exempts property of the United States from state and local taxation, there is no exemption from taxation for real property in which the United States holds only a lien interest. State and local governments have historically been able to tax such property, subject only to the requirement that enforcement to collect the taxes could not destroy the federal lien. 7 In the foreclosure appeal, PHCI's brief relied on an affidavit which, upon our inquiry, PHCI withdrew from its appendix because it was never filed with any court and was not part of the appellate record. 9 A-2689-15T3 [Casino Reinvestment Dev. Auth. v. Cohen, 321 N.J. Super. 297, 306 (Law Div. 1998).] Property owned by the United States government is not subject to state or local taxation, absent federal consent. S.R.A., Inc. v. Minnesota, 327 U.S. 558, 561 (1946). However, "the interest of private parties in such property may be taxed." Todd Shipyards Corp. v. Twp. of Weehawken, 45 N.J. 336, 340 (1965). For taxation purposes, the Supreme Court of the United States has long recognized the distinction between federally-owned property and private property subject to a federal lien. In New Brunswick v. United States, 276 U.S. 547, 555 (1928), the Court acknowledged that federal property was not subject to state taxation. However, the Court held that where the federal government had sold property to private individuals, taking back a mortgage to secure the unpaid balance of the purchase price, the property was not exempt and the City of New Brunswick could assess real estate taxes on it. Id. at 555-56. The Court further held that the City could foreclose on the private owner's interest, but could not wipe out the federal lien by means of a tax foreclosure: [T]he City is without authority to enforce the collection of the taxes thus assessed against the purchasers by a sale of the interest in the lots which was retained and held by the [federal government] as security for the payment of the unpaid purchase money, whether as an incident to the retention of the legal 10 A-2689-15T3 title or as a reserved lien or as a contract right to mortgages. That interest, being held by the [federal government] for the benefit of the United States, is paramount to the taxing power of the State and cannot be subjected by the City to sale for taxes. [Id. at 556.] Accordingly, the Court held that any foreclosure suit must exempt the federal lien interest: We conclude that, although the City should not be enjoined from collecting the taxes assessed to the purchasers by sales of their interests in the lots, . . . it should be enjoined from selling the lots for the collection of such taxes unless all rights, liens and interests in the lots, retained and held by the [federal government] as security for the unpaid purchase moneys, are expressly excluded from such sales, and they are made, by express terms, subject to all such prior rights, liens and interests. This, we think, will meet the equities of the case as between the [federal government] and the City, and fully protect the paramount right of the United States. [Ibid.] The Court recognized the same principle in S.R.A., stating: "The possibility of repossession by the United States is not enough to block a tax sale in which the paramount rights of the United States are protected." 327 U.S. at 566. Thus, the Supremacy Clause does not bar the City of Newark from taxing PHCI's property, or from foreclosing on PHCI's ownership interest in the properties. However, it does bar the 11 A-2689-15T3 City (or any private holder of a tax sale certificate) from foreclosing on any lien or other legal interest that HUD holds under the McKinley-Vento Act. As a result, even after title passes through foreclosure, Newark may be precluded by federal law from evicting the existing tenants, or from precluding PHCI from providing those tenants with services as required by HUD. Of course, the issue of preserving HUD's interest is not directly before us here. But, to ensure that Newark does not circumvent any obligations to HUD, we require that, within fourteen days of the date of this opinion, the City of Newark must serve HUD with a copy of this opinion and with written notice of all of the tax foreclosure actions pending against PHCI's properties located in Newark. We also remand the foreclosure case to the trial court for the limited purpose of amending the foreclosure judgment to specify that any legal interest that may be held by HUD in the property is excepted from the foreclosure. See New Brunswick, 276 U.S. at 556. In PHCI's appeal from the October 5, 2016 final foreclosure judgment, we agree with the General Equity judge that the Tax Court decision collaterally estopped PHCI from re-litigating, in the foreclosure action, the issues that were litigated and decided in the Tax Court. See Allen v. V & A Bros., Inc., 208 N.J. 114, 138 (2011). Thus, PHCI was barred from re-litigating its 12 A-2689-15T3 entitlement to a tax exemption, on the various legal theories considered and rejected by the Tax Court. PHCI's equitable estoppel argument, raised for the first time on appeal from the foreclosure judgment, is not supported by record evidence and is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm the January 27, 2016 order entered by the Tax Court. We also affirm the October 5, 2016 final foreclosure judgment entered by the Chancery Division, except that we remand for the limited purpose of issuing an amended judgment containing the language set forth above. The stay of further proceedings in the pending foreclosure cases involving PHCI, which we entered by order dated June 2, 2017, is hereby vacated.8 Affirmed. 8 By order dated September 5, 2017, we granted a motion filed by Madison Trust Co., as collateral assignee of Stonefield Investment Fund IV, LLC, to intervene in A-2689-15, for the limited purpose of moving for relief from the stay. We denied the stay, and the issue is now moot by virtue of this opinion. 13 A-2689-15T3
Date: May 22, 2018
Docket Number: a2689-15 PER CURIAM In A-2689-15, Positive Health Care, Inc., (PHCI) appeals from a January 27, 2016 order of the Tax Court, denying PHCI's motion to amend its complaint concerning the City of Newark's tax assessments on its properties, to include the years 2010, 2012, 2013, and 2014. In A-0535-16, PHCI appeals from an October 5, 2016 final judgment of foreclosure in favor of the City of Newark. We consolidated the appeals for purposes of this opinion. For the reasons set forth below, we affirm the January 27, 2016 Tax Court order. We affirm the October 5, 2016 foreclosure judgment, but we remand for the limited purpose of amending the judgment to preserve any interest held by the federal government. I The appeals concern residential properties owned by PHCI, a nonprofit entity whose mission is to provide housing for homeless 2 A-2689-15T3 persons suffering from AIDS or HIV infection. Using private loans and matching grant money provided by the federal Department of Housing and Urban Development (HUD), PHCI purchased twelve properties in Newark to house its needy clients. As a condition of funding, HUD required "the inclusion of a restrictive covenant in the deeds mandating" that the properties be used to house persons with HIV/AIDS and their families for twenty years, pursuant to the McKinney-Vento Homeless Assistance Act of 1987, 42 U.S.C. § 11383.1 See Positive Health Care, Inc. v. City of Newark, 29 N.J. Tax at 216. The language of the covenant reads as follows: This conveyance is made subject to the following restrictions for the use of the property hereby conveyed: Grantee, grantee's heirs, successors or assigns, shall operate the property in accordance with sections 423(b)(1) and (b)(3) of the McKinney Act []42 [U.S.C.A.] 11383(b)(1) and 11383 (b)(3). This restriction shall remain in full force and effect and shall run with the title to the property conveyed for a period of twenty (20) years from the date of this deed. Between 2003 and 2013, the City of Newark, through its Department of Child and Family Well-Being and its Office of Partnerships and Grants Management, awarded PHCI multiple grants, 1 As discussed later in this opinion, the record does not reflect that any party in either case has given HUD formal notice of the litigation. Nor was HUD named as a defendant in the foreclosure cases, although it has an interest in the properties that may affect the title. 3 A-2689-15T3 using money from HUD's Housing for Persons with HIV/AIDS (HOPWA) program. Meanwhile, in 2010 PHCI applied for tax-exempt status for its twelve properties. However, the Newark Tax Department denied the application, even though – as the City now candidly admits – PHCI is a nonprofit entity, its properties would qualify for tax exempt status, and the organization was performing a valuable public service for the City's homeless poor.2 PHCI appealed to the Essex County Tax Board, which dismissed the appeals without prejudice, for reasons not explained on this record.3 PHCI filed an appeal with the Tax Court for the 2010 tax year. For reasons not explained on this record, the 2010 appeal was not adjudicated for several years. On October 20, 2014, PHCI amended its case information statements to delete the 2010 tax year and add the 2011 tax year. In the meantime, PHCI did not apply for tax exemptions, file tax appeals, or pay property taxes for tax years 2012, 2013, and 2014. At some point in 2014, Newark executed multiple tax sales on PHCI's properties, and stopped providing PHCI with funding. 2 The Tax Court's opinion notes that Newark probably denied the tax exemption for 2010 based on a Tax Court opinion that was later reversed on appeal. See Advance Hous., Inc. v. Twp. of Teaneck, 215 N.J. 549, 553-54 (2013). 3 The history recited in this paragraph is drawn from the Tax Court's opinion. 4 A-2689-15T3 In February 2015, PHCI filed a motion for summary judgment on the issue of its entitlement to a tax exemption for its properties. According to its May 8, 2015 order, the motion was unopposed, but the Tax Court denied the motion on the grounds that there were material facts in dispute. On May 11, 2015, the Tax Court entered a case management order, noting the parties had advised that the dispute was settled pending approval by the Newark City Council. The settlement involved the City's agreement that the properties qualified for property tax exemptions.4 While the parties were working out the settlement, PHCI filed a motion seeking to re-amend its pleading, to once again appeal as to the 2010 tax year, as well as the tax years 2012, 2013, 2014, and 2015. Ultimately, the City only signed a settlement agreeing to a tax exemption for 2011. However, according to the Tax Court's opinion, the City "also represented to the court and to PHCI that the properties would be exempt for 4 As the Tax Court judge observed at oral argument, pursuant to N.J.S.A. 54:4-3.6c, Newark had authority to retroactively grant a tax exemption to a charitable organization despite the organization's failure to file a timely tax appeal. The Tax Court judge also noted that in foreclosing on property purchased and operated with federal grant money, Newark was obtaining a windfall at the expense of federal taxpayers. 5 A-2689-15T3 tax year 2015."5 29 N.J. Tax at 218. According to the Tax Court opinion: "The parties also agreed to permit the motions to amend the complaints to proceed." Id. at 218. However, the Tax Court denied the motion to amend, by order dated January 27, 2016, reasoning that the amendment would be futile, because PHCI failed to file timely tax appeals for the years covered by the amendment. Id. at 224. The Tax Court also found that there was "no evidence of unfair dealing or misrepresentation by the City of Newark." Id. at 223. Meanwhile, as the result of PHCI's failure to pay the 2010 property taxes that were the subject of its tax appeal, the City pursued a tax sale foreclosure on two of PHCI's properties, known as block 2649, lot 9 and block 2649, lot 10.6 In response to our question at oral argument, the City's counsel could offer no assurances that the City will arrange continued housing for PHCI's needy clients once the foreclosure litigation is concluded. 5 According to the Tax Court's opinion, Newark did not honor that representation, leading to foreclosure litigation in the Chancery Division. 6 In other pending foreclosure cases, private investors are seeking to foreclose on other PHCI properties as to which the City sold tax certificates. 6 A-2689-15T3 II In reviewing the orders on appeal in both cases, we defer to a trial court's factual findings so long as they are supported by substantial credible evidence. See Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 483-84 (1974). Our review takes into account the special expertise of the Tax Court. See Dover- Chester Assocs. v. Randolph Twp., 419 N.J. Super. 184, 195 (App. Div. 2011). However, as to both appeals, we review a trial court's legal interpretations de novo. Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995); Dover-Chester Assocs., 419 N.J. Super. at 195. In both appeals, PHCI argues that, because it is a nonprofit charitable organization, its properties cannot be taxed. Unfortunately, that argument overlooks the requirement that an entity seeking a tax exemption has the obligation to make a timely application for the exemption, and to file a timely appeal of assessments on its property if it claims the assessments are improper. See F.M.C. Stores Co. v. Borough of Morris Plains, 100 N.J. 418, 425 (1985). Although, as discussed below, PHCI claims a right to equitable relief, PHCI does not claim it made timely filings. PHCI's reliance on Advance Housing v. Township of Teaneck, 215 N.J. 549 (2013) is misplaced. In that case, the 7 A-2689-15T3 plaintiff filed a timely tax appeal, and the issue was whether its properties were tax exempt. The case is not on point here. In a brief discussion in both appeals, PHCI asserts that taxation of its property is barred by the square corners doctrine. Under the square corners doctrine, there is precedent for extending the deadline to file a tax appeal, where the taxing authority led the taxpayer to believe that the City was willing to work with the taxpayer "in a fair, informal and reasonable manner" to settle the exemption issue, and then abruptly changed course after lulling the taxpayer into withholding filing a tax appeal. See New Concepts for Living, Inc. v. City of Hackensack, 376 N.J. Super. 394, 403-04 (App. Div. 2005). The square corners claim was not raised in the Tax Court, and PHCI did not submit any legally competent evidence pertinent to a claim under the square corners doctrine. Indeed, PHCI provided no certification from anyone with personal knowledge, explaining why PHCI did not file timely tax appeals. In its opinion, the Tax Court found no evidence that Newark engaged in any unfair dealing or misrepresentation. 29 N.J. Tax at 223. On this record, we 8 A-2689-15T3 find no basis to disturb that factual finding.7 PHCI also contends that because it bought the properties using HUD funds, it operates its programs using HUD grants, and its programs serve important federal housing policies, the Supremacy Clause barred Newark from assessing taxes on PHCI's property. For the same reasons, PHCI argues that the Supremacy Clause barred Newark from conducting a tax sale foreclosure on the properties. PHCI's brief does not cite any cases specifically supporting those legal arguments, nor does it cite to any provisions of the McKinley-Vento Act that provide for preemption. In essence, PHCI asserts that Newark's conduct in both these cases constitutes bad public policy. We might be inclined to agree, but PHCI's policy argument does not equate to a constitutional preemption claim. The pertinent principles may be summarized as follows: [W]hile the Supremacy Clause exempts property of the United States from state and local taxation, there is no exemption from taxation for real property in which the United States holds only a lien interest. State and local governments have historically been able to tax such property, subject only to the requirement that enforcement to collect the taxes could not destroy the federal lien. 7 In the foreclosure appeal, PHCI's brief relied on an affidavit which, upon our inquiry, PHCI withdrew from its appendix because it was never filed with any court and was not part of the appellate record. 9 A-2689-15T3 [Casino Reinvestment Dev. Auth. v. Cohen, 321 N.J. Super. 297, 306 (Law Div. 1998).] Property owned by the United States government is not subject to state or local taxation, absent federal consent. S.R.A., Inc. v. Minnesota, 327 U.S. 558, 561 (1946). However, "the interest of private parties in such property may be taxed." Todd Shipyards Corp. v. Twp. of Weehawken, 45 N.J. 336, 340 (1965). For taxation purposes, the Supreme Court of the United States has long recognized the distinction between federally-owned property and private property subject to a federal lien. In New Brunswick v. United States, 276 U.S. 547, 555 (1928), the Court acknowledged that federal property was not subject to state taxation. However, the Court held that where the federal government had sold property to private individuals, taking back a mortgage to secure the unpaid balance of the purchase price, the property was not exempt and the City of New Brunswick could assess real estate taxes on it. Id. at 555-56. The Court further held that the City could foreclose on the private owner's interest, but could not wipe out the federal lien by means of a tax foreclosure: [T]he City is without authority to enforce the collection of the taxes thus assessed against the purchasers by a sale of the interest in the lots which was retained and held by the [federal government] as security for the payment of the unpaid purchase money, whether as an incident to the retention of the legal 10 A-2689-15T3 title or as a reserved lien or as a contract right to mortgages. That interest, being held by the [federal government] for the benefit of the United States, is paramount to the taxing power of the State and cannot be subjected by the City to sale for taxes. [Id. at 556.] Accordingly, the Court held that any foreclosure suit must exempt the federal lien interest: We conclude that, although the City should not be enjoined from collecting the taxes assessed to the purchasers by sales of their interests in the lots, . . . it should be enjoined from selling the lots for the collection of such taxes unless all rights, liens and interests in the lots, retained and held by the [federal government] as security for the unpaid purchase moneys, are expressly excluded from such sales, and they are made, by express terms, subject to all such prior rights, liens and interests. This, we think, will meet the equities of the case as between the [federal government] and the City, and fully protect the paramount right of the United States. [Ibid.] The Court recognized the same principle in S.R.A., stating: "The possibility of repossession by the United States is not enough to block a tax sale in which the paramount rights of the United States are protected." 327 U.S. at 566. Thus, the Supremacy Clause does not bar the City of Newark from taxing PHCI's property, or from foreclosing on PHCI's ownership interest in the properties. However, it does bar the 11 A-2689-15T3 City (or any private holder of a tax sale certificate) from foreclosing on any lien or other legal interest that HUD holds under the McKinley-Vento Act. As a result, even after title passes through foreclosure, Newark may be precluded by federal law from evicting the existing tenants, or from precluding PHCI from providing those tenants with services as required by HUD. Of course, the issue of preserving HUD's interest is not directly before us here. But, to ensure that Newark does not circumvent any obligations to HUD, we require that, within fourteen days of the date of this opinion, the City of Newark must serve HUD with a copy of this opinion and with written notice of all of the tax foreclosure actions pending against PHCI's properties located in Newark. We also remand the foreclosure case to the trial court for the limited purpose of amending the foreclosure judgment to specify that any legal interest that may be held by HUD in the property is excepted from the foreclosure. See New Brunswick, 276 U.S. at 556. In PHCI's appeal from the October 5, 2016 final foreclosure judgment, we agree with the General Equity judge that the Tax Court decision collaterally estopped PHCI from re-litigating, in the foreclosure action, the issues that were litigated and decided in the Tax Court. See Allen v. V & A Bros., Inc., 208 N.J. 114, 138 (2011). Thus, PHCI was barred from re-litigating its 12 A-2689-15T3 entitlement to a tax exemption, on the various legal theories considered and rejected by the Tax Court. PHCI's equitable estoppel argument, raised for the first time on appeal from the foreclosure judgment, is not supported by record evidence and is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm the January 27, 2016 order entered by the Tax Court. We also affirm the October 5, 2016 final foreclosure judgment entered by the Chancery Division, except that we remand for the limited purpose of issuing an amended judgment containing the language set forth above. The stay of further proceedings in the pending foreclosure cases involving PHCI, which we entered by order dated June 2, 2017, is hereby vacated.8 Affirmed. 8 By order dated September 5, 2017, we granted a motion filed by Madison Trust Co., as collateral assignee of Stonefield Investment Fund IV, LLC, to intervene in A-2689-15, for the limited purpose of moving for relief from the stay. We denied the stay, and the issue is now moot by virtue of this opinion. 13 A-2689-15T3
U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE FOR SG MORTGAGE SECURITIES ASSET BACKED CERTIFICATES, SERIES 2006-FRE2 v. LORI LEFF
Date: May 22, 2018
Docket Number: a3406-16
Date: May 22, 2018
Docket Number: a3406-16
CITADEL FEDERAL CREDIT UNION v. NEW JERSEY MOTOR VEHICLE COMMISSION
Date: May 21, 2018
Docket Number: a4655-16
Date: May 21, 2018
Docket Number: a4655-16
JANET D'AUTRECHY SUMMERS v. SCO, SILVER CARE OPERATIONS LLC
Date: May 21, 2018
Docket Number: a5168-15
Date: May 21, 2018
Docket Number: a5168-15
JONATHAN DAYAN v. CEDAR GREENS CONDOMINIUM ASSOCIATION, INC.
Date: May 18, 2018
Docket Number: a0691-15
Date: May 18, 2018
Docket Number: a0691-15
KRAFT FOODS GLOBAL, INC v. DIRECTOR, DIVISION OF TAXATION
Date: May 17, 2018
Docket Number: a1157-16
Date: May 17, 2018
Docket Number: a1157-16
USROFIII LEGAL TITLE TRUST 2015-1, by U.S. BANK NATIONAL ASSOCIATION, as legal Title Trustee v. LINDA MEHNERT
Date: May 16, 2018
Docket Number: a1233-16
Date: May 16, 2018
Docket Number: a1233-16
G.C. v. DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES
Date: May 16, 2018
Docket Number: a1700-15
Date: May 16, 2018
Docket Number: a1700-15
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION v. GRACE FOSTER
Date: May 16, 2018
Docket Number: a2569-16
Date: May 16, 2018
Docket Number: a2569-16
CHARLES GAMBATESE v. BOARD OF TRUSTEES, PUBLIC EMPLOYEES' RETIREMENT SYSTEM
Date: May 15, 2018
Docket Number: a0879-16
Date: May 15, 2018
Docket Number: a0879-16
JEFFREY SCOZZAFAVA v. SOMERSET COUNTY PROSECUTOR'S OFFICE
Date: May 14, 2018
Docket Number: a2228-16
Date: May 14, 2018
Docket Number: a2228-16
THE HUNTERDON DISTRICT SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, INC v. NEW JERSEY SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS
Date: May 14, 2018
Docket Number: a2797-16
Date: May 14, 2018
Docket Number: a2797-16
THRIFT INVESTMENT CORPORATION v. ROUTE 88 AUTO SALES, LLC
Date: May 14, 2018
Docket Number: a2959-16
Date: May 14, 2018
Docket Number: a2959-16
V.S. v. DEPARTMENT OF HUMAN SERVICES DIVISION OF MEDICAL ASSISTANCE AND HEALTH SERVICES
Date: May 14, 2018
Docket Number: a3452-16
Date: May 14, 2018
Docket Number: a3452-16
IN THE MATTER OF THE CIVIL COMMITMENT OF C.W.
Date: May 14, 2018
Docket Number: a4227-14 PER CURIAM C.W. has been committed to the Special Treatment Unit (STU) at the Adult Diagnostic and Treatment Center (ADTC) for control, care, and treatment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, since November 2013. In these consolidated appeals, C.W. appeals an April 15, 2014 order committing him to the STU. He also appeals an April 9, 2015 order that continued his commitment following a review hearing predicated upon a finding by clear and convincing evidence that he remained a sexually violent predator in need of involuntary commitment. We affirm. I. In March 1990, C.W. pled guilty to burglary, N.J.S.A. 2C:18- 2(a)(1), and sexual assault of a child, N.J.S.A. 2C:14-2(b). He was sentenced to the ADTC for a period of ten years for the sexual assault charge and four years for the burglary charge, to run concurrently. Approximately two years after being released from the ADTC, in July 1997, C.W. was implicated in two separate incidents of burglary and sexual assault of children. In the first incident, C.W. entered a home and sexually assaulted a nine- year-old and an eight-year-old girl. Three days later, C.W. entered another home and sexually assaulted a three-year-old girl. C.W. was arrested and charged for the two incidents shortly thereafter. On April 26, 1999, C.W. was convicted after a jury trial and was sentenced to a state prison term of forty-five years with conditions of community supervision for life and five years parole 2 A-4227-14T5 ineligibility. Mandatory fines and penalties were imposed. C.W. filed a direct appeal of his conviction, arguing the two cases were improperly joined. We agreed and reversed the convictions. State v. [C.W.], No. A-1737-99 (App. Div. Jan. 25, 2002). C.W. was re-tried for the charges relating to the three-year-old girl. The State did not prosecute the incident involving the other two girls. After a jury trial in May 2003, C.W. was convicted of sexual assault of a child less than four-years old, burglary, and endangering the welfare of a child. C.W. was evaluated and determined to be eligible for sentencing to the ADTC. The court sentenced defendant to an extended term of twenty years, with ten years of parole ineligibility on the sexual assault conviction. On the third-degree burglary conviction, the court sentenced defendant to a term of five years to run consecutive to the sentence imposed for the sexual assault, and merged the third- degree endangering the welfare of a child conviction with the sexual assault. The court also imposed the mandatory fines and penalties, advised defendant of his obligations under Megan's Law (N.J.S.A. 2C:7-1 to -23), and directed that the custodial sentence for the sexual assault be served at the ADTC. C.W. filed a direct appeal. We affirmed the conviction but remanded for re-sentencing. State v. [C.W.], No. A-1710-03 (App. 3 A-4227-14T5 Div. June 30, 2006) (slip op. at 6). On December 8, 2006, C.W. was sentenced to an aggregate term of twenty-five years to the ADTC based upon his conviction for second-degree sexual assault of a child, N.J.S.A. 2C:14-2(b); third-degree burglary, N.J.S.A. 2C:18-2; and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). C.W. was confined at the ADTC from December 2003 until August 2011, and was then transferred to South Woods State Prison to serve his sentence for the burglary conviction. The State petitioned to have C.W. civilly committed under the SVPA in November 2013. On November 22, 2013, the court ordered C.W. temporarily committed to the STU pending a final hearing on the matter. II. A commitment hearing was held on April 15, 2014. During the hearing, the State offered the testimony of two expert witnesses. Prior to their testimony, both experts reviewed numerous documents in C.W.'s record, including his prior mental health evaluations and his criminal history. Dr. Pogos Voskanian, a psychiatrist, testified that C.W.'s "pattern of offending and arousal to children [] is deep seeded and is [an] integral part" of him. Dr. Voskanian described his impressions from his interview with C.W., noting that C.W. did not take his first incarceration at the ADTC seriously. Dr. Voskanian 4 A-4227-14T5 opined that "the pathology appears quite complex, because there is an adult type of offending, entering through the window, and there is no grooming, no coercing, no manipulating. . . . And the second component is pedophilic arousal with that." Dr. Voskanian concluded that C.W. suffered from a mental abnormality or personality disorder which predisposed him to sexually reoffend. Dr. Voskanian diagnosed C.W. with pedophilia but did not find any evidence of current psychosis and found C.W. "very engaging, coherent, [and] goal directed." In Dr. Voskanian's opinion, C.W. suffered from antisocial personality disorder due to "a juvenile history of problems with conduct such as fire setting, and contiu[ous] criminal behaviors as an adult." He further opined that the combination of an antisocial personality disorder and a sexual pathology "markedly elevates" the person's risk to sexually reoffend. Dr. Voskanian believed those conditions caused C.W. to have serious difficulty controlling his sexual offending behavior and to remain at high risk to sexually reoffend. Dr. Voskanian also noted C.W.'s history of drug abuse as a factor relative to a risk of reoffending. Dr. Jamie Canataro, a psychologist, also testified. Dr. Canataro's assessments and opinions were consistent with those of Dr. Voskanian. Since C.W. declined to be interviewed by Dr. Canataro despite two opportunities, Dr. Canataro reviewed and 5 A-4227-14T5 relied upon C.W.'s history and current progress at the STU in formulating her opinions. Dr. Canataro opined that C.W. has "behaviorally reinforced this [sexual offending] behavior," which showed "a longer period of the arousal becoming more and more ingrained, more of who [C.W.] is." Dr. Canataro referenced C.W's juvenile history, and sexual and physical abuse as a child. She also noted C.W.'s history of suicidal ideation and attempting suicide. Dr. Canataro scored the Static-99R1 and determined C.W. scored a seven, which indicated "a category of high risk to sexually reoffend." Further, Dr. Canataro opined that although C.W. had support from his father and received his GED while incarcerated, those factors were "not significant enough to reduce his risk below the threshold of highly likely [to reoffend]." C.W. testified that he was dealing with many issues during his initial time at ADTC and was not responsive to treatment. C.W. further testified that he believed he would be "okay" without treatment upon his release. However, he suffered a relapse when a romantic relationship went badly. C.W. described his troubled 1 The Static-99R is a ten item risk assessment instrument used with adult male sexual offenders at least eighteen years of age at the time of release to the community. See Static-99, http://www.static99.org/ (last visited May 2, 2018). 6 A-4227-14T5 family history and his prior criminal actions, and concluded that he would not reoffend if he was released. C.W. presented the testimony of Hawaiian Thompson Epps, an employee of the Office of the Public Defender (OPD). Epps conducted discharge assessments for the OPD of residents and people facing commitment petitions at the STU. Epps was assigned to C.W.'s case and investigated discharge options for C.W. She testified that she spoke to C.W.'s father about C.W. potentially living with him upon his release. Epps stated that C.W. would be provided with social services if he was discharged into the community. At the conclusion of the hearing, the court rendered a decision from the bench. The court found C.W.'s history of treatment at the ADTC for almost twelve years had "little if any effect on his understanding of his offending triggers, and little if any effect upon his empathy for the young victims [whom] he had violated." The court concluded: This [c]ourt is satisfied by clear and convincing evidence and the past record that the resident has been convicted of sexually violent offenses. There is no question about that. That he suffers from a mental abnormality or personality disorder, primarily of pedophilia, which we know does not remit by time, but only by gaining an understanding of how you can avoid circumstances where you expose yourself to that kind of risk. 7 A-4227-14T5 These are the sort of uncontrolled acts of . . . random behavior, crawling through windows, sneaking into homes at night. They're aggravated burglaries and sexual offenses. The PCL-R[2] which . . . we have evidence of it having been done, places him in the psychotic range, at least by the testimony of Dr. Canataro. The – the Static-99 places him at [seven], which is high risk. So, all the objective or semi-objective testing indicates that this resident is a high risk to reoffend. And based on those analys[e]s and those mental abnormalities and personality disorders, there's clear and convincing evidence that [C.W.] is highly likely to engage in further acts of sexual violence if not confined in a secure facility, that is the STU, for control, care, and primarily for treatment for his improvement and ability to again join civilian life after he's had . . . no treatment which has been meaningful to him. Premised upon the holding, the court ordered C.W. committed to the STU with a review to be scheduled in one year. III. At the April 1, 2015 review hearing, the State offered two expert witnesses, Dr. John Zincone, a psychiatrist, and Dr. Canataro. Dr. Zincone opined that C.W.'s criminal history of release and re-offense raised a number of concerns, including C.W.'s 2 The Hare Psychopathy Checklist-Revised (PCL-R) is a diagnostic tool used to rate a person's psychopathic or antisocial tendencies. 8 A-4227-14T5 inability to control his sexual impulses. Dr. Zincone reviewed C.W.'s history as well as his treatment notes at the STU. In regard to C.W.'s treatment progress, Dr. Zincone opined: [H]e's doing fair. He’s had some problems in group in terms of exploring his arousal, being open about his crimes. Although he’s had several years of treatment at ADTC, his treatment team places him in the beginning stages. He certainly needs to work on exploring his – his arousal to prepubescent females. He needs to be open to feedback from others. And he needs to begin to place his – his own sexual offender dynamics into an assault cycle. Based upon his interview of C.W., Dr. Zincone rated him at an eight on the Static-99R, which placed C.W. in the high risk to reoffend category. Dr. Zincone diagnosed C.W. with pedophilic disorder, stimulant use disorder, and antisocial personality disorder. These conditions were chronic, and the treatment C.W. received was insufficient to control the impulses caused by the disorders. Dr. Canataro testified regarding her annual evaluation of C.W. and her report. Dr. Canataro stated that C.W. was recommended to advance to Phase 2 of treatment by the Treatment Progress Review Committee (TPRC) panel. Although C.W. was attending group sessions, Dr. Canataro opined that, "he struggles with relating these concepts to his own offending dynamic, sexual deviance or assault cycle and he continues to utilize many cognitive 9 A-4227-14T5 distortions." Dr. Canataro further noted that C.W. was not yet beneath the threshold of highly likely to reoffend. C.W. testified regarding his treatment at the ADTC and his prior inability to respond to that treatment. He stated that while his deviant arousal was "always there" it was not active in his life. C.W. acknowledged that he needed treatment but could receive treatment outside of confinement. At the conclusion of the hearing, the court issued a decision from the bench holding that the State proved by clear and convincing evidence that C.W. continued to suffer from a mental abnormality and was highly likely to reoffend. The court set a review date for March 18, 2016. C.W. appealed from both the April 15, 2014 order and the April 9, 2015 order. The appeals were consolidated. On appeal, C.W. raises the following points: POINT I THE COMMITMENT COURT RELIED SOLELY ON THE EXPERT TESTIMONY AND FAILED TO INDEPENDENTLY REVIEW THE EVIDENCE TO DETERMINE WHETHER COMMITMENT WAS APPROPRIATE. POINT II THERE WAS NO COMPETENT EVIDENCE AT EITHER HEARING TO SUPPORT THE FINDING RELIED ON BY EACH JUDGE THAT C.L.W. HAD A HIGH LEVEL OF PSYCHOPATHY. 10 A-4227-14T5 Having considered these arguments in light of our standard of review and the record from both hearings, we conclude that these arguments lack sufficient merit to warrant extended discussion in a written opinion. Rule 2:11-3(e)(1)(E). We add only the following. The standard governing our review of the trial court's commitment decision is well settled. We must give the trial court's decision the utmost deference; the court's decision should only be modified where the record reveals a clear abuse of discretion. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div. 2003). "The appropriate inquiry is to canvas . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing State v. Fields, 77 N.J. 282, 311 (1978)). Notwithstanding our deference, we "must consider the adequacy of the evidence." In re Commitment of M.M., 384 N.J. Super. 313, 334 (App. Div. 2006) (citing D.C., 146 N.J. at 58-59). "[W]e have not hesitated to reverse involuntary commitments when the record failed to contain clear and convincing evidence of 'a substantial risk of dangerous conduct within the reasonably foreseeable future.'" In re Commitment of T.J., 401 N.J. Super. 111, 119 (App. Div. 2008) (quoting In re S.L., 94 N.J. 128, 138 (1983)). 11 A-4227-14T5 As a general matter, a trial judge in an SVPA commitment hearing may consider hearsay in order to assess the credibility of expert testimony, if the expert has based his opinion on such evidence and the evidence is "of a type reasonably relied upon by experts in the particular field." N.J.R.E. 703; In re Civil Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004). An expert is permitted to rely upon hearsay information in forming an opinion with respect to an individual's mental condition. In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div. 2003). The judge may not consider such hearsay statements as substantive evidence unless the statements come within an exception to the hearsay rule. In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 56 (App. Div. 2004); A.X.D., 370 N.J. Super. at 202. We are satisfied from our review of the record that the judges adhered to these principles in rendering their decisions in this case. The pertinent query is whether "the opinion ultimately rendered . . . is that of the witness based on his or her own evaluation of the committee, prior offenses, and objective test data." In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 492 (App. Div. 2005). Here, neither Dr. Voskanian, Dr. Canataro, nor Dr. Zincone "simply agree[d] with the opinions of other, non- testifying examiners." Id. at 489. Rather, each formed his or 12 A-4227-14T5 her opinions based on an assessment of C.W.'s prior history and psychological and psychiatric deficiencies. Here, we are satisfied that the record amply supports both the court's initial determination to commit C.W. and the court's determination to continue his commitment after the review hearing. Both determinations were premised upon sufficient competent evidence that satisfied the burden of persuasion. Affirmed. 13 A-4227-14T5
Date: May 14, 2018
Docket Number: a4227-14 PER CURIAM C.W. has been committed to the Special Treatment Unit (STU) at the Adult Diagnostic and Treatment Center (ADTC) for control, care, and treatment pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, since November 2013. In these consolidated appeals, C.W. appeals an April 15, 2014 order committing him to the STU. He also appeals an April 9, 2015 order that continued his commitment following a review hearing predicated upon a finding by clear and convincing evidence that he remained a sexually violent predator in need of involuntary commitment. We affirm. I. In March 1990, C.W. pled guilty to burglary, N.J.S.A. 2C:18- 2(a)(1), and sexual assault of a child, N.J.S.A. 2C:14-2(b). He was sentenced to the ADTC for a period of ten years for the sexual assault charge and four years for the burglary charge, to run concurrently. Approximately two years after being released from the ADTC, in July 1997, C.W. was implicated in two separate incidents of burglary and sexual assault of children. In the first incident, C.W. entered a home and sexually assaulted a nine- year-old and an eight-year-old girl. Three days later, C.W. entered another home and sexually assaulted a three-year-old girl. C.W. was arrested and charged for the two incidents shortly thereafter. On April 26, 1999, C.W. was convicted after a jury trial and was sentenced to a state prison term of forty-five years with conditions of community supervision for life and five years parole 2 A-4227-14T5 ineligibility. Mandatory fines and penalties were imposed. C.W. filed a direct appeal of his conviction, arguing the two cases were improperly joined. We agreed and reversed the convictions. State v. [C.W.], No. A-1737-99 (App. Div. Jan. 25, 2002). C.W. was re-tried for the charges relating to the three-year-old girl. The State did not prosecute the incident involving the other two girls. After a jury trial in May 2003, C.W. was convicted of sexual assault of a child less than four-years old, burglary, and endangering the welfare of a child. C.W. was evaluated and determined to be eligible for sentencing to the ADTC. The court sentenced defendant to an extended term of twenty years, with ten years of parole ineligibility on the sexual assault conviction. On the third-degree burglary conviction, the court sentenced defendant to a term of five years to run consecutive to the sentence imposed for the sexual assault, and merged the third- degree endangering the welfare of a child conviction with the sexual assault. The court also imposed the mandatory fines and penalties, advised defendant of his obligations under Megan's Law (N.J.S.A. 2C:7-1 to -23), and directed that the custodial sentence for the sexual assault be served at the ADTC. C.W. filed a direct appeal. We affirmed the conviction but remanded for re-sentencing. State v. [C.W.], No. A-1710-03 (App. 3 A-4227-14T5 Div. June 30, 2006) (slip op. at 6). On December 8, 2006, C.W. was sentenced to an aggregate term of twenty-five years to the ADTC based upon his conviction for second-degree sexual assault of a child, N.J.S.A. 2C:14-2(b); third-degree burglary, N.J.S.A. 2C:18-2; and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). C.W. was confined at the ADTC from December 2003 until August 2011, and was then transferred to South Woods State Prison to serve his sentence for the burglary conviction. The State petitioned to have C.W. civilly committed under the SVPA in November 2013. On November 22, 2013, the court ordered C.W. temporarily committed to the STU pending a final hearing on the matter. II. A commitment hearing was held on April 15, 2014. During the hearing, the State offered the testimony of two expert witnesses. Prior to their testimony, both experts reviewed numerous documents in C.W.'s record, including his prior mental health evaluations and his criminal history. Dr. Pogos Voskanian, a psychiatrist, testified that C.W.'s "pattern of offending and arousal to children [] is deep seeded and is [an] integral part" of him. Dr. Voskanian described his impressions from his interview with C.W., noting that C.W. did not take his first incarceration at the ADTC seriously. Dr. Voskanian 4 A-4227-14T5 opined that "the pathology appears quite complex, because there is an adult type of offending, entering through the window, and there is no grooming, no coercing, no manipulating. . . . And the second component is pedophilic arousal with that." Dr. Voskanian concluded that C.W. suffered from a mental abnormality or personality disorder which predisposed him to sexually reoffend. Dr. Voskanian diagnosed C.W. with pedophilia but did not find any evidence of current psychosis and found C.W. "very engaging, coherent, [and] goal directed." In Dr. Voskanian's opinion, C.W. suffered from antisocial personality disorder due to "a juvenile history of problems with conduct such as fire setting, and contiu[ous] criminal behaviors as an adult." He further opined that the combination of an antisocial personality disorder and a sexual pathology "markedly elevates" the person's risk to sexually reoffend. Dr. Voskanian believed those conditions caused C.W. to have serious difficulty controlling his sexual offending behavior and to remain at high risk to sexually reoffend. Dr. Voskanian also noted C.W.'s history of drug abuse as a factor relative to a risk of reoffending. Dr. Jamie Canataro, a psychologist, also testified. Dr. Canataro's assessments and opinions were consistent with those of Dr. Voskanian. Since C.W. declined to be interviewed by Dr. Canataro despite two opportunities, Dr. Canataro reviewed and 5 A-4227-14T5 relied upon C.W.'s history and current progress at the STU in formulating her opinions. Dr. Canataro opined that C.W. has "behaviorally reinforced this [sexual offending] behavior," which showed "a longer period of the arousal becoming more and more ingrained, more of who [C.W.] is." Dr. Canataro referenced C.W's juvenile history, and sexual and physical abuse as a child. She also noted C.W.'s history of suicidal ideation and attempting suicide. Dr. Canataro scored the Static-99R1 and determined C.W. scored a seven, which indicated "a category of high risk to sexually reoffend." Further, Dr. Canataro opined that although C.W. had support from his father and received his GED while incarcerated, those factors were "not significant enough to reduce his risk below the threshold of highly likely [to reoffend]." C.W. testified that he was dealing with many issues during his initial time at ADTC and was not responsive to treatment. C.W. further testified that he believed he would be "okay" without treatment upon his release. However, he suffered a relapse when a romantic relationship went badly. C.W. described his troubled 1 The Static-99R is a ten item risk assessment instrument used with adult male sexual offenders at least eighteen years of age at the time of release to the community. See Static-99, http://www.static99.org/ (last visited May 2, 2018). 6 A-4227-14T5 family history and his prior criminal actions, and concluded that he would not reoffend if he was released. C.W. presented the testimony of Hawaiian Thompson Epps, an employee of the Office of the Public Defender (OPD). Epps conducted discharge assessments for the OPD of residents and people facing commitment petitions at the STU. Epps was assigned to C.W.'s case and investigated discharge options for C.W. She testified that she spoke to C.W.'s father about C.W. potentially living with him upon his release. Epps stated that C.W. would be provided with social services if he was discharged into the community. At the conclusion of the hearing, the court rendered a decision from the bench. The court found C.W.'s history of treatment at the ADTC for almost twelve years had "little if any effect on his understanding of his offending triggers, and little if any effect upon his empathy for the young victims [whom] he had violated." The court concluded: This [c]ourt is satisfied by clear and convincing evidence and the past record that the resident has been convicted of sexually violent offenses. There is no question about that. That he suffers from a mental abnormality or personality disorder, primarily of pedophilia, which we know does not remit by time, but only by gaining an understanding of how you can avoid circumstances where you expose yourself to that kind of risk. 7 A-4227-14T5 These are the sort of uncontrolled acts of . . . random behavior, crawling through windows, sneaking into homes at night. They're aggravated burglaries and sexual offenses. The PCL-R[2] which . . . we have evidence of it having been done, places him in the psychotic range, at least by the testimony of Dr. Canataro. The – the Static-99 places him at [seven], which is high risk. So, all the objective or semi-objective testing indicates that this resident is a high risk to reoffend. And based on those analys[e]s and those mental abnormalities and personality disorders, there's clear and convincing evidence that [C.W.] is highly likely to engage in further acts of sexual violence if not confined in a secure facility, that is the STU, for control, care, and primarily for treatment for his improvement and ability to again join civilian life after he's had . . . no treatment which has been meaningful to him. Premised upon the holding, the court ordered C.W. committed to the STU with a review to be scheduled in one year. III. At the April 1, 2015 review hearing, the State offered two expert witnesses, Dr. John Zincone, a psychiatrist, and Dr. Canataro. Dr. Zincone opined that C.W.'s criminal history of release and re-offense raised a number of concerns, including C.W.'s 2 The Hare Psychopathy Checklist-Revised (PCL-R) is a diagnostic tool used to rate a person's psychopathic or antisocial tendencies. 8 A-4227-14T5 inability to control his sexual impulses. Dr. Zincone reviewed C.W.'s history as well as his treatment notes at the STU. In regard to C.W.'s treatment progress, Dr. Zincone opined: [H]e's doing fair. He’s had some problems in group in terms of exploring his arousal, being open about his crimes. Although he’s had several years of treatment at ADTC, his treatment team places him in the beginning stages. He certainly needs to work on exploring his – his arousal to prepubescent females. He needs to be open to feedback from others. And he needs to begin to place his – his own sexual offender dynamics into an assault cycle. Based upon his interview of C.W., Dr. Zincone rated him at an eight on the Static-99R, which placed C.W. in the high risk to reoffend category. Dr. Zincone diagnosed C.W. with pedophilic disorder, stimulant use disorder, and antisocial personality disorder. These conditions were chronic, and the treatment C.W. received was insufficient to control the impulses caused by the disorders. Dr. Canataro testified regarding her annual evaluation of C.W. and her report. Dr. Canataro stated that C.W. was recommended to advance to Phase 2 of treatment by the Treatment Progress Review Committee (TPRC) panel. Although C.W. was attending group sessions, Dr. Canataro opined that, "he struggles with relating these concepts to his own offending dynamic, sexual deviance or assault cycle and he continues to utilize many cognitive 9 A-4227-14T5 distortions." Dr. Canataro further noted that C.W. was not yet beneath the threshold of highly likely to reoffend. C.W. testified regarding his treatment at the ADTC and his prior inability to respond to that treatment. He stated that while his deviant arousal was "always there" it was not active in his life. C.W. acknowledged that he needed treatment but could receive treatment outside of confinement. At the conclusion of the hearing, the court issued a decision from the bench holding that the State proved by clear and convincing evidence that C.W. continued to suffer from a mental abnormality and was highly likely to reoffend. The court set a review date for March 18, 2016. C.W. appealed from both the April 15, 2014 order and the April 9, 2015 order. The appeals were consolidated. On appeal, C.W. raises the following points: POINT I THE COMMITMENT COURT RELIED SOLELY ON THE EXPERT TESTIMONY AND FAILED TO INDEPENDENTLY REVIEW THE EVIDENCE TO DETERMINE WHETHER COMMITMENT WAS APPROPRIATE. POINT II THERE WAS NO COMPETENT EVIDENCE AT EITHER HEARING TO SUPPORT THE FINDING RELIED ON BY EACH JUDGE THAT C.L.W. HAD A HIGH LEVEL OF PSYCHOPATHY. 10 A-4227-14T5 Having considered these arguments in light of our standard of review and the record from both hearings, we conclude that these arguments lack sufficient merit to warrant extended discussion in a written opinion. Rule 2:11-3(e)(1)(E). We add only the following. The standard governing our review of the trial court's commitment decision is well settled. We must give the trial court's decision the utmost deference; the court's decision should only be modified where the record reveals a clear abuse of discretion. In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div. 2003). "The appropriate inquiry is to canvas . . . expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996) (citing State v. Fields, 77 N.J. 282, 311 (1978)). Notwithstanding our deference, we "must consider the adequacy of the evidence." In re Commitment of M.M., 384 N.J. Super. 313, 334 (App. Div. 2006) (citing D.C., 146 N.J. at 58-59). "[W]e have not hesitated to reverse involuntary commitments when the record failed to contain clear and convincing evidence of 'a substantial risk of dangerous conduct within the reasonably foreseeable future.'" In re Commitment of T.J., 401 N.J. Super. 111, 119 (App. Div. 2008) (quoting In re S.L., 94 N.J. 128, 138 (1983)). 11 A-4227-14T5 As a general matter, a trial judge in an SVPA commitment hearing may consider hearsay in order to assess the credibility of expert testimony, if the expert has based his opinion on such evidence and the evidence is "of a type reasonably relied upon by experts in the particular field." N.J.R.E. 703; In re Civil Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004). An expert is permitted to rely upon hearsay information in forming an opinion with respect to an individual's mental condition. In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div. 2003). The judge may not consider such hearsay statements as substantive evidence unless the statements come within an exception to the hearsay rule. In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 56 (App. Div. 2004); A.X.D., 370 N.J. Super. at 202. We are satisfied from our review of the record that the judges adhered to these principles in rendering their decisions in this case. The pertinent query is whether "the opinion ultimately rendered . . . is that of the witness based on his or her own evaluation of the committee, prior offenses, and objective test data." In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 492 (App. Div. 2005). Here, neither Dr. Voskanian, Dr. Canataro, nor Dr. Zincone "simply agree[d] with the opinions of other, non- testifying examiners." Id. at 489. Rather, each formed his or 12 A-4227-14T5 her opinions based on an assessment of C.W.'s prior history and psychological and psychiatric deficiencies. Here, we are satisfied that the record amply supports both the court's initial determination to commit C.W. and the court's determination to continue his commitment after the review hearing. Both determinations were premised upon sufficient competent evidence that satisfied the burden of persuasion. Affirmed. 13 A-4227-14T5
HADDON TOWNSHIP HOUSING AUTHORITY – ROHRER TOWERS I v. WILLIAM KIGGINS
Date: May 14, 2018
Docket Number: a4403-16
Date: May 14, 2018
Docket Number: a4403-16
INTHE MATTER OF THE APPROVAL OF THE APPLICATION OF THE AILANTHUS CHARTER SCHOOL
Date: May 11, 2018
Docket Number: a0945-16
Date: May 11, 2018
Docket Number: a0945-16
STATE OF NEW JERSEY v. TIWAN FLAGLER
Date: May 11, 2018
Docket Number: a3357-14 GOODEN BROWN, J.A.D. A Hudson County grand jury indicted defendants Tiwan Flagler and Darnell Wilson for first-degree armed robbery, N.J.S.A. 2C:15- 1 (count one); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count two); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four). Flagler was also indicted in two additional counts for second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count five); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count six). Following a joint jury trial, defendants were convicted on all counts.1 After appropriate 1 At the close of the State's case, the trial court granted Flagler's motion to dismiss count six pursuant to Rule 3:18-1. 2 A-3357-14T2 merger, Wilson was sentenced to an aggregate eighteen-year prison term, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Flagler was sentenced to an aggregate extended term of thirty years, subject to NERA. The convictions stemmed from defendants robbing a traveling salesman at gunpoint after luring him to a secluded location. The victim promptly reported the robbery to the police and provided a description of his assailants, who had been regular customers, as well as a description of the vehicle they were driving. A few days later, police conducted a motor vehicle stop of the suspect vehicle and apprehended the two occupants, who matched the victim's descriptions and were later identified as defendants. A handgun matching the victim's description was found on Flagler's person during the ensuing pat down. In these back-to-back appeals, which we now consolidate for purposes of this opinion, defendants appeal their convictions and sentences. Wilson raises the following arguments for our consideration: POINT I THE WARRANTLESS STOP AND SEARCH OF THE NISSAN AUTOMOBILE VIOLATED THE DEFENDANT'S RIGHT TO BE FREE FROM UNLAWFUL SEARCH AND SEIZURE GUARANTEED BY THE NEW JERSEY AND FEDERAL CONSTITUTIONS. 3 A-3357-14T2 POINT II MR. WILSON'S MOTION [TO] SEVER COUNTS FIVE AND SIX THAT RELATED ONLY TO . . . FLAGLER, SHOULD HAVE BEEN GRANTED. POINT III TESTIMONY OF DETECTIVE POST THAT BASED ON INFORMATION PROVIDED HE WENT TO [THE BUREAU OF CRIMINAL INVESTIGATIONS] TO OBTAIN DEFENDANT'S PHOTOGRAPH FOR A PHOTOGRAPH ARRAY WAS GROSSLY PREJUDICIAL AND DEPRIVED DEFENDANT OF A FAIR TRIAL. POINT IV CERTAIN COMMENTS MADE BY THE PROSECUTOR IN SUMMATION WERE GROSSLY PREJUDICIAL AND DEPRIVED DEFENDANT OF A FAIR TRIAL. POINT V IT WAS ERROR FOR THE TRIAL COURT TO DENY DEFENDANT'S REQUEST FOR A "FALSE IN ONE, FALSE IN ALL" CHARGE. POINT VI THE AGGREGATE SENTENCE IMPOSED UPON THE DEFENDANT OF EIGHTEEN (18) YEARS WITH 85% PAROLE INELIGIBILITY WAS EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED. (Not Raised Below). Flagler raises the following points for our consideration: POINT I THE BRANCH ERRORS, WHICH OCCURRED WHEN THE PROSECUTOR ELICITED FROM POLICE WITNESSES THAT THEY TOOK PARTICULAR ACTION IN THE CASE -- MOST NOTABLY ASSEMBLING PHOTO ARRAYS USED TO IDENTIFY THE DEFENDANT AND CODEFENDANT -- BASED UPON INADMISSIBLE HEARSAY EVIDENCE, i.e., UPON "INFORMATION RECEIVED," VIOLATED 4 A-3357-14T2 DEFENDANT'S RIGHTS AGAINST HEARSAY EVIDENCE AND HIS CONSTITUTIONAL RIGHTS TO CONFRONTATION, AND CONSTITUTES REVERSIBLE ERROR. (Partially Raised Below). POINT II WHEN A JUROR WAS DISMISSED AT THE BEGINNING OF THE TRIAL FOR READING NEWS COVERAGE ABOUT THE CASE, THE JUDGE COMMITTED PLAIN ERROR WHEN HE FAILED TO CONDUCT A VOIR DIRE OF THE REST OF THE JURY TO DETERMINE IF THE DISMISSED JUROR HAD CONVEYED ANY OF WHAT SHE READ TO THE OTHER JURORS. (Not Raised Below). POINT III THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE. After considering the arguments presented in light of the record and applicable law, we affirm. I. We recount the pertinent facts from the trial record. On August 10, 2012, M.I.2 was in Jersey City selling home theater and stereo systems out of his truck. Although he was operating without a license, M.I. purchased the systems wholesale from a manufacturer and sold them on the street for a profit. Defendants were two of M.I.'s repeat customers, having previously purchased from M.I. on multiple occasions. On the evening of August 10, M.I. agreed to meet Wilson and Flagler at the Gulf gas station on Route 440 and Duncan Avenue in Jersey City so that they could make a purchase. 2 We use initials to identify the victim to protect his privacy. 5 A-3357-14T2 According to M.I., defendants arrived in a green Nissan Altima that was being driven by Wilson. Flagler was the front seat passenger. After examining the goods in M.I.'s truck, Wilson offered to buy several items, and advised M.I. that a friend of his also wished to make a purchase. However, because Wilson's friend was supposedly still at work, M.I. agreed to follow Wilson to his friend's job. While enroute, they communicated by phone so that they would not get separated. When they arrived at a school parking lot, Wilson switched his story, explaining that his friend was now "at his house." Although apprehensive, M.I. continued to follow defendants to a residence on Van Nostrand Avenue. Upon arrival, both cars parked in the adjacent driveway, but there was no sign of Wilson's friend. Nonetheless, M.I. and defendants exited their respective vehicles and continued to negotiate prices for the goods. Flagler then asked M.I. to show him "how to connect a phone for your [MP3] to the back of the receiver." M.I. reached through the passenger side window of his truck to retrieve the MP3 wire to demonstrate. When he turned around, Flagler was pointing a gun in his face. Flagler slid the gun down into M.I.'s mid-section, pinning M.I. against the truck, and threatened M.I. stating, "[i]f you move . . . I don't give a f***, I'll blow it." Meanwhile, 6 A-3357-14T2 Wilson removed three home theater systems from M.I.'s truck and rifled through M.I.'s pockets, removing his cell phone and approximately twenty-one dollars in cash. When they returned to their vehicle to flee, M.I. pleaded with defendants to return his cell phone. Instead, Flagler pointed the gun out of the passenger side window towards M.I., prompting M.I. to duck behind his truck as defendants drove off. After defendants left, M.I. drove to a gas station to get directions to the closest police station because he was unfamiliar with the area. M.I. was directed to the Jersey City police station where he reported the robbery to Officer Ryan Macaluso. M.I. also provided descriptions of defendants, their vehicle, a partial license plate, and the gun used in the robbery. M.I. described his assailants as "two Black males, approximately five[-]foot seven . . . 200 pounds, both between [the] age of approximately 19 and 23[,]" one with a "crew cut" and the other with "dreadlocks." M.I. described their vehicle as a green four door "2000 Nissan Altima" bearing a license plate beginning with the letter B and ending with the letter L. He described the weapon as a "black colored revolver with white tape on the handle." Once M.I.'s report was filed, Detective Michael Post was assigned to investigate the case. 7 A-3357-14T2 Five days later, on August 15, 2012, Jersey City Police Officer Joseph Seals conducted a motor vehicle stop of a vehicle matching M.I.'s description being driven by a woman named Alexis Street. Based on information obtained during the stop, Post identified Wilson as a possible suspect and a six-person photo array, including Wilson's photograph, was prepared and presented to M.I. in a photo line-up identification procedure. As a result, M.I. positively identified Wilson as one of the robbers and Post issued a warrant for Wilson's arrest. Five days later, on August 20, 2012, Seals observed the same vehicle occupied by two males matching M.I.'s descriptions traveling north on Bergen Avenue. Seals along with three other officers, including Officer Ed Redmond, conducted another motor vehicle stop. After the stop, Seals approached the Nissan on the driver side and identified Wilson as the driver. Upon confirming that the arrest warrant issued by Post was active, Seals placed Wilson under arrest. Meanwhile, Redmond approached the Nissan from the passenger side and noted that both occupants were "breathing heavily," were "sweating" and "appeared nervous." Redmond observed a bulge on the left side of the passenger's waistline. Based on the location and the size of the bulge, Redmond suspected that it was a weapon and ordered the passenger, who was later identified as Flagler, out of the vehicle. After Flagler exited the vehicle, Redmond 8 A-3357-14T2 conducted a pat down and retrieved a loaded .380 caliber handgun with light colored tape on the handle from Flagler's waistline. Flagler was then placed under arrest. Redmond secured the gun by removing the magazine, which contained seven rounds, and clearing the chamber of one round.3 The following day, Post prepared a six-person photo array, including Flagler's photograph, and arranged for the array to be presented to M.I. in a photo line-up identification procedure. As a result, M.I. positively identified Flagler as the second robber. At trial, M.I. identified both defendants as the robbers and the handgun seized from Flagler as the gun used during the robbery. Following the guilty verdict, on February 6, 2015, the trial court granted the State's motion for an extended-term sentence, finding Flagler met the persistent offender criteria set forth in N.J.S.A. 2C:44-3(a). After merging counts two and four into count one, the court sentenced Flagler to thirty years' imprisonment, subject to NERA, on count one, and a concurrent ten-year term with a five-year period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6, each on counts three and five. As to Wilson, the court sentenced him to eighteen-years' imprisonment, subject to NERA, on count one and a concurrent ten-year term with 3 The State produced a firearms expert who testified that the handgun was operable. 9 A-3357-14T2 a five-year period of parole ineligibility on count three. A memorializing judgment of conviction was entered on March 23 and February 17, 2015, respectively, and these appeals followed. II. In Point I of his merits brief, Wilson contends the trial court erred in denying his pre-trial suppression motion. Wilson argues "the [c]ourt's denial of the motion on the grounds that the stop was justified because defendant was not wearing a seatbelt, that there was a warrant for [Wilson's] arrest and there was probable cause . . . was erroneous." We disagree. At the pre-trial suppression hearing conducted on November 19, 2013, Seals and Edmond testified consistent with their trial testimony. According to Seals, on August 15, 2012, when he pulled over Street because she was operating a vehicle matching the description of a vehicle involved in an armed robbery, she advised him that her boyfriend, Wilson, was the only other operator of the vehicle. After Seals provided this information to the detective bureau, a warrant was issued for Wilson's arrest. Five days later on August 20, 2012, when Seals observed the same vehicle occupied by two males fitting the description of the robbers, neither of whom were wearing a seat belt, he conducted a second motor vehicle stop. 10 A-3357-14T2 After the stop, as Seals approached the driver side of the vehicle, he noted that both occupants were breathing heavily as if they were nervous. Seals confirmed that the driver was, in fact, Wilson and that the warrant for his arrest was active. Meanwhile, after observing a bulge on the left side of the front seat passenger's waistline and the same nervous behavior detected by Seals, Edmond removed the passenger, later identified as Flagler, from the vehicle and conducted a pat down, resulting in the seizure of the loaded handgun. Following the hearing, the court found the officers credible and made factual findings consistent with their testimony. The court rejected Wilson's arguments, renewed on appeal, "that the stop of the motor vehicle for a seatbelt violation was merely a pretext utilized by the officers to stop the vehicle" and that "the officers did not have a heightened sense of danger sufficient to order the occupants to exit the vehicle." In denying the motion, the court stated: Whether or not the officers were more interested in investigating the armed robbery than the minor traffic violation is completely irrelevant with regard to the justification for the stop. It is beyond dispute that police officers may lawfully stop a motor vehicle for a violation of our motor vehicle laws. Here, the driver of the vehicle was operating the vehicle without a seatbelt, and that's a violation. Therefore, the stopping of the 11 A-3357-14T2 motor vehicle as a consequence of that violation was lawful. Even if that were not the case, the testimony here establishes, based upon the totality of the circumstances[,] that these officers had far more than merely a reasonable suspicion of criminal activity. There was at that time a warrant for the arrest of . . . Wilson. And both officers were aware of its existence. They were further aware of the allegations involving the use of a handgun in the robbery. They were aware of the descriptions provided of these defendants, as well as a detailed description of the vehicle, and these defendants and the vehicle matched those descriptions. The existence of the warrant, standing on its own, establishes that probable cause existed for the arrest of . . . Wilson. Since the vehicle stop was lawful and the officers were aware that the particular crime for which Wilson and the second man matching the physical characteristics of the vehicle's passenger were wanted . . . involved a handgun, when the officers observed a bulge in the passenger's waistband, I’m satisfied it was more than objectively reasonable for him to have a heightened sense of danger and lawful under the circumstances to require the occupants to exit the vehicle to enable him to conduct a protective search for a weapon. The search . . . conducted did not exceed the scope permitted for a limited protective search. Our Supreme Court has explained our standard of review of a trial court's ruling on a motion to suppress as follows: 12 A-3357-14T2 We are bound to uphold a trial court's factual findings in a motion to suppress provided those "findings are 'supported by sufficient credible evidence in the record.'" Deference to those findings is particularly appropriate when the trial court has the "opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Nevertheless, we are not required to accept findings that are "clearly mistaken" based on our independent review of the record. Moreover, we need not defer "to a trial . . . court's interpretation of the law" because "[l]egal issues are reviewed de novo." [State v. Watts, 223 N.J. 503, 516 (2015) (alteration in original) (citations omitted) (first quoting State v. Elders, 192 N.J. 224, 243-44 (2007); then quoting State v. Vargas, 213 N.J. 301, 327 (2013)).] Applying this standard, we discern no basis to disturb the judge's ruling. It is a well-established constitutional principle that "[m]otor vehicle stops are seizures for Fourth Amendment purposes." State v. Sloane, 193 N.J. 423, 429-31 (2008). "Under both the Fourth Amendment [of the United States Constitution] and Article I, Paragraph 7 [of the New Jersey Constitution], ordinarily, a police officer must have a reasonable and articulable suspicion that the driver of a vehicle, or its occupants, is committing a motor-vehicle violation or a criminal or disorderly persons offense to justify a stop." State v. Scriven, 226 N.J. 20, 33-34 (2016). Unless the totality of the circumstances 13 A-3357-14T2 satisfies the reasonable and articulable suspicion standard, the investigatory stop "is an 'unlawful seizure,' and evidence discovered during the course of an unconstitutional detention is subject to the exclusionary rule." Elders, 192 N.J. at 247 (quoting State v. Rodriguez, 172 N.J. 117, 132-33 (2002)). In determining the reasonableness of the police conduct, an objective test is used, "recognizing that raw, inchoate suspicion grounded in speculation cannot be the basis for a valid stop." Scriven, 226 N.J. at 34. Rather, "a reviewing court must assess whether 'the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate.'" State v. Mann, 203 N.J. 328, 338 (2010) (quoting State v. Pineiro, 181 N.J. 13, 21 (2004)). The State bears the burden of proving "by a preponderance of the evidence that it possessed sufficient information to give rise to the required level of suspicion." State v. Amelio, 197 N.J. 207, 211 (2008). A pat-down of an occupant ordered from a car after an investigatory stop is a separate event that is also subject to constitutional scrutiny and must be evaluated under the standard enunciated in Terry v. Ohio, 392 U.S. 1 (1968). "[T]o justify a pat-down of an occupant once alighted from a vehicle, specific, articulable facts must demonstrate that a 'reasonably prudent man 14 A-3357-14T2 in the circumstances would be warranted in the belief that his safety or that of others was in danger.'" State v. Smith, 134 N.J. 599, 619 (1994) (quoting Terry, 392 U.S. at 27). "A 'hunch' forms an insufficient basis on which to conduct the uncomfortable and often embarrassing invasion of privacy that occurs in a pat- down of a person's body." Ibid. However, a bulge alone has been held sufficient to validate a protective pat-down. See Pennsylvania v. Mimms, 434 U.S. 106, 111-12 (1977); State v. Wanczyk, 201 N.J. Super. 258, 264 (1985) ("[o]nce defendant exited the car and the police observed the bulge in the left sleeve of defendant's jacket, the officers unquestionably had the right to conduct a frisk of the defendant under the principles pronounced in [Terry]."). "In this one respect, the Terry standard [to justify a pat-down] and the standard for ordering a passenger out of a car are the same." Smith, 134 N.J. at 619. Here, the trial court's finding that the totality of the circumstances justified an investigatory stop of the vehicle and a pat-down of Flagler was derived from Seals' and Edmonds' testimony, which the court accepted as credible. The court found that: (1) defendants and the vehicle matched the victim's descriptions of the armed robbers and the getaway vehicle, respectively; (2) an arrest warrant had been issued for Wilson; (3) police observed a motor vehicle violation by virtue of Wilson's 15 A-3357-14T2 operation of the vehicle without wearing a seat belt;4 (4) when the officers approached the vehicle, defendants appeared nervous; and (5) Edmonds observed a bulge on Flagler's waistline. We are satisfied that the trial court's findings are amply supported by the record. See State v. Stovall, 170 N.J. 346, 367 (2002) (noting even though nervousness may be normal, it "does not detract from the well-established rule that a suspect's nervousness plays a role in determining whether reasonable suspicion exists"). III. In Point II of his merits brief, Wilson argues the trial court erred in denying his pre-trial motion to sever counts five and six that related only to Flagler, and charged weapon possession offenses during the August 20 motor vehicle stop that occurred subsequent to the robbery. Specifically, Wilson contends that the two "Flagler counts . . . did not relate to him and a joint trial including those two counts would be grossly prejudicial." We disagree. At the pre-trial motion hearing conducted on November 5, 2014, the trial court denied Wilson's request for severance of counts five and six after rejecting his argument that the State's 4 N.J.S.A. 39:3-76.2f(a) provides, in pertinent part, that "each driver and front seat passenger of a passenger automobile operated on a street or highway in this State shall wear a properly adjusted and fastened safety seat belt . . . ." 16 A-3357-14T2 introduction of evidence from the August 20 motor vehicle stop, which resulted in the recovery of the handgun during the pat-down of Flagler, prejudiced his right to a fair trial. Based on the State's contention that the handgun involved in the August 5 armed robbery was the same gun recovered from Flagler during the August 20 pat-down, the court determined that [T]hese two incidents occurred very close in . . . time. The evidence of the possession of a firearm is certainly clear and convincing, and the prejudice to the defendant . . . is not overwhelming. The probative value is more significant than the prejudice to the defendant. So, I don't . . . find any reason why this evidence wouldn't be admissible at a joint trial in any event, so severance is not required . . . . The decision whether to deny defendant's motion to sever counts at trial "rests within the trial court's sound discretion and is entitled to great deference on appeal." State v. Brown, 118 N.J. 595, 603 (1990). Thus, the "[d]enial of such a motion will not be reversed in the absence of a clear showing of a mistaken exercise of discretion." State v. Krivacska, 341 N.J. Super. 1, 38 (App. Div. 2001). "[W]here the evidence establishes that multiple offenses are linked as part of the same transaction or series of transactions, a court should grant a motion for 17 A-3357-14T2 severance only when defendant has satisfied the court that prejudice would result." State v. Moore, 113 N.J. 239, 273 (1988). Because courts have recognized that any trial involving several charges "probably will involve some potential [prejudice], . . . other considerations, such as economy and judicial expediency, must be weighed" when deciding a severance motion. State v. Coruzzi, 189 N.J. Super. 273, 297 (App. Div. 1983). These interests may require that charges remain "joined for a single trial, so long as the defendant's right to a fair trial remains unprejudiced." Id. at 298 (citations omitted). Thus, "'the mere claim that prejudice will attach' is not sufficient to support a motion for severance[.]" Moore, 113 N.J. at 274 (quoting State v. Kent, 173 N.J. Super. 215, 220 (App. Div. 1980)). Rule 3:7-6, which governs the joinder of offenses, provides that [t]wo or more offenses may be charged in the same indictment . . . if the offenses charged are of the same or similar character or are based on the same act or transaction or on [two] or more acts or transactions connected together or constituting parts of a common scheme or plan. Under Rule 3:7-6, "[r]elief from prejudicial joinder shall be afforded as provided by [Rule] 3:15-2." Rule 3:15-2(b) provides that if it appears that a defendant is prejudiced by a joinder of "defendants in an indictment[,]" the court "may order an election 18 A-3357-14T2 or separate trials of counts, grant a severance of defendants, or direct other appropriate relief." In determining whether joinder is prejudicial, the critical inquiry is "whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges." State v. Chenique-Puey, 145 N.J. 334, 341 (1996) (alteration in original) (quoting State v. Pitts, 116 N.J. 580, 601-02 (1989)). Where evidence would be admissible at both trials, severance may be denied as "a defendant [would] not suffer any more prejudice in a joint trial than he would in separate trials." Ibid. (quotation omitted). Under N.J.R.E. 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute. "Evidence of conduct including other criminal acts of an accused, subsequent to the offense charged is admissible if it is probative of guilt." State v. Johnson, 287 N.J. Super. 247, 262 (App. Div. 1996). Here, the trial court correctly denied Wilson's severance motion because the evidence would have been admissible under 19 A-3357-14T2 N.J.R.E. 404(b) based on the State's position that the gun found on Flagler's person following the motor vehicle stop was jointly possessed by both Flagler and Wilson, and was the gun used to perpetrate the armed robbery for which Wilson was on trial. The offenses were therefore interrelated and probative of guilt. As the court correctly found, any prejudice to Wilson did not overwhelm the extreme probative value of the evidence relating to the charged offenses. Moreover, joinder was warranted in "[t]he interests of economy and efficiency . . . ." Coruzzi, 189 N.J. Super. at 298. See also State v. Urcinoli, 321 N.J. Super. 519, 543 (App. Div. 1999) (finding no abuse of discretion in denying the motion to sever in the absence of undue prejudice and acknowledging judicial economy). IV. In Point III of his merits brief, Wilson argues that Detective Post's testimony regarding "information received" and "'names' obtained" constituted inadmissible hearsay evidence. According to Wilson, Post's testimony "[c]oupled with reference to BCI which implied a prior criminal history," and the trial court's denial of his "request to crop [defendant's] photograph to eliminate the police identifiers so a juror could not lift the tape[,]" unfairly 20 A-3357-14T2 prejudiced him, and "[t]he trial court’s charge regarding police photos did not dissipate this prejudice." At trial, Post testified during his direct examination that on August 15, 2012, he received a report "regarding a car stop of a vehicle that matched" the robbery victim's description. Using the "name that was provided" in the report, Post "went to [the] Bureau of Criminal Investigations and --[.]" Before Post completed this sentence, Wilson's counsel objected and the following colloquy ensued: [WILSON'S COUNSEL]: I think we are getting into where he developed the photo array. I think he was about to open to he went to his Criminal Investigation Unit to get the pictures which is concerning – [THE COURT]: What is it you’re trying to get out, sir? [PROSECUTOR]: . . . He said he looked at pictures of the guy and matched, so he set up [a] photo array and asked [M.I.] to come in. [THE COURT]: Looked up a picture of what guy, it matched what? [PROSECUTOR]: . . . [L]ooked up a picture of . . . Wilson and matched the description provided by [M.I.], so he set up a photo array and called [M.I.] to come in. [THE COURT]: You are going to have to skip all of the preliminaries and get to the photo array because without Alexis Street testifying that she told them her boyfriend is Darnell 21 A-3357-14T2 Wilson, he uses the car, there is no connection between the two. You don’t have her, so everything he’s going to say is going to be hearsay. You can’t go there, but you can get to the point he sets up a photo array and asked him if he could identify him. [WILSON'S COUNSEL]: I don't have a problem if you lead him into that, you set up a photo array. [THE COURT]: Based on information received, set up photo array, lead to the identification of [Wilson], simple and clean. At that point, Flagler's counsel made the following request, which was joined by Wilson's attorney: [S]ince the Bureau of Criminal Identification has already been said by this Detective, [I request] that you instruct the jury to take no negative inference from him going there. It has nothing to do with anything related to this case. He said Bureau of Criminal Identification and it may be in the jury's head it has something to do with them in criminal activity. The court agreed and instructed the jury as follows: Ladies and gentlemen, a moment ago in the response, the witness indicated that there is some facility within the Jersey City Police Department called their Bureau of Identification or BCI, Bureau of Criminal Investigation or Identification, they're two different things and, you're to take no negative inference from the fact that a photograph or photographs may have been taken from there and utilized in this investigation. 22 A-3357-14T2 As I indicated to you previously, photographs come into possession of police departments in many different ways that are unconnected with any illegal activity or criminal activity on the part of a person. You're to draw no negative inferences from the fact that a photograph or photographs were obtained from the Bureau of Criminal Identification. There was no objection to the court's charge. Following the court's instruction, the State continued its direct examination of Post, inquiring whether Post set up a photo array "based on any information" obtained on August 15, 2012. Post responded in the affirmative and testified that after he set up the photo array containing a total of six photos, he contacted M.I. to come in and view the photographs. He arranged for an "independent [d]etective" to conduct the identification procedure, which resulted in a positive identification of Wilson as one of the robbers. After the photo array was admitted into evidence, Wilson's counsel noted that there was "a placard on those photos showing Jersey City mug shots." Counsel urged the court to "cut off" the placard so that "just [the] picture of the face" appears, rather than just covering the placard with masking tape. According to counsel, it would be "quite easy for a juror to peel that tape off and see what's behind there[,]" and "[w]hat's behind there is 23 A-3357-14T2 extremely prejudicial and has no probative value here." In denying defense counsel's request, the court stated: I gave [the jury] multiple instructions with respect to the photographs and the fact they're not to . . . draw any negative inferences from the fact that Jersey City [p]olice happen to have photographs of your clients. So I have done that at least three times. I am going to do it in the final instructions. I don't see any reason why the [c]ourt should believe they would not comply with that instruction and tamper with the evidence. I don't think that's appropriate. We first address Wilson's argument that Post's testimony regarding "information received" and "'names' obtained" constituted inadmissible hearsay. Because a defendant has a constitutional right to confront his accusers, statements made by non-testifying persons suggesting defendant is involved in unlawful conduct are excluded unless admissible on some other basis, and unless defendant had the opportunity for cross- examination. State v. Cabbell, 207 N.J. 311, 329-30 (2011) (citing Crawford v. Washington, 541 U.S. 36, 59 (2004)). Such statements must be excluded if they connect in some improper manner to the criminal prosecution in question. Id. at 329. In State v. Branch, 182 N.J. 338 (2005), an officer "testified that he included defendant's picture in a photographic array because he had developed defendant as a suspect 'based on information received.'" Id. at 342. He also testified to the 24 A-3357-14T2 out-of-court descriptions of a burglar given by "non-testifying child victims." Ibid. Our Supreme Court found the testimony to be "inadmissible hearsay that violated defendant's right of confrontation" because the source of the information was not called as a witness, and defendant had no opportunity to cross-examine. Ibid. The Court noted: When a police officer testifies concerning an identification made by a witness, . . . what counts is whether the officer fairly arranged and displayed the photographic array and whether the witness made a reliable identification. Why the officer placed the defendant's photograph in the array is of no relevance to the identification process and is highly prejudicial. For that reason, we disapprove of a police officer testifying that he placed a defendant's picture in a photographic array "upon information received." Even such seemingly neutral language, by inference, has the capacity to sweep in inadmissible hearsay. It implies that the police officer has information suggestive of the defendant's guilt from some unknown source. [Id. at 352-53 (citation omitted).] Here, these principles were clearly violated. Thus, we must now determine whether the trial court's admission of the detective's testimony constituted harmless error. Rule 2:10-2 directs reviewing courts to disregard "[a]ny error or omission . . . unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ." Known as the harmless 25 A-3357-14T2 error doctrine, the rule "requires that there be 'some degree of possibility that [the error] led to an unjust result.'" State v. R.B., 183 N.J. 308, 330 (2005) (alteration in original) (quoting State v. Bankston, 63 N.J. 263, 273 (1973)). As to the extent of error required for reversal, "[t]he possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached." Ibid. (second alteration in original) (quoting Bankston, 63 N.J. at 273). Unlike Branch, this was not "a close case." 182 N.J. at 353. Here, the State's evidence was overwhelming. The victim knew and identified both defendants from their prior encounters and a loaded handgun matching the victim's description was recovered from Flagler in a vehicle also matching the victim's description. In light of the total record, we are satisfied that the detective's hearsay testimony that he assembled a photo array based on "information" obtained and "the name provided" in the August 15, 2012 report did not lead the jury to a verdict it otherwise might not have reached. Next, we turn to Wilson's argument that Post's reference to BCI and the trial court's denial of his request to remove rather than cover the placard with masking tape unfairly prejudiced him despite the court's charge. References to a photograph as a "mug 26 A-3357-14T2 shot" or otherwise obtained from police sources, as here, have been found to be harmless error where they are solitary and fleeting, and accompanied by an appropriate cautionary instruction to the jury. See State v. Harris, 156 N.J. 122, 173 (1998) (holding that a witness' reference to mug shots was not plain error despite the absence of a curative instruction because the reference was "fleeting and came after testimony that defendant had been arrested"); State v. Porambo, 226 N.J. Super. 416, 425- 26 (App. Div. 1988) (holding that a detective's reference to the defendant's mug shots was not plain error because the judge gave a proper curative instruction and the reference was "fleeting and not subject to prolonged examination"). Here, we conclude that the reference to BCI was harmless error and the trial court's limiting instruction, substantially the same as the Model Jury Charge (Criminal), "Identity - Police Photos" (1992), was sufficient to cure any potential prejudice caused by Post's passing reference. We also conclude that because "identification [was] an issue" and the State's use of the photos in the photo array was "reasonably related to that issue," the photos were "admissible for that purpose" and were presented "in as neutral a form as possible . . . ." State v. Taplin, 230 N.J. Super. 95, 99 (App. Div. 1988). We therefore reject Wilson's 27 A-3357-14T2 contention that the court erred in denying his request to remove rather than cover the placard. V. In Point IV of his merits brief, Wilson argues that the prosecutor made "improper" comments during summation about "facts not in evidence" that "were unduly prejudicial and deprived [him] of a fair trial." Wilson asserts that although "[t]he trial court sustained the objection," "the improper conduct . . . was not ameliorated by the [c]ourt" because the court "did not strike the testimony or instruct the jury to disregard it." A defendant's conviction should only be reversed due to prosecutorial wrongdoing "where the . . . misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). While a prosecutor "in . . . summation may suggest legitimate inferences to be drawn from the record," a prosecutor "commits misconduct when [the summation] goes beyond the facts before the jury." Harris, 156 N.J. at 194. However, to warrant reversal, the misconduct "must have been 'clearly and unmistakably improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Timmendequas, 161 N.J. 515, 575 (1999) (quoting State v. Roach, 146 N.J. 208, 219 (1996)). In this regard, we consider three factors: "(1) whether 28 A-3357-14T2 defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Frost, 158 N.J. at 83. Here, defense counsel attacked M.I.'s credibility throughout his summation, among other things, focusing on incoming and outgoing telephone calls on M.I.'s cell phone on the day of and the day after the robbery, which defense counsel characterized as "a critical piece of information" in his attempt to discredit M.I. In response, the prosecutor stated to the jury: Now, this whole phone call business that . . . [d]efense [c]ounsel wants you to believe that [M.I.] made this call or received this phone call. Ladies and gentlemen, I asked . . . . M.I. about that phone call. I asked him prior to trial because our [o]ffice is here to search for the truth, okay. That's why he knew that question was coming because I asked him, our [o]ffice asked him straight and directly -- Defense counsel promptly objected to the prosecutor's remarks, the trial court sustained the objection and admonished the prosecutor "[y]ou may not testify." The prosecutor resumed his summation stating: Ladies and gentlemen, [M.I.] testified right here that he didn't call that phone call. I submit to you, that phone call was made by the [d]efendants to the phone number which they believe was of the phone that they still had the phone they had stolen from [M.I.], okay. 29 A-3357-14T2 While we agree with the trial court that the initial remarks were improper, we conclude that they did not substantially prejudice defendant's fundamental right to have the jury fairly evaluate the merits of his defense or compromise the jury's ability to fulfill its fact-finding function. Moreover, while the court did not strike the remarks from the record, it instructed the jurors that they were "the sole and exclusive judges of the evidence," and that "summations of [c]ounsel [were] not evidence and must not be treated as evidence." We presume the jurors followed the court's instructions. State v. Montgomery, 427 N.J. Super. 403, 410 (App. Div. 2012). Regarding the latter remarks, we are satisfied that those remarks were "based on the facts of the case and reasonable inferences therefrom," and "what is said in discussing them, 'by way of comment, denunciation or appeal, will afford no ground for reversal.'" State v. Smith, 167 N.J. 158, 178 (2001) (quoting State v. Johnson, 31 N.J. 489, 510 (1960)). Additionally, the challenged remarks "were prompted by comments in the summation of defense counsel." State v. Smith, 212 N.J. 365, 403-04 (2012). VI. In Point V of his merits brief, Wilson argues that the trial court's denial of his request "to give the jury the Model Jury Instruction 'false in one, false in all' . . . was error" that 30 A-3357-14T2 denied him a fair trial. Wilson asserts that "[s]ince credibility of . . . [M.I.] was of such paramount importance to the jury and to the case[,]" and "[M.I.] gave varying versions of events and statements[,]" the "charge was necessary for a fair adjudication of the facts." We disagree. "[A]ppropriate and proper charges are essential for a fair trial." State v. Baum, 224 N.J. 147, 158-59 (2016) (quoting State v. Reddish, 181 N.J. 553, 613 (2004)). Jury instructions must give a "comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Id. at 159 (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). "[I]n reviewing any claim of error relating to a jury charge, the 'charge must be read as a whole in determining whether there was any error[.]'" State v. Gonzalez, 444 N.J. Super. 62, 70-71 (App. Div.) (quoting State v. Torres, 183 N.J. 554, 564 (2005)), certif. denied, 226 N.J. 209 (2016). The "false in one, false in all" charge instructs the jury that if they find any witness "willfully or knowingly testified falsely to any material facts in the case, with intent to deceive [them], [the jury] may give such weight to his or her testimony as [they] may deem it is entitled." Model Jury Charge (Criminal), "False in One-False in All" (2013). It has long been recognized, however, that the issuance of this charge rests within the sound discretion 31 A-3357-14T2 of the trial court. State v. Ernst, 32 N.J. 567, 583-84 (1960); State v. Fleckenstein, 60 N.J. Super. 399, 408 (App. Div. 1960) (noting that the evidential inference of repetitive falsity is not mandatory). Moreover, "inadvertent misstatements or immaterial falsehoods are not ground[s] for complete rejection of a witness'[s] testimony." State v. D'Ippolito, 22 N.J. 318, 324 (1956). Here, the trial court did not abuse its discretion in declining to give the "false in one, false in all" jury instruction. The inconsistencies in M.I.'s statements identified by defendant5 were not patently indicative of deliberate lying and, as the jury undoubtedly found, was not grounds for complete rejection of his testimony. Notably, M.I. never wavered on the most critical aspect of the incident, his description and identification of defendants as the robbers. Under these circumstances, the customary and comprehensive general jury instruction given by the court regarding evaluating a witness' credibility, including an assessment of whether any witness "testified with an intent to deceive you," sufficed. Model Jury Charge (Criminal), Criminal Final Charge "Credibility of Witnesses" (2014). 5 At trial, M.I. was extensively cross-examined on discrepancies in details provided to different police officers. 32 A-3357-14T2 VII. In Point I of his merits brief, Flagler argues that in addition to the Branch violations involving Detective Post that we previously addressed in Point III of Wilson's brief,6 Officers Redmond and Seals violated the strictures of Bankston by testifying that they stopped the Nissan on August 20 because they were informed it was involved in an armed robbery. Flagler asserts that, as a result, his "hearsay, confrontation, due-process and fair-trial rights were badly compromised, and his convictions must be reversed and the matter retried . . . ." Because Flagler did not object to the testimony at trial, we review his argument under the plain error standard. Under that standard, an error is reversible only if it was "clearly capable of producing an unjust result . . . ." R. 2:10-2. The error must have been "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). 6 Similar to his testimony regarding Wilson, Post testified that on August 21, 2012, he "read Seals' report . . . and found out there was a second occupant in the car when he arrested Darnell Wilson" on August 20, 2012. As a result, Post set up another photo array "for the second individual" because he matched the description provided by M.I. Our conclusion that the error was harmless in the circumstances of this case applies here as well. 33 A-3357-14T2 In Bankston, our Supreme Court held that an officer can testify that he or she approached a suspect or went to a crime scene based on "information received." 63 N.J. at 268. However, if the officer "conveys, directly or by inference, information from a non-testifying declarant to incriminate the defendant in the crime charged[,]" the testimony violates both the Confrontation Clause of the Sixth Amendment, U.S. Const. amend. VI, and the rule against hearsay. Branch, 182 N.J. at 350; see also Bankston, 63 N.J. at 268-69. Thus, under Bankston and its progeny, an officer cannot testify to specific details of the crime or imply that he or she received evidence of a defendant's guilt from a non-testifying witness. See State v. Luna, 193 N.J. 202, 216-17 (2007). Examining plain error in the Bankston context, hearsay testimony is prejudicial to the defendant when the State's case is tenuous. However, "when a case is fortified by substantial credible evidence—for example, direct identification of the defendant—the testimony is not likely to be prejudicial under the 'plain error' rule." State v. Irving, 114 N.J. 427, 448 (1989). Here, while M.I.'s testimony was undoubtedly the key to proving defendant's guilt, its reliability was established through independent evidence, namely, the discovery of a loaded handgun 34 A-3357-14T2 matching M.I.'s description on Flagler's person, thus nullifying any perceived Bankston prejudice. Moreover, unlike the testimony at issue in Bankston and Branch, the officers' testimony did not "permit[] the jury to draw the inescapable inference that a non-testifying declarant provided information that implicated" defendant in the commission of a crime, nor did it "suggest[] that some other person provided information that linked the defendant to the crime." Branch, 182 N.J. at 351. To the contrary, the officers' testimony suggested only what the jury already knew from M.I.'s testimony,7 that the police were searching for defendant and a green Nissan Altima implicated in the commission of an armed robbery. Accordingly, we conclude that admission of the challenged testimony did not lead the jury to a result it otherwise might not have reached. VIII. In Point II of his merits brief, Flagler argues that although the trial court excused Juror Eleven for reading a newspaper article about the case, the court's failure to "conduct[] a voir dire of the rest of the jury to determine if any of [them] . . . had actually been tainted by Juror Eleven's actions . . . violated his Sixth Amendment right to an impartial jury, his Fourteenth 7 At trial, M.I. was the first witness to testify for the State. 35 A-3357-14T2 Amendment right to due process and his corresponding state- constitutional rights." We disagree. Prior to the jury being sworn, defense counsel informed the court that there were on-line newspaper articles about the case and Flagler's "subsequent arrest" involving "a gun[.]" After noting that it was able to locate two articles online, the court addressed the jury as follows: Ladies and gentlemen, before we begin the proceedings for today, . . . I spoke to you before you left about the possibility of media coverage of the trial. I didn’t anticipate any, but apparently, [c]ounsel have indicated to me there has been some newspaper interest in the case and some articles have been written about it since the time we left. So I have to inquire as to whether or not any of you have, in fact, seen or read any of those articles or discussed the matter with anyone. Juror Eleven responded that she had read one of the articles but specified that she had not "discussed it with anybody." None of the remaining jurors indicated that they had read any of the articles or disputed Juror Eleven's assertion that she had not discussed the article with them. After questioning Juror Eleven individually, at counsel's request, the court excused Juror Eleven and instructed the remaining jurors: Ladies and gentlemen, I have had to excuse [Juror Eleven] because she did not comply with the [c]ourt's [o]rder respecting media coverage. There is always the potential for prejudice and it is your duty to the State 36 A-3357-14T2 or [d]efendant not to read any newspaper article because as I indicated to you earlier, they're often based on second or third hand information. They're based in large measure on hearsay [and] haven't been subjected to cross-examination as to the accuracy of the information. It has the potential to prejudice . . . both parties. Once again, I'm going to stress to you that it is critically important to your function that you completely avoid any newspaper . . . coverage of the trial or anyone discussing. This decision has to be made, as I indicated to you multiple times, has to be made based only on information you receive here in the courtroom. So, we are down to 13. If we drop below 12, we have to declare a mistrial and all of your time and everyone else's time was wasted. Please comply with that instruction. It is very, very important. Counsel did not object to the instruction or request the court to conduct any further voir dire of the remaining jurors. Thereafter, the jurors were sworn and the trial commenced. It is well-established that "[a] defendant's right to be tried before an impartial jury is one of the most basic guarantees of a fair trial." State v. Loftin, 191 N.J. 172, 187 (2007). "[I]f during the course of the trial it becomes apparent that a juror may have been exposed to extraneous information, the trial court must act swiftly to overcome any potential bias and to expose factors impinging on the juror's impartiality." State v. R.D., 169 N.J. 551, 557-58 (2001). However, a juror's exposure to 37 A-3357-14T2 outside influences does not necessarily mean that there must be a new trial, because it would be nearly impossible to guard against any and all outside influences that could potentially affect a juror's vote. Id. at 559. "Ultimately, the trial court is in the best position to determine whether the jury has been tainted." Ibid. Accordingly, our standard of review is abuse of discretion, the application of which "respects the trial court's unique perspective" and accords deference to the trial court "in exercising control over matters pertaining to the jury." Id. at 559-60. In State v. Bey, 112 N.J. 45 (1988), our Supreme Court established the standard for determining when a piece of potentially damaging external information may contaminate the jury: The presumption that jurors will faithfully adhere to the trial court's instructions regarding all facets of their role is not inviolate . . . . [In a publicity-laden trial] [a]nother alternative [to sequestration] is clear and definitive instructions to the jury not to read or listen to media reports of the trial and to decide the issues only on evidence presented in open court. Realistically, however, in many cases it would be difficult to conclude that a jury could avoid receiving such reports or that such 38 A-3357-14T2 instructions, no matter how forceful, would overcome prejudice to a defendant resulting from the jury learning of a confession or other evidence which the trial court had ruled was inadmissible. . . . Courts have agreed that publicity-related warnings may be inadequate when inherently prejudicial information has been released or published during a trial in such a manner as to render it likely that one or more of the jurors could have been exposed. [Id. at 81 (alterations in original) (quoting State v. Allen, 73 N.J. 132, 142 (1977)).] The Court established a two-part test to determine whether such information is potentially damaging to a defendant's constitutional rights. Id. at 84-87. First, "[t]he court should . . . examine the information disseminated to determine if it has the capacity to prejudice the defendant." Id. at 84. Second, [i]f the court is satisfied that the published information has the capacity to prejudice the defendant, [the court] should determine if there is a realistic possibility that such information may have reached one or more of the jurors. . . . Where the court concludes there is a realistic possibility that information with the capacity to prejudice defendant's right to a fair trial may have reached members of [the] jury, it should conduct a voir dire to determine whether any exposure has occurred. If there is any indication of such exposure or knowledge of extra-judicial information, the court should question those jurors individually in order to determine precisely what was learned, and establish whether they 39 A-3357-14T2 are capable of fulfilling their duty to judge the facts in an impartial and unbiased manner, based strictly on the evidence presented in court. [Id. at 86-87 (citations omitted).] In Bey, while acknowledging that the form of voir dire is discretionary, the Court noted that polling the jurors individually, in camera, is the most effective method to ensure juror truthfulness, and suggested that a court may want to "err on the side of caution" by conducting individual juror polling. Id. at 86 n.26, 89. However, in State v. Feaster, 156 N.J. 1, 53- 54 (1998), the Court found that the trial cou
Date: May 11, 2018
Docket Number: a3357-14 GOODEN BROWN, J.A.D. A Hudson County grand jury indicted defendants Tiwan Flagler and Darnell Wilson for first-degree armed robbery, N.J.S.A. 2C:15- 1 (count one); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count two); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count three); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four). Flagler was also indicted in two additional counts for second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count five); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count six). Following a joint jury trial, defendants were convicted on all counts.1 After appropriate 1 At the close of the State's case, the trial court granted Flagler's motion to dismiss count six pursuant to Rule 3:18-1. 2 A-3357-14T2 merger, Wilson was sentenced to an aggregate eighteen-year prison term, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Flagler was sentenced to an aggregate extended term of thirty years, subject to NERA. The convictions stemmed from defendants robbing a traveling salesman at gunpoint after luring him to a secluded location. The victim promptly reported the robbery to the police and provided a description of his assailants, who had been regular customers, as well as a description of the vehicle they were driving. A few days later, police conducted a motor vehicle stop of the suspect vehicle and apprehended the two occupants, who matched the victim's descriptions and were later identified as defendants. A handgun matching the victim's description was found on Flagler's person during the ensuing pat down. In these back-to-back appeals, which we now consolidate for purposes of this opinion, defendants appeal their convictions and sentences. Wilson raises the following arguments for our consideration: POINT I THE WARRANTLESS STOP AND SEARCH OF THE NISSAN AUTOMOBILE VIOLATED THE DEFENDANT'S RIGHT TO BE FREE FROM UNLAWFUL SEARCH AND SEIZURE GUARANTEED BY THE NEW JERSEY AND FEDERAL CONSTITUTIONS. 3 A-3357-14T2 POINT II MR. WILSON'S MOTION [TO] SEVER COUNTS FIVE AND SIX THAT RELATED ONLY TO . . . FLAGLER, SHOULD HAVE BEEN GRANTED. POINT III TESTIMONY OF DETECTIVE POST THAT BASED ON INFORMATION PROVIDED HE WENT TO [THE BUREAU OF CRIMINAL INVESTIGATIONS] TO OBTAIN DEFENDANT'S PHOTOGRAPH FOR A PHOTOGRAPH ARRAY WAS GROSSLY PREJUDICIAL AND DEPRIVED DEFENDANT OF A FAIR TRIAL. POINT IV CERTAIN COMMENTS MADE BY THE PROSECUTOR IN SUMMATION WERE GROSSLY PREJUDICIAL AND DEPRIVED DEFENDANT OF A FAIR TRIAL. POINT V IT WAS ERROR FOR THE TRIAL COURT TO DENY DEFENDANT'S REQUEST FOR A "FALSE IN ONE, FALSE IN ALL" CHARGE. POINT VI THE AGGREGATE SENTENCE IMPOSED UPON THE DEFENDANT OF EIGHTEEN (18) YEARS WITH 85% PAROLE INELIGIBILITY WAS EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED. (Not Raised Below). Flagler raises the following points for our consideration: POINT I THE BRANCH ERRORS, WHICH OCCURRED WHEN THE PROSECUTOR ELICITED FROM POLICE WITNESSES THAT THEY TOOK PARTICULAR ACTION IN THE CASE -- MOST NOTABLY ASSEMBLING PHOTO ARRAYS USED TO IDENTIFY THE DEFENDANT AND CODEFENDANT -- BASED UPON INADMISSIBLE HEARSAY EVIDENCE, i.e., UPON "INFORMATION RECEIVED," VIOLATED 4 A-3357-14T2 DEFENDANT'S RIGHTS AGAINST HEARSAY EVIDENCE AND HIS CONSTITUTIONAL RIGHTS TO CONFRONTATION, AND CONSTITUTES REVERSIBLE ERROR. (Partially Raised Below). POINT II WHEN A JUROR WAS DISMISSED AT THE BEGINNING OF THE TRIAL FOR READING NEWS COVERAGE ABOUT THE CASE, THE JUDGE COMMITTED PLAIN ERROR WHEN HE FAILED TO CONDUCT A VOIR DIRE OF THE REST OF THE JURY TO DETERMINE IF THE DISMISSED JUROR HAD CONVEYED ANY OF WHAT SHE READ TO THE OTHER JURORS. (Not Raised Below). POINT III THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE. After considering the arguments presented in light of the record and applicable law, we affirm. I. We recount the pertinent facts from the trial record. On August 10, 2012, M.I.2 was in Jersey City selling home theater and stereo systems out of his truck. Although he was operating without a license, M.I. purchased the systems wholesale from a manufacturer and sold them on the street for a profit. Defendants were two of M.I.'s repeat customers, having previously purchased from M.I. on multiple occasions. On the evening of August 10, M.I. agreed to meet Wilson and Flagler at the Gulf gas station on Route 440 and Duncan Avenue in Jersey City so that they could make a purchase. 2 We use initials to identify the victim to protect his privacy. 5 A-3357-14T2 According to M.I., defendants arrived in a green Nissan Altima that was being driven by Wilson. Flagler was the front seat passenger. After examining the goods in M.I.'s truck, Wilson offered to buy several items, and advised M.I. that a friend of his also wished to make a purchase. However, because Wilson's friend was supposedly still at work, M.I. agreed to follow Wilson to his friend's job. While enroute, they communicated by phone so that they would not get separated. When they arrived at a school parking lot, Wilson switched his story, explaining that his friend was now "at his house." Although apprehensive, M.I. continued to follow defendants to a residence on Van Nostrand Avenue. Upon arrival, both cars parked in the adjacent driveway, but there was no sign of Wilson's friend. Nonetheless, M.I. and defendants exited their respective vehicles and continued to negotiate prices for the goods. Flagler then asked M.I. to show him "how to connect a phone for your [MP3] to the back of the receiver." M.I. reached through the passenger side window of his truck to retrieve the MP3 wire to demonstrate. When he turned around, Flagler was pointing a gun in his face. Flagler slid the gun down into M.I.'s mid-section, pinning M.I. against the truck, and threatened M.I. stating, "[i]f you move . . . I don't give a f***, I'll blow it." Meanwhile, 6 A-3357-14T2 Wilson removed three home theater systems from M.I.'s truck and rifled through M.I.'s pockets, removing his cell phone and approximately twenty-one dollars in cash. When they returned to their vehicle to flee, M.I. pleaded with defendants to return his cell phone. Instead, Flagler pointed the gun out of the passenger side window towards M.I., prompting M.I. to duck behind his truck as defendants drove off. After defendants left, M.I. drove to a gas station to get directions to the closest police station because he was unfamiliar with the area. M.I. was directed to the Jersey City police station where he reported the robbery to Officer Ryan Macaluso. M.I. also provided descriptions of defendants, their vehicle, a partial license plate, and the gun used in the robbery. M.I. described his assailants as "two Black males, approximately five[-]foot seven . . . 200 pounds, both between [the] age of approximately 19 and 23[,]" one with a "crew cut" and the other with "dreadlocks." M.I. described their vehicle as a green four door "2000 Nissan Altima" bearing a license plate beginning with the letter B and ending with the letter L. He described the weapon as a "black colored revolver with white tape on the handle." Once M.I.'s report was filed, Detective Michael Post was assigned to investigate the case. 7 A-3357-14T2 Five days later, on August 15, 2012, Jersey City Police Officer Joseph Seals conducted a motor vehicle stop of a vehicle matching M.I.'s description being driven by a woman named Alexis Street. Based on information obtained during the stop, Post identified Wilson as a possible suspect and a six-person photo array, including Wilson's photograph, was prepared and presented to M.I. in a photo line-up identification procedure. As a result, M.I. positively identified Wilson as one of the robbers and Post issued a warrant for Wilson's arrest. Five days later, on August 20, 2012, Seals observed the same vehicle occupied by two males matching M.I.'s descriptions traveling north on Bergen Avenue. Seals along with three other officers, including Officer Ed Redmond, conducted another motor vehicle stop. After the stop, Seals approached the Nissan on the driver side and identified Wilson as the driver. Upon confirming that the arrest warrant issued by Post was active, Seals placed Wilson under arrest. Meanwhile, Redmond approached the Nissan from the passenger side and noted that both occupants were "breathing heavily," were "sweating" and "appeared nervous." Redmond observed a bulge on the left side of the passenger's waistline. Based on the location and the size of the bulge, Redmond suspected that it was a weapon and ordered the passenger, who was later identified as Flagler, out of the vehicle. After Flagler exited the vehicle, Redmond 8 A-3357-14T2 conducted a pat down and retrieved a loaded .380 caliber handgun with light colored tape on the handle from Flagler's waistline. Flagler was then placed under arrest. Redmond secured the gun by removing the magazine, which contained seven rounds, and clearing the chamber of one round.3 The following day, Post prepared a six-person photo array, including Flagler's photograph, and arranged for the array to be presented to M.I. in a photo line-up identification procedure. As a result, M.I. positively identified Flagler as the second robber. At trial, M.I. identified both defendants as the robbers and the handgun seized from Flagler as the gun used during the robbery. Following the guilty verdict, on February 6, 2015, the trial court granted the State's motion for an extended-term sentence, finding Flagler met the persistent offender criteria set forth in N.J.S.A. 2C:44-3(a). After merging counts two and four into count one, the court sentenced Flagler to thirty years' imprisonment, subject to NERA, on count one, and a concurrent ten-year term with a five-year period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6, each on counts three and five. As to Wilson, the court sentenced him to eighteen-years' imprisonment, subject to NERA, on count one and a concurrent ten-year term with 3 The State produced a firearms expert who testified that the handgun was operable. 9 A-3357-14T2 a five-year period of parole ineligibility on count three. A memorializing judgment of conviction was entered on March 23 and February 17, 2015, respectively, and these appeals followed. II. In Point I of his merits brief, Wilson contends the trial court erred in denying his pre-trial suppression motion. Wilson argues "the [c]ourt's denial of the motion on the grounds that the stop was justified because defendant was not wearing a seatbelt, that there was a warrant for [Wilson's] arrest and there was probable cause . . . was erroneous." We disagree. At the pre-trial suppression hearing conducted on November 19, 2013, Seals and Edmond testified consistent with their trial testimony. According to Seals, on August 15, 2012, when he pulled over Street because she was operating a vehicle matching the description of a vehicle involved in an armed robbery, she advised him that her boyfriend, Wilson, was the only other operator of the vehicle. After Seals provided this information to the detective bureau, a warrant was issued for Wilson's arrest. Five days later on August 20, 2012, when Seals observed the same vehicle occupied by two males fitting the description of the robbers, neither of whom were wearing a seat belt, he conducted a second motor vehicle stop. 10 A-3357-14T2 After the stop, as Seals approached the driver side of the vehicle, he noted that both occupants were breathing heavily as if they were nervous. Seals confirmed that the driver was, in fact, Wilson and that the warrant for his arrest was active. Meanwhile, after observing a bulge on the left side of the front seat passenger's waistline and the same nervous behavior detected by Seals, Edmond removed the passenger, later identified as Flagler, from the vehicle and conducted a pat down, resulting in the seizure of the loaded handgun. Following the hearing, the court found the officers credible and made factual findings consistent with their testimony. The court rejected Wilson's arguments, renewed on appeal, "that the stop of the motor vehicle for a seatbelt violation was merely a pretext utilized by the officers to stop the vehicle" and that "the officers did not have a heightened sense of danger sufficient to order the occupants to exit the vehicle." In denying the motion, the court stated: Whether or not the officers were more interested in investigating the armed robbery than the minor traffic violation is completely irrelevant with regard to the justification for the stop. It is beyond dispute that police officers may lawfully stop a motor vehicle for a violation of our motor vehicle laws. Here, the driver of the vehicle was operating the vehicle without a seatbelt, and that's a violation. Therefore, the stopping of the 11 A-3357-14T2 motor vehicle as a consequence of that violation was lawful. Even if that were not the case, the testimony here establishes, based upon the totality of the circumstances[,] that these officers had far more than merely a reasonable suspicion of criminal activity. There was at that time a warrant for the arrest of . . . Wilson. And both officers were aware of its existence. They were further aware of the allegations involving the use of a handgun in the robbery. They were aware of the descriptions provided of these defendants, as well as a detailed description of the vehicle, and these defendants and the vehicle matched those descriptions. The existence of the warrant, standing on its own, establishes that probable cause existed for the arrest of . . . Wilson. Since the vehicle stop was lawful and the officers were aware that the particular crime for which Wilson and the second man matching the physical characteristics of the vehicle's passenger were wanted . . . involved a handgun, when the officers observed a bulge in the passenger's waistband, I’m satisfied it was more than objectively reasonable for him to have a heightened sense of danger and lawful under the circumstances to require the occupants to exit the vehicle to enable him to conduct a protective search for a weapon. The search . . . conducted did not exceed the scope permitted for a limited protective search. Our Supreme Court has explained our standard of review of a trial court's ruling on a motion to suppress as follows: 12 A-3357-14T2 We are bound to uphold a trial court's factual findings in a motion to suppress provided those "findings are 'supported by sufficient credible evidence in the record.'" Deference to those findings is particularly appropriate when the trial court has the "opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy." Nevertheless, we are not required to accept findings that are "clearly mistaken" based on our independent review of the record. Moreover, we need not defer "to a trial . . . court's interpretation of the law" because "[l]egal issues are reviewed de novo." [State v. Watts, 223 N.J. 503, 516 (2015) (alteration in original) (citations omitted) (first quoting State v. Elders, 192 N.J. 224, 243-44 (2007); then quoting State v. Vargas, 213 N.J. 301, 327 (2013)).] Applying this standard, we discern no basis to disturb the judge's ruling. It is a well-established constitutional principle that "[m]otor vehicle stops are seizures for Fourth Amendment purposes." State v. Sloane, 193 N.J. 423, 429-31 (2008). "Under both the Fourth Amendment [of the United States Constitution] and Article I, Paragraph 7 [of the New Jersey Constitution], ordinarily, a police officer must have a reasonable and articulable suspicion that the driver of a vehicle, or its occupants, is committing a motor-vehicle violation or a criminal or disorderly persons offense to justify a stop." State v. Scriven, 226 N.J. 20, 33-34 (2016). Unless the totality of the circumstances 13 A-3357-14T2 satisfies the reasonable and articulable suspicion standard, the investigatory stop "is an 'unlawful seizure,' and evidence discovered during the course of an unconstitutional detention is subject to the exclusionary rule." Elders, 192 N.J. at 247 (quoting State v. Rodriguez, 172 N.J. 117, 132-33 (2002)). In determining the reasonableness of the police conduct, an objective test is used, "recognizing that raw, inchoate suspicion grounded in speculation cannot be the basis for a valid stop." Scriven, 226 N.J. at 34. Rather, "a reviewing court must assess whether 'the facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution in the belief that the action taken was appropriate.'" State v. Mann, 203 N.J. 328, 338 (2010) (quoting State v. Pineiro, 181 N.J. 13, 21 (2004)). The State bears the burden of proving "by a preponderance of the evidence that it possessed sufficient information to give rise to the required level of suspicion." State v. Amelio, 197 N.J. 207, 211 (2008). A pat-down of an occupant ordered from a car after an investigatory stop is a separate event that is also subject to constitutional scrutiny and must be evaluated under the standard enunciated in Terry v. Ohio, 392 U.S. 1 (1968). "[T]o justify a pat-down of an occupant once alighted from a vehicle, specific, articulable facts must demonstrate that a 'reasonably prudent man 14 A-3357-14T2 in the circumstances would be warranted in the belief that his safety or that of others was in danger.'" State v. Smith, 134 N.J. 599, 619 (1994) (quoting Terry, 392 U.S. at 27). "A 'hunch' forms an insufficient basis on which to conduct the uncomfortable and often embarrassing invasion of privacy that occurs in a pat- down of a person's body." Ibid. However, a bulge alone has been held sufficient to validate a protective pat-down. See Pennsylvania v. Mimms, 434 U.S. 106, 111-12 (1977); State v. Wanczyk, 201 N.J. Super. 258, 264 (1985) ("[o]nce defendant exited the car and the police observed the bulge in the left sleeve of defendant's jacket, the officers unquestionably had the right to conduct a frisk of the defendant under the principles pronounced in [Terry]."). "In this one respect, the Terry standard [to justify a pat-down] and the standard for ordering a passenger out of a car are the same." Smith, 134 N.J. at 619. Here, the trial court's finding that the totality of the circumstances justified an investigatory stop of the vehicle and a pat-down of Flagler was derived from Seals' and Edmonds' testimony, which the court accepted as credible. The court found that: (1) defendants and the vehicle matched the victim's descriptions of the armed robbers and the getaway vehicle, respectively; (2) an arrest warrant had been issued for Wilson; (3) police observed a motor vehicle violation by virtue of Wilson's 15 A-3357-14T2 operation of the vehicle without wearing a seat belt;4 (4) when the officers approached the vehicle, defendants appeared nervous; and (5) Edmonds observed a bulge on Flagler's waistline. We are satisfied that the trial court's findings are amply supported by the record. See State v. Stovall, 170 N.J. 346, 367 (2002) (noting even though nervousness may be normal, it "does not detract from the well-established rule that a suspect's nervousness plays a role in determining whether reasonable suspicion exists"). III. In Point II of his merits brief, Wilson argues the trial court erred in denying his pre-trial motion to sever counts five and six that related only to Flagler, and charged weapon possession offenses during the August 20 motor vehicle stop that occurred subsequent to the robbery. Specifically, Wilson contends that the two "Flagler counts . . . did not relate to him and a joint trial including those two counts would be grossly prejudicial." We disagree. At the pre-trial motion hearing conducted on November 5, 2014, the trial court denied Wilson's request for severance of counts five and six after rejecting his argument that the State's 4 N.J.S.A. 39:3-76.2f(a) provides, in pertinent part, that "each driver and front seat passenger of a passenger automobile operated on a street or highway in this State shall wear a properly adjusted and fastened safety seat belt . . . ." 16 A-3357-14T2 introduction of evidence from the August 20 motor vehicle stop, which resulted in the recovery of the handgun during the pat-down of Flagler, prejudiced his right to a fair trial. Based on the State's contention that the handgun involved in the August 5 armed robbery was the same gun recovered from Flagler during the August 20 pat-down, the court determined that [T]hese two incidents occurred very close in . . . time. The evidence of the possession of a firearm is certainly clear and convincing, and the prejudice to the defendant . . . is not overwhelming. The probative value is more significant than the prejudice to the defendant. So, I don't . . . find any reason why this evidence wouldn't be admissible at a joint trial in any event, so severance is not required . . . . The decision whether to deny defendant's motion to sever counts at trial "rests within the trial court's sound discretion and is entitled to great deference on appeal." State v. Brown, 118 N.J. 595, 603 (1990). Thus, the "[d]enial of such a motion will not be reversed in the absence of a clear showing of a mistaken exercise of discretion." State v. Krivacska, 341 N.J. Super. 1, 38 (App. Div. 2001). "[W]here the evidence establishes that multiple offenses are linked as part of the same transaction or series of transactions, a court should grant a motion for 17 A-3357-14T2 severance only when defendant has satisfied the court that prejudice would result." State v. Moore, 113 N.J. 239, 273 (1988). Because courts have recognized that any trial involving several charges "probably will involve some potential [prejudice], . . . other considerations, such as economy and judicial expediency, must be weighed" when deciding a severance motion. State v. Coruzzi, 189 N.J. Super. 273, 297 (App. Div. 1983). These interests may require that charges remain "joined for a single trial, so long as the defendant's right to a fair trial remains unprejudiced." Id. at 298 (citations omitted). Thus, "'the mere claim that prejudice will attach' is not sufficient to support a motion for severance[.]" Moore, 113 N.J. at 274 (quoting State v. Kent, 173 N.J. Super. 215, 220 (App. Div. 1980)). Rule 3:7-6, which governs the joinder of offenses, provides that [t]wo or more offenses may be charged in the same indictment . . . if the offenses charged are of the same or similar character or are based on the same act or transaction or on [two] or more acts or transactions connected together or constituting parts of a common scheme or plan. Under Rule 3:7-6, "[r]elief from prejudicial joinder shall be afforded as provided by [Rule] 3:15-2." Rule 3:15-2(b) provides that if it appears that a defendant is prejudiced by a joinder of "defendants in an indictment[,]" the court "may order an election 18 A-3357-14T2 or separate trials of counts, grant a severance of defendants, or direct other appropriate relief." In determining whether joinder is prejudicial, the critical inquiry is "whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges." State v. Chenique-Puey, 145 N.J. 334, 341 (1996) (alteration in original) (quoting State v. Pitts, 116 N.J. 580, 601-02 (1989)). Where evidence would be admissible at both trials, severance may be denied as "a defendant [would] not suffer any more prejudice in a joint trial than he would in separate trials." Ibid. (quotation omitted). Under N.J.R.E. 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute. "Evidence of conduct including other criminal acts of an accused, subsequent to the offense charged is admissible if it is probative of guilt." State v. Johnson, 287 N.J. Super. 247, 262 (App. Div. 1996). Here, the trial court correctly denied Wilson's severance motion because the evidence would have been admissible under 19 A-3357-14T2 N.J.R.E. 404(b) based on the State's position that the gun found on Flagler's person following the motor vehicle stop was jointly possessed by both Flagler and Wilson, and was the gun used to perpetrate the armed robbery for which Wilson was on trial. The offenses were therefore interrelated and probative of guilt. As the court correctly found, any prejudice to Wilson did not overwhelm the extreme probative value of the evidence relating to the charged offenses. Moreover, joinder was warranted in "[t]he interests of economy and efficiency . . . ." Coruzzi, 189 N.J. Super. at 298. See also State v. Urcinoli, 321 N.J. Super. 519, 543 (App. Div. 1999) (finding no abuse of discretion in denying the motion to sever in the absence of undue prejudice and acknowledging judicial economy). IV. In Point III of his merits brief, Wilson argues that Detective Post's testimony regarding "information received" and "'names' obtained" constituted inadmissible hearsay evidence. According to Wilson, Post's testimony "[c]oupled with reference to BCI which implied a prior criminal history," and the trial court's denial of his "request to crop [defendant's] photograph to eliminate the police identifiers so a juror could not lift the tape[,]" unfairly 20 A-3357-14T2 prejudiced him, and "[t]he trial court’s charge regarding police photos did not dissipate this prejudice." At trial, Post testified during his direct examination that on August 15, 2012, he received a report "regarding a car stop of a vehicle that matched" the robbery victim's description. Using the "name that was provided" in the report, Post "went to [the] Bureau of Criminal Investigations and --[.]" Before Post completed this sentence, Wilson's counsel objected and the following colloquy ensued: [WILSON'S COUNSEL]: I think we are getting into where he developed the photo array. I think he was about to open to he went to his Criminal Investigation Unit to get the pictures which is concerning – [THE COURT]: What is it you’re trying to get out, sir? [PROSECUTOR]: . . . He said he looked at pictures of the guy and matched, so he set up [a] photo array and asked [M.I.] to come in. [THE COURT]: Looked up a picture of what guy, it matched what? [PROSECUTOR]: . . . [L]ooked up a picture of . . . Wilson and matched the description provided by [M.I.], so he set up a photo array and called [M.I.] to come in. [THE COURT]: You are going to have to skip all of the preliminaries and get to the photo array because without Alexis Street testifying that she told them her boyfriend is Darnell 21 A-3357-14T2 Wilson, he uses the car, there is no connection between the two. You don’t have her, so everything he’s going to say is going to be hearsay. You can’t go there, but you can get to the point he sets up a photo array and asked him if he could identify him. [WILSON'S COUNSEL]: I don't have a problem if you lead him into that, you set up a photo array. [THE COURT]: Based on information received, set up photo array, lead to the identification of [Wilson], simple and clean. At that point, Flagler's counsel made the following request, which was joined by Wilson's attorney: [S]ince the Bureau of Criminal Identification has already been said by this Detective, [I request] that you instruct the jury to take no negative inference from him going there. It has nothing to do with anything related to this case. He said Bureau of Criminal Identification and it may be in the jury's head it has something to do with them in criminal activity. The court agreed and instructed the jury as follows: Ladies and gentlemen, a moment ago in the response, the witness indicated that there is some facility within the Jersey City Police Department called their Bureau of Identification or BCI, Bureau of Criminal Investigation or Identification, they're two different things and, you're to take no negative inference from the fact that a photograph or photographs may have been taken from there and utilized in this investigation. 22 A-3357-14T2 As I indicated to you previously, photographs come into possession of police departments in many different ways that are unconnected with any illegal activity or criminal activity on the part of a person. You're to draw no negative inferences from the fact that a photograph or photographs were obtained from the Bureau of Criminal Identification. There was no objection to the court's charge. Following the court's instruction, the State continued its direct examination of Post, inquiring whether Post set up a photo array "based on any information" obtained on August 15, 2012. Post responded in the affirmative and testified that after he set up the photo array containing a total of six photos, he contacted M.I. to come in and view the photographs. He arranged for an "independent [d]etective" to conduct the identification procedure, which resulted in a positive identification of Wilson as one of the robbers. After the photo array was admitted into evidence, Wilson's counsel noted that there was "a placard on those photos showing Jersey City mug shots." Counsel urged the court to "cut off" the placard so that "just [the] picture of the face" appears, rather than just covering the placard with masking tape. According to counsel, it would be "quite easy for a juror to peel that tape off and see what's behind there[,]" and "[w]hat's behind there is 23 A-3357-14T2 extremely prejudicial and has no probative value here." In denying defense counsel's request, the court stated: I gave [the jury] multiple instructions with respect to the photographs and the fact they're not to . . . draw any negative inferences from the fact that Jersey City [p]olice happen to have photographs of your clients. So I have done that at least three times. I am going to do it in the final instructions. I don't see any reason why the [c]ourt should believe they would not comply with that instruction and tamper with the evidence. I don't think that's appropriate. We first address Wilson's argument that Post's testimony regarding "information received" and "'names' obtained" constituted inadmissible hearsay. Because a defendant has a constitutional right to confront his accusers, statements made by non-testifying persons suggesting defendant is involved in unlawful conduct are excluded unless admissible on some other basis, and unless defendant had the opportunity for cross- examination. State v. Cabbell, 207 N.J. 311, 329-30 (2011) (citing Crawford v. Washington, 541 U.S. 36, 59 (2004)). Such statements must be excluded if they connect in some improper manner to the criminal prosecution in question. Id. at 329. In State v. Branch, 182 N.J. 338 (2005), an officer "testified that he included defendant's picture in a photographic array because he had developed defendant as a suspect 'based on information received.'" Id. at 342. He also testified to the 24 A-3357-14T2 out-of-court descriptions of a burglar given by "non-testifying child victims." Ibid. Our Supreme Court found the testimony to be "inadmissible hearsay that violated defendant's right of confrontation" because the source of the information was not called as a witness, and defendant had no opportunity to cross-examine. Ibid. The Court noted: When a police officer testifies concerning an identification made by a witness, . . . what counts is whether the officer fairly arranged and displayed the photographic array and whether the witness made a reliable identification. Why the officer placed the defendant's photograph in the array is of no relevance to the identification process and is highly prejudicial. For that reason, we disapprove of a police officer testifying that he placed a defendant's picture in a photographic array "upon information received." Even such seemingly neutral language, by inference, has the capacity to sweep in inadmissible hearsay. It implies that the police officer has information suggestive of the defendant's guilt from some unknown source. [Id. at 352-53 (citation omitted).] Here, these principles were clearly violated. Thus, we must now determine whether the trial court's admission of the detective's testimony constituted harmless error. Rule 2:10-2 directs reviewing courts to disregard "[a]ny error or omission . . . unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ." Known as the harmless 25 A-3357-14T2 error doctrine, the rule "requires that there be 'some degree of possibility that [the error] led to an unjust result.'" State v. R.B., 183 N.J. 308, 330 (2005) (alteration in original) (quoting State v. Bankston, 63 N.J. 263, 273 (1973)). As to the extent of error required for reversal, "[t]he possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached." Ibid. (second alteration in original) (quoting Bankston, 63 N.J. at 273). Unlike Branch, this was not "a close case." 182 N.J. at 353. Here, the State's evidence was overwhelming. The victim knew and identified both defendants from their prior encounters and a loaded handgun matching the victim's description was recovered from Flagler in a vehicle also matching the victim's description. In light of the total record, we are satisfied that the detective's hearsay testimony that he assembled a photo array based on "information" obtained and "the name provided" in the August 15, 2012 report did not lead the jury to a verdict it otherwise might not have reached. Next, we turn to Wilson's argument that Post's reference to BCI and the trial court's denial of his request to remove rather than cover the placard with masking tape unfairly prejudiced him despite the court's charge. References to a photograph as a "mug 26 A-3357-14T2 shot" or otherwise obtained from police sources, as here, have been found to be harmless error where they are solitary and fleeting, and accompanied by an appropriate cautionary instruction to the jury. See State v. Harris, 156 N.J. 122, 173 (1998) (holding that a witness' reference to mug shots was not plain error despite the absence of a curative instruction because the reference was "fleeting and came after testimony that defendant had been arrested"); State v. Porambo, 226 N.J. Super. 416, 425- 26 (App. Div. 1988) (holding that a detective's reference to the defendant's mug shots was not plain error because the judge gave a proper curative instruction and the reference was "fleeting and not subject to prolonged examination"). Here, we conclude that the reference to BCI was harmless error and the trial court's limiting instruction, substantially the same as the Model Jury Charge (Criminal), "Identity - Police Photos" (1992), was sufficient to cure any potential prejudice caused by Post's passing reference. We also conclude that because "identification [was] an issue" and the State's use of the photos in the photo array was "reasonably related to that issue," the photos were "admissible for that purpose" and were presented "in as neutral a form as possible . . . ." State v. Taplin, 230 N.J. Super. 95, 99 (App. Div. 1988). We therefore reject Wilson's 27 A-3357-14T2 contention that the court erred in denying his request to remove rather than cover the placard. V. In Point IV of his merits brief, Wilson argues that the prosecutor made "improper" comments during summation about "facts not in evidence" that "were unduly prejudicial and deprived [him] of a fair trial." Wilson asserts that although "[t]he trial court sustained the objection," "the improper conduct . . . was not ameliorated by the [c]ourt" because the court "did not strike the testimony or instruct the jury to disregard it." A defendant's conviction should only be reversed due to prosecutorial wrongdoing "where the . . . misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). While a prosecutor "in . . . summation may suggest legitimate inferences to be drawn from the record," a prosecutor "commits misconduct when [the summation] goes beyond the facts before the jury." Harris, 156 N.J. at 194. However, to warrant reversal, the misconduct "must have been 'clearly and unmistakably improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Timmendequas, 161 N.J. 515, 575 (1999) (quoting State v. Roach, 146 N.J. 208, 219 (1996)). In this regard, we consider three factors: "(1) whether 28 A-3357-14T2 defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Frost, 158 N.J. at 83. Here, defense counsel attacked M.I.'s credibility throughout his summation, among other things, focusing on incoming and outgoing telephone calls on M.I.'s cell phone on the day of and the day after the robbery, which defense counsel characterized as "a critical piece of information" in his attempt to discredit M.I. In response, the prosecutor stated to the jury: Now, this whole phone call business that . . . [d]efense [c]ounsel wants you to believe that [M.I.] made this call or received this phone call. Ladies and gentlemen, I asked . . . . M.I. about that phone call. I asked him prior to trial because our [o]ffice is here to search for the truth, okay. That's why he knew that question was coming because I asked him, our [o]ffice asked him straight and directly -- Defense counsel promptly objected to the prosecutor's remarks, the trial court sustained the objection and admonished the prosecutor "[y]ou may not testify." The prosecutor resumed his summation stating: Ladies and gentlemen, [M.I.] testified right here that he didn't call that phone call. I submit to you, that phone call was made by the [d]efendants to the phone number which they believe was of the phone that they still had the phone they had stolen from [M.I.], okay. 29 A-3357-14T2 While we agree with the trial court that the initial remarks were improper, we conclude that they did not substantially prejudice defendant's fundamental right to have the jury fairly evaluate the merits of his defense or compromise the jury's ability to fulfill its fact-finding function. Moreover, while the court did not strike the remarks from the record, it instructed the jurors that they were "the sole and exclusive judges of the evidence," and that "summations of [c]ounsel [were] not evidence and must not be treated as evidence." We presume the jurors followed the court's instructions. State v. Montgomery, 427 N.J. Super. 403, 410 (App. Div. 2012). Regarding the latter remarks, we are satisfied that those remarks were "based on the facts of the case and reasonable inferences therefrom," and "what is said in discussing them, 'by way of comment, denunciation or appeal, will afford no ground for reversal.'" State v. Smith, 167 N.J. 158, 178 (2001) (quoting State v. Johnson, 31 N.J. 489, 510 (1960)). Additionally, the challenged remarks "were prompted by comments in the summation of defense counsel." State v. Smith, 212 N.J. 365, 403-04 (2012). VI. In Point V of his merits brief, Wilson argues that the trial court's denial of his request "to give the jury the Model Jury Instruction 'false in one, false in all' . . . was error" that 30 A-3357-14T2 denied him a fair trial. Wilson asserts that "[s]ince credibility of . . . [M.I.] was of such paramount importance to the jury and to the case[,]" and "[M.I.] gave varying versions of events and statements[,]" the "charge was necessary for a fair adjudication of the facts." We disagree. "[A]ppropriate and proper charges are essential for a fair trial." State v. Baum, 224 N.J. 147, 158-59 (2016) (quoting State v. Reddish, 181 N.J. 553, 613 (2004)). Jury instructions must give a "comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Id. at 159 (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). "[I]n reviewing any claim of error relating to a jury charge, the 'charge must be read as a whole in determining whether there was any error[.]'" State v. Gonzalez, 444 N.J. Super. 62, 70-71 (App. Div.) (quoting State v. Torres, 183 N.J. 554, 564 (2005)), certif. denied, 226 N.J. 209 (2016). The "false in one, false in all" charge instructs the jury that if they find any witness "willfully or knowingly testified falsely to any material facts in the case, with intent to deceive [them], [the jury] may give such weight to his or her testimony as [they] may deem it is entitled." Model Jury Charge (Criminal), "False in One-False in All" (2013). It has long been recognized, however, that the issuance of this charge rests within the sound discretion 31 A-3357-14T2 of the trial court. State v. Ernst, 32 N.J. 567, 583-84 (1960); State v. Fleckenstein, 60 N.J. Super. 399, 408 (App. Div. 1960) (noting that the evidential inference of repetitive falsity is not mandatory). Moreover, "inadvertent misstatements or immaterial falsehoods are not ground[s] for complete rejection of a witness'[s] testimony." State v. D'Ippolito, 22 N.J. 318, 324 (1956). Here, the trial court did not abuse its discretion in declining to give the "false in one, false in all" jury instruction. The inconsistencies in M.I.'s statements identified by defendant5 were not patently indicative of deliberate lying and, as the jury undoubtedly found, was not grounds for complete rejection of his testimony. Notably, M.I. never wavered on the most critical aspect of the incident, his description and identification of defendants as the robbers. Under these circumstances, the customary and comprehensive general jury instruction given by the court regarding evaluating a witness' credibility, including an assessment of whether any witness "testified with an intent to deceive you," sufficed. Model Jury Charge (Criminal), Criminal Final Charge "Credibility of Witnesses" (2014). 5 At trial, M.I. was extensively cross-examined on discrepancies in details provided to different police officers. 32 A-3357-14T2 VII. In Point I of his merits brief, Flagler argues that in addition to the Branch violations involving Detective Post that we previously addressed in Point III of Wilson's brief,6 Officers Redmond and Seals violated the strictures of Bankston by testifying that they stopped the Nissan on August 20 because they were informed it was involved in an armed robbery. Flagler asserts that, as a result, his "hearsay, confrontation, due-process and fair-trial rights were badly compromised, and his convictions must be reversed and the matter retried . . . ." Because Flagler did not object to the testimony at trial, we review his argument under the plain error standard. Under that standard, an error is reversible only if it was "clearly capable of producing an unjust result . . . ." R. 2:10-2. The error must have been "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). 6 Similar to his testimony regarding Wilson, Post testified that on August 21, 2012, he "read Seals' report . . . and found out there was a second occupant in the car when he arrested Darnell Wilson" on August 20, 2012. As a result, Post set up another photo array "for the second individual" because he matched the description provided by M.I. Our conclusion that the error was harmless in the circumstances of this case applies here as well. 33 A-3357-14T2 In Bankston, our Supreme Court held that an officer can testify that he or she approached a suspect or went to a crime scene based on "information received." 63 N.J. at 268. However, if the officer "conveys, directly or by inference, information from a non-testifying declarant to incriminate the defendant in the crime charged[,]" the testimony violates both the Confrontation Clause of the Sixth Amendment, U.S. Const. amend. VI, and the rule against hearsay. Branch, 182 N.J. at 350; see also Bankston, 63 N.J. at 268-69. Thus, under Bankston and its progeny, an officer cannot testify to specific details of the crime or imply that he or she received evidence of a defendant's guilt from a non-testifying witness. See State v. Luna, 193 N.J. 202, 216-17 (2007). Examining plain error in the Bankston context, hearsay testimony is prejudicial to the defendant when the State's case is tenuous. However, "when a case is fortified by substantial credible evidence—for example, direct identification of the defendant—the testimony is not likely to be prejudicial under the 'plain error' rule." State v. Irving, 114 N.J. 427, 448 (1989). Here, while M.I.'s testimony was undoubtedly the key to proving defendant's guilt, its reliability was established through independent evidence, namely, the discovery of a loaded handgun 34 A-3357-14T2 matching M.I.'s description on Flagler's person, thus nullifying any perceived Bankston prejudice. Moreover, unlike the testimony at issue in Bankston and Branch, the officers' testimony did not "permit[] the jury to draw the inescapable inference that a non-testifying declarant provided information that implicated" defendant in the commission of a crime, nor did it "suggest[] that some other person provided information that linked the defendant to the crime." Branch, 182 N.J. at 351. To the contrary, the officers' testimony suggested only what the jury already knew from M.I.'s testimony,7 that the police were searching for defendant and a green Nissan Altima implicated in the commission of an armed robbery. Accordingly, we conclude that admission of the challenged testimony did not lead the jury to a result it otherwise might not have reached. VIII. In Point II of his merits brief, Flagler argues that although the trial court excused Juror Eleven for reading a newspaper article about the case, the court's failure to "conduct[] a voir dire of the rest of the jury to determine if any of [them] . . . had actually been tainted by Juror Eleven's actions . . . violated his Sixth Amendment right to an impartial jury, his Fourteenth 7 At trial, M.I. was the first witness to testify for the State. 35 A-3357-14T2 Amendment right to due process and his corresponding state- constitutional rights." We disagree. Prior to the jury being sworn, defense counsel informed the court that there were on-line newspaper articles about the case and Flagler's "subsequent arrest" involving "a gun[.]" After noting that it was able to locate two articles online, the court addressed the jury as follows: Ladies and gentlemen, before we begin the proceedings for today, . . . I spoke to you before you left about the possibility of media coverage of the trial. I didn’t anticipate any, but apparently, [c]ounsel have indicated to me there has been some newspaper interest in the case and some articles have been written about it since the time we left. So I have to inquire as to whether or not any of you have, in fact, seen or read any of those articles or discussed the matter with anyone. Juror Eleven responded that she had read one of the articles but specified that she had not "discussed it with anybody." None of the remaining jurors indicated that they had read any of the articles or disputed Juror Eleven's assertion that she had not discussed the article with them. After questioning Juror Eleven individually, at counsel's request, the court excused Juror Eleven and instructed the remaining jurors: Ladies and gentlemen, I have had to excuse [Juror Eleven] because she did not comply with the [c]ourt's [o]rder respecting media coverage. There is always the potential for prejudice and it is your duty to the State 36 A-3357-14T2 or [d]efendant not to read any newspaper article because as I indicated to you earlier, they're often based on second or third hand information. They're based in large measure on hearsay [and] haven't been subjected to cross-examination as to the accuracy of the information. It has the potential to prejudice . . . both parties. Once again, I'm going to stress to you that it is critically important to your function that you completely avoid any newspaper . . . coverage of the trial or anyone discussing. This decision has to be made, as I indicated to you multiple times, has to be made based only on information you receive here in the courtroom. So, we are down to 13. If we drop below 12, we have to declare a mistrial and all of your time and everyone else's time was wasted. Please comply with that instruction. It is very, very important. Counsel did not object to the instruction or request the court to conduct any further voir dire of the remaining jurors. Thereafter, the jurors were sworn and the trial commenced. It is well-established that "[a] defendant's right to be tried before an impartial jury is one of the most basic guarantees of a fair trial." State v. Loftin, 191 N.J. 172, 187 (2007). "[I]f during the course of the trial it becomes apparent that a juror may have been exposed to extraneous information, the trial court must act swiftly to overcome any potential bias and to expose factors impinging on the juror's impartiality." State v. R.D., 169 N.J. 551, 557-58 (2001). However, a juror's exposure to 37 A-3357-14T2 outside influences does not necessarily mean that there must be a new trial, because it would be nearly impossible to guard against any and all outside influences that could potentially affect a juror's vote. Id. at 559. "Ultimately, the trial court is in the best position to determine whether the jury has been tainted." Ibid. Accordingly, our standard of review is abuse of discretion, the application of which "respects the trial court's unique perspective" and accords deference to the trial court "in exercising control over matters pertaining to the jury." Id. at 559-60. In State v. Bey, 112 N.J. 45 (1988), our Supreme Court established the standard for determining when a piece of potentially damaging external information may contaminate the jury: The presumption that jurors will faithfully adhere to the trial court's instructions regarding all facets of their role is not inviolate . . . . [In a publicity-laden trial] [a]nother alternative [to sequestration] is clear and definitive instructions to the jury not to read or listen to media reports of the trial and to decide the issues only on evidence presented in open court. Realistically, however, in many cases it would be difficult to conclude that a jury could avoid receiving such reports or that such 38 A-3357-14T2 instructions, no matter how forceful, would overcome prejudice to a defendant resulting from the jury learning of a confession or other evidence which the trial court had ruled was inadmissible. . . . Courts have agreed that publicity-related warnings may be inadequate when inherently prejudicial information has been released or published during a trial in such a manner as to render it likely that one or more of the jurors could have been exposed. [Id. at 81 (alterations in original) (quoting State v. Allen, 73 N.J. 132, 142 (1977)).] The Court established a two-part test to determine whether such information is potentially damaging to a defendant's constitutional rights. Id. at 84-87. First, "[t]he court should . . . examine the information disseminated to determine if it has the capacity to prejudice the defendant." Id. at 84. Second, [i]f the court is satisfied that the published information has the capacity to prejudice the defendant, [the court] should determine if there is a realistic possibility that such information may have reached one or more of the jurors. . . . Where the court concludes there is a realistic possibility that information with the capacity to prejudice defendant's right to a fair trial may have reached members of [the] jury, it should conduct a voir dire to determine whether any exposure has occurred. If there is any indication of such exposure or knowledge of extra-judicial information, the court should question those jurors individually in order to determine precisely what was learned, and establish whether they 39 A-3357-14T2 are capable of fulfilling their duty to judge the facts in an impartial and unbiased manner, based strictly on the evidence presented in court. [Id. at 86-87 (citations omitted).] In Bey, while acknowledging that the form of voir dire is discretionary, the Court noted that polling the jurors individually, in camera, is the most effective method to ensure juror truthfulness, and suggested that a court may want to "err on the side of caution" by conducting individual juror polling. Id. at 86 n.26, 89. However, in State v. Feaster, 156 N.J. 1, 53- 54 (1998), the Court found that the trial cou
IN THE MATTER OF ROBERT ARMSTRONG DEPARTMENT OF HUMANS SERVICES DEVELOPMENTAL DISABILITIES
Date: May 10, 2018
Docket Number: a1659-16
Date: May 10, 2018
Docket Number: a1659-16
ANTOINE D. MINTER v. WILLIAM K. MATTSON
Date: May 10, 2018
Docket Number: a1916-15 PER CURIAM In these back-to-back appeals, which we consolidate for our opinion, we determine that the trial court properly exercised its concurrent jurisdiction, and correctly decided that plaintiff Antoine Minter, a kitchen worker, was acting in the course of covered employment under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -146, with respect to his employer, Friends Village at Woodstown, a continuing care retirement community (CCRC).1 However, we part company with the court's decision that Minter was also a special employee of an outside food service management contractor, Morrison Senior Dining, which the Village retained to supervise its dining operation. I. Minter was injured during a journey to work undertaken at the behest of his supervisors. It had been snowing since the previous night, and Minter's regular morning bus to work was not running. Minter called his supervisor, Dan Beggs, the executive chef, to say he would miss his early morning shift. That was a problem for 1 The CCRC is also identified as Friends Home at Woodstown. For convenience, we will refer to it as "the Village." 3 A-1916-15T4 the dining director, John Lear, because food service was essential, and the Village was short-staffed that day because of the snow. Lear came up with a plan to get Minter to work. At Lear's behest, Beggs told dining supervisor, William Mattson, to come in earlier than his 10:30 a.m. shift, and pick up Minter on the way.2 According to Minter, Mattson called, reported that Beggs said they both "had to come to work" and Beggs told him to pick up Minter. Minter accepted the ride. At that point, he believed he would be fired if he refused. Minter knew he was deemed an essential employee. Also, Beggs previously had given him a verbal warning for showing up late. Critical to the "special employer" issue, the Village had hired Morrison to manage its dining operations and its various dining-related employees. Lear and Beggs were Morrison's only employees on site at the Village. Morrison presented no evidence that Minter was aware that Lear and Beggs worked for an outside company. Minter received his paychecks from the Village, which hired him. Beggs was Minter's supervisor and controlled his work, although Minter, given his low-level position, took orders from 2 Minter and Mattson lived in the same town. Minter said that Mattson gave him a ride to work about twice a week. Mattson testified he only occasionally drove Minter home. In any event, it was undisputed that on the day of the accident, Mattson drove Minter at his employer's behest. 4 A-1916-15T4 others. Beggs reviewed Minter's performance, but the Village retained the power to fire or discipline him. It was still snowing as Mattson and Minter headed to work around 7:30 a.m. Travelling on a snow-and-ice-packed road, Mattson lost control of his car. It entered the path of an oncoming pick- up truck, which struck the passenger side of Mattson's vehicle. Minter suffered two broken legs, fractured ribs, and a deep laceration to his left arm. A few months after the accident, plaintiff filed suit against Mattson. After three amendments, he added the Village, Lear, Beggs, Morrison, and Manufacturers Alliance Insurance Company, the Village's workers' compensation insurer. Before Manufacturers was added, the Village and Mattson filed separate motions seeking summary judgment dismissal on the ground that Minter was acting within the course of his employment and his exclusive remedy was under the Compensation Act. Minter initially opposed the motion. The court deferred its decision pending Minter's deposition and the completion of discovery. In light of that discovery, Minter withdrew his opposition and filed a petition in the Division of Workers' Compensation. Manufacturers then asserted that Minter was not acting in the course of employment when the accident occurred. Minter secured permission to add Manufacturers as an indispensable party to the 5 A-1916-15T4 lawsuit, after contending that he risked inconsistent decisions in the two pending matters. Thereafter, the court decided several dispositive motions. The court denied Manufacturers' motion to dismiss the complaint and transfer the matter to the Division to determine whether Minter was acting within the course of employment when the accident occurred. Instead, the court held that it had concurrent jurisdiction to reach that threshold issue, which Mattson and the Village had raised in their renewed motions for summary judgment. At that point, Beggs, Lear, and Morrison had joined in the motion. The court held that Minter was acting within the course of employment. On that ground, the court dismissed the complaint, so Minter could pursue his exclusive remedy under the Compensation Act before the Division. The court denied Manufacturers' subsequent reconsideration motion. Several months later, upon a motion by Morrison, Lear, and Beggs, the court held that Morrison was a special employer, and that Minter's remedy against those three defendants lay under the Compensation Act. The court later denied Minter's motion for reconsideration. Manufacturers appeals (A-1916-15), contending the court lacked jurisdiction to decide, and then erroneously decided, the 6 A-1916-15T4 employment status issue. Minter appeals (A-0022-16) from the court's determination that he was Morrison's special employee.3 II. We first consider Manufacturers' jurisdictional argument. Manufacturers contends the court should have dismissed the claim against it, because the Division has "primary jurisdiction over plaintiff's employment status." The doctrine of primary jurisdiction applies "'when a case is properly filed in the Superior Court but the court declines original jurisdiction, referring specific issues to the appropriate administrative body.'" Estate of Kotsovska, ex rel. Kotsovska v. Liebman, 221 N.J. 568, 588 (2015) (quoting Magic Petroleum Corp. v. Exxon Mobil Corp., 218 N.J. 390, 405 (2014)). Manufacturers does not argue the trial court lacked the power to decide whether Minter was acting in the course of employment.4 3 We granted Manufacturers' motion for leave to appeal. But, we ultimately delayed argument, so its appeal could be heard back- to-back with Minter's appeal. 4 Manufacturers' point heading states, "THE TRIAL COURT SHOULD HAVE HELD THE WORKERS COMPENSATION COURT HAS PRIMARY JURISDICTION OVER PLAINTIFF'S EMPLOYMENT STATUS." We recognize that Manufacturers' argument then begins with the statement, "Generally, the Workers' Compensation Court has primary and/or the exclusive jurisdiction of all claims for workers' compensation benefits." (Emphasis added). However, we may "confine our address of the issues to those arguments properly made under appropriate point headings." Almog v. Israel Travel Advisory Serv., Inc., 298 7 A-1916-15T4 The Supreme Court has held, "'Despite the exclusivity of the workers' compensation remedy, the Superior Court has jurisdiction to determine the existence of the employment relationship and such other employment issues as are raised by way of defense to the employee's tort action.'" Kotsovska, 221 N.J. at 587 (quoting Pressler & Verniero, Current N.J. Court Rules, cmt. 42.1 on R. 4:5-4 (2014)). The Supreme Court distinguished between whether jurisdiction exists, and whether the court should exercise it. The Court stated, "Having determined the Superior Court had jurisdiction, we next consider whether . . . the trial court erred in declining to transfer plaintiff's claim to the Division under the doctrine of primary jurisdiction." Id. at 587-88. In essence, Manufacturers contends the trial court erred by failing to stay its hand. That was a discretionary decision. Id. at 588. We may disturb it on appeal only if it was "made without a rational explication, inexplicably departed from established practices, or rested on an impermissible basis." Ibid. (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)). N.J. Super. 145, 155 (App. Div. 1997). Furthermore, aside from its qualified reference to exclusive jurisdiction, Manufacturers' argument only addresses the doctrine of primary jurisdiction. 8 A-1916-15T4 The Supreme Court has applied a four-part test for ascertaining whether a court should apply the primary jurisdiction doctrine: 1) whether the matter at issue is within the conventional experience of judges; 2) whether the matter is peculiarly within the agency's discretion, or requires agency expertise; 3) whether inconsistent rulings might pose a danger of disrupting the statutory scheme; and 4) whether prior application has been made to the agency. [Ibid. (quoting Magic Petroleum, 218 N.J. at 407.] Applying those factors, we discern no abuse of discretion. First, the issue whether a person has acted within the course of employment is not outside a judge's conventional experience. "[A] workers' employment status is a matter that is often determined by trial judges and juries." Ibid. We recognize that whether a person is an employee (as distinct, say, from an independent contractor) is different from whether that employee was acting in the course of his or her employment – the issue in this case. However, a court is equally well-equipped to resolve either question. See, e.g., Kasper v. Bd. of Trs. of the Teachers' Pension & Annuity Fund, 164 N.J. 564, 573 (2000) (determining whether an employee was disabled as a "direct result of a traumatic event occurring during and as a result of the performance of his [or her] regular or assigned duties"); see also 9 Lex K. Larson, 9 A-1916-15T4 Larson's Workers' Compensation § 102.06 (Mathew Bender Rev. Ed. 2017) (describing as a "very questionable distinction" a court's determination that it had jurisdiction over employment status but not course of employment). The Division certainly has a wealth of experience addressing course-of-employment issues. But, if the facts are not genuinely disputed, the case calls for a legal determination that is not within the agency's peculiar expertise. See 9 Larson, § 102.06 (suggesting board priority except in those cases "in which the facts are so one-sided that the issue is no longer one of fact but one of law").5 Furthermore, the determination of a legal issue is not a discretionary decision. As for the third factor, had the trial judge stayed her hand, there would have been a risk of inconsistent rulings. We recognize that the Court in Kotsovska perceived no such risk because the petitioner had not filed a petition with the Division. 221 N.J. at 591. By contrast, Minter belatedly did. Nonetheless, only the court had the authority to force resolution of the issues as to all parties, particularly Minter's 5 Notably, an appellate court will defer to the factual findings of the Judge of Workers' Compensation, see Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 163-64 (2004), but exercise de novo review of his or her legal rulings, see Sentinel Ins. Co. v. Earthworks Landscape Constr., LLC, 421 N.J. Super. 480, 485-86 (App. Div. 2011). 10 A-1916-15T4 alleged co-employees, Mattson, Beggs, and Lear. Although Morrison could have intervened as of right in the Division proceeding against the Village, see Kristiansen v. Morgan, 153 N.J. 298, 311 (1998) (stating alleged special employer may intervene as of right), and Minter was entitled to join Morrison, N.J.A.C. 12:235- 3.6, the co-employees' participation in the Division proceeding was up to them. A co-employee may permissively intervene in a Division proceeding, but the "[c]hoice will remain with the claimed co-employee to refuse to intervene." Wunschel v. City of Jersey City, 96 N.J. 651, 666 (1984); see also Kristiansen, 153 N.J. at 310-11 (stating "[t]he Division acquires jurisdiction over a fellow employee only if he or she elects to voluntarily submit to the [Division's] jurisdiction"). Had the court stayed its hand in the Division's favor, the co-employees' status could have returned to the court, risking a result at odds with the Division's decision as to the Village and Morrison. Fourth, there was no prior application made to the agency. We presume this factor promotes an interest in conserving judicial and agency resources. A court should be more willing to stay its hand if the agency has already started adjudicating the dispute. Here, Minter first turned to the court to resolve his claim. The Village raised the defense that Minter's claim was barred by the Compensation Act. The court declined to rule on an initial round 11 A-1916-15T4 of dispositive motions concerning the Compensation Act; the parties thereafter engaged in extensive discovery; and only then did Minter, apparently protectively, file his workers' compensation petition. Manufacturers has presented no evidence that the Division's case had progressed beyond the initial petition and answer, when the court granted summary judgment. In sum, the four factors did not compel the trial court to yield to the Division's primary jurisdiction. The doctrine is intended to achieve two goals: "to (1) 'allow an agency to apply its expertise to questions which require interpretation of its regulations,' and (2) 'preserve uniformity in the interpretation and application of an agency's regulations.'" Nordstrom v. Lyon, 424 N.J. Super. 80, 99 (App. Div. 2012) (quoting Muise v. GPU, Inc., 332 N.J. Super. 140, 159, 160 (App. Div. 2000)). Referring the course-of-employment issue to the Division would not have substantially furthered those goals. III. We also discern no error in the court's determination that Minter was acting in the course of his employment when the accident occurred. We review the trial court's grant of summary judgment de novo, applying the same standard as the trial court under Rule 12 A-1916-15T4 4:46-2(c). Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 329-30 (2010).6 We first review the governing legal principles. The Compensation Act provides an exclusive remedy for injuries sustained in an "accident arising out of and in the course of employment . . . ." N.J.S.A. 34:15-7. Generally, the Compensation Act covers accidents on the employer's premises. "Employment shall be deemed to commence when an employee arrives at the employer's place of employment to report for work and shall terminate when the employee leaves the employer's place of employment . . . ." N.J.S.A. 34:15-36. This so-called "premises rule" generally bars compensation for accidents during a worker's travel to and from work. Zelasko v. Refrigerated Food Express, 128 N.J. 329, 336 (1992).7 6 Our review is hampered by Manufacturers' failure to comply with Rule 2:6-1(a)(1), which requires submission, on an appeal from a summary judgment, "a statement of all items submitted to the court on the summary judgment motion," and inclusion of all such items other than briefs, unless permitted by Rule 2:6-1(a)(2). 7 The statute provides exceptions when the employer requires the employee "to be away from the employer's place of employment"; the employer pays an employee "travel time . . . for time spent traveling to and from a job site"; or the employee uses an "employer authorized vehicle" for travel to and from "a job site." N.J.S.A. 34:15-36. We need not explore the limits of these exceptions, as the parties do not contend they apply. 13 A-1916-15T4 However, the Supreme Court has recognized an exception to the rule. The Supreme Court has held that "when an employer directs or requires an employee to undertake an activity, 'that compulsion, standing alone, brings an activity that is otherwise unrelated to work within the scope of employment.'" Sager, 182 N.J. at 163 (quoting Lozano v. Frank Deluca Constr., 178 N.J. 513, 532 (2004)). To prove compulsion, "the injured employee must establish that he or she engaged in the activity based on an objectively reasonable belief that participation was required." Lozano, 178 N.J. at 518. "Whether an employee's belief is objectively reasonable, will depend largely on the employer's conduct . . . ." Id. at 534. The Court identified a non-exclusive list of factors relevant to the determination: whether the employer directly solicits the employee's participation in the activity; whether the activity occurs on the employer's premises, during work hours, and in the presence of supervisors, executives, clients, or the like; and whether the employee's refusal to attend or participate exposes the employee to the risk of reduced wages or loss of employment. [Id. at 534.] An employee's subjective impression of compulsion alone is not sufficient. Id. at 534-35. 14 A-1916-15T4 The trial court concluded that under the Sager-Lozano "compelled activity" exception, Minter was engaged in the course of employment. We agree. Certainly, the compelled activities in Lozano and Sager differ from the compelled activity in Minter's case. In Lozano, the employer alleged he was compelled to drive a go-kart at the premises of the employer's customer, and was injured while doing so. 178 N.J. at 517. In Sager, the employee was compelled to travel away from a construction work site to take a meal, and was injured on his return. 182 N.J. at 158. The Court highlighted the recreational and social nature of those types of activities, stating, "when an employer compels an employee's participation in an activity generally viewed as recreational or social in nature, the employer thereby renders that activity work-related as a matter of law." Lozano, 178 N.J. at 518. By contrast, Minter was injured during a journey to work at his usual workplace. He was not engaged in a recreational or social activity. Yet, the Court did not limit its holding to only activities that would "ordinarily be considered recreational or social in nature . . . ." Lozano, 178 N.J. at 531. Rather, the Court referred more generally to "an activity that is otherwise unrelated to work . . . ." Id. at 532. Notably, Sager did not suffer his injury at the compelled "social activity" – the meal. 15 A-1916-15T4 He was injured during the journey back from the meal. Based on that initial compulsion, his injury was determined to have occurred during the course of employment.8 The key is whether an employer compelled the employee's participation. In one sense, travel to and from work is always compelled. Employers set work schedules and employees are generally expected to comply. Those who do not comply usually risk losing their jobs. But, the compulsion in Minter's case was specific and exceptional. Minter had already called out for the day. Thus, if he could establish that his employer compelled his non-work- related activity – the journey to work in a co-worker's vehicle on a day he had already announced he would not work – the accident would be covered.9 8 Initially, Sager was headed back to the New York job site, where he was working a longer day than usual because the bridges and tunnels to New Jersey were closed on September 11, 2001. During the trip from the diner, the bridges were opened, and Sager's supervisor and driver decided to convert the trip from one destined to work, into one destined for home. Sager, 182 N.J. at 159-61. 9 Employment also commences during travel when an employer requires an employee "to travel in a ridesharing arrangement as a condition of employment." N.J.S.A. 34:15-36. "Ridesharing" includes "carpools." Ibid. Arguably, Minter was so compelled to carpool to work with Mattson. The same legislation that added the ridesharing provision to the Compensation Act – the New Jersey Ridesharing Act of 1981 – defined "car pool" to mean "two or more persons commuting on a daily basis to and from work by means of a vehicle with a seating capacity of nine passengers or less." See L. 1981, c. 413, § 3. There is no evidence that Mattson and Minter 16 A-1916-15T4 Turning to the factual record, we reject Manufacturers' contention that there remained a genuine issue of material fact as to whether Minter was compelled to travel to work the day of the snowstorm. Minter had an objectively reasonable belief that his presence at work was compelled. "When an employer directly commands an employee to engage in an activity, it is axiomatic that the employee has been compelled." Lozano, 178 N.J. at 534. According to Minter, Mattson told him that Beggs said that he had to come in during the snowstorm. Even if Beggs did not give a direct order to Minter to come in, Minter had an objectively reasonable belief that his appearance was compelled. Beggs and Mattson "directly solicit[ed]" Minter's travel to work in the snow on a day he had already called out. See ibid. Beggs and Mattson testified that Minter was asked, not expressly ordered, to come in. Mattson testified that Beggs "asked me if I could give [Minter] a ride to work." And Beggs testified that he "asked . . . Mr. Minter . . . if he can come in if [Mattson] picked him up. And he said yes." After Beggs secured Mattson's commuted together daily. However, the Ridesharing Act did not include the definition of "carpool" in Title 34, although it did include the definition of "ridesharing." See L. 1981, c. 413, § 6. As the parties did not raise the ridesharing provision, we simply note it without deciding whether it would serve as an alternative basis for finding coverage under the Compensation Act. 17 A-1916-15T4 cooperation, Beggs testified that he called Minter again and said, "'[Mattson]'s going to pick you up. And he said okay.'" Despite his supervisor's testimony that Minter may have had a choice in the matter, the record evidence establishes Minter had an objectively reasonable belief that he was required to accept Mattson's ride and show up for work in the snowstorm. Minter's refusal would have "expose[d] [him] to the risk of . . . loss of employment." Ibid. "[C]onsidering the imbalance of power between the employer and employee, we cannot ignore the reality that indirect pressure on an employee can be as powerful as an explicit order." Ibid.; see also Sager, 182 N.J. at 166-67 (noting employees' sense of obligation to comply with supervisor's requests). It is ultimately not material whether Beggs directed or "asked" Minter to come into work. Nor does it matter that there was no written policy that he would be fired if he did not. Minter understood that he was an essential employee, like all other kitchen staff members. He was so informed when he was hired. Beggs and Lear confirmed that in their depositions. The Village residents had to be fed. Beggs stated that "all hands [were to be] on deck in emergencies" like the snowstorm the day of the accident. Once Beggs secured a ride to work for Minter, he had no justifiable excuse for refusing. Beggs admitted that if Minter 18 A-1916-15T4 refused, he would have referred the matter to Human Resources. Minter said he believed he would have been fired if he refused. It was a reasonable belief. In sum, Minter was injured in the course of his employment, despite the fact that he was not yet at his employer's premises, because his employer had compelled his travel to work with a co- worker on a day he had already informed his employer he was not going to come in. IV. We now turn to the trial court's determination that Morrison was Minter's special employer. Minter argues that Morrison was not his special employer because he was unaware that Beggs and Lear worked for Morrison; the Village paid him and exercised ultimate control over his hiring and firing; and his duties were separate from those of the Morrison employees.10 We agree there is insufficient evidence to conclude Morrison was Minter's special employer. 10 Although Minter included in his notice of appeal the court's denial of his motion for reconsideration, he did not address the point in his brief on the merits. Minter thereby waived the argument that the motion for reconsideration was wrongly decided. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) (stating that "[a]n issue not briefed on appeal is deemed waived"). Minter's effort to raise the issue in reply is ineffective. See Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J. Super. 590, 596 (App. Div. 2001) (stating it is improper to raise an issue for the first time in a reply brief). 19 A-1916-15T4 A. An employee can have two employers under workers' compensation, both of whom may enjoy the benefit of the Compensation Act's exclusive remedy. Walrond v. Cty. of Somerset, 382 N.J. Super. 227, 234 (App. Div. 2006); Blessing v. T. Shriver and Co., 94 N.J. Super. 426, 429-30 (App. Div. 1967). The doctrine has often been applied where an employee of one company was "lent" to a second company. Walrond, 382 N.J. Super. at 234-35. The employer of a building trades worker may assign its employee to work at a construction site under the control of a second company. See, e.g., Volb v. G.E. Capital Corp., 139 N.J. 110, 116-17 (1995); Santos v. Standard Havens, Inc., 225 N.J. Super. 16, 18-21 (App. Div. 1988). Or an employee of a staffing company may be assigned to work for – and submit to the control of – the staffing company's client. See, e.g., Kelly v. Geriatric & Med. Servs., Inc., 287 N.J. Super. 567, 578 (App. Div.) (holding that geriatric facility was special employer of nurse assigned to it by staffing agency), aff'd o.b., 147 N.J. 42 (1996); Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 405 (App. Div. 1988) (holding that Tiffany was special employer of holiday season packing department worker assigned to it by personnel agency). 20 A-1916-15T4 Whether a second company is considered a worker's "special employer" subject to the Compensation Act depends on a non- exclusive list of five factors: (1) the employee has made a contract of hire, express or implied, with the special employer; (2) the work being done by the employee is essentially that of the special employer; (3) the special employer has the right to control the details of the work; (4) the special employer pays the employee's wages; and (5) the special employer has the power to hire, discharge or recall the employee. [Kelly, 287 N.J. Super. at 571-72.] Although the Supreme Court affirmed Kelly, which articulated the five-factor test, the Court has also described the special employer test as consisting of only the first three factors. See Volb, 139 N.J. at 116. Those three factors constitute the test articulated by Professor Larson. See 5 Larson, § 67.01; Blessing, 94 N.J. Super. at 430 (quoting Larson's three-factor test). We therefore surmise that the fourth and fifth factors are secondary to the first three. There is some uncertainty as to whether all five factors must be established. The panel in Walrond stated, "No single factor is 'necessarily dispositive, and not all five must be satisfied 21 A-1916-15T4 in order for a special employment relationship to exist.'" 382 N.J. Super. at 236 (quoting Marino v. Ind. Crating Co., 358 F.3d 241, 244 (3d Cir. 2004)). The federal court in Marino relied on Blessing, which stated, "'The rules and tests are not so hard and fast and inexorable that they must be present and controlling en masse in every case before the employment relationship, as defined and contemplated by the statute, can be declared.'" 94 N.J. Super. at 434 (quoting Long v. Sims Motor Transport Lines, 117 N.E.2d 276, 278 (Ind. App. Ct. 1954)). On the other hand, the Supreme Court in Volb quoted the Larson formulation, which lists the three factors in the conjunctive and states that a special employer is liable under the Compensation Act "'only if'" all three factors are met. Volb, 139 N.J. at 116 (quoting Blessing, 94 N.J. Super. at 430 (quoting 1A Arthur Larson, Workmen's Compensation § 48.00 (1966)). We also have adopted Larson's "only if" formulation, specifically finding that factor one — a contract of hire — was "essential." Murin v. Frapaul Const. Co., 240 N.J. Super. 600, 607-08 (App. Div. 1990). We explained, "An employee's consent is required because the employee loses certain rights along with those he gains when he enters a new employment relationship." Id. at 608.11 11 Murin echoed Larson's reasoning: 22 A-1916-15T4 The Supreme Court has expressly stated that "the most important factor in determining a special employee's status is whether the borrowing employer had the right to control the special employee's work . . . ." Volb, 139 N.J. at 116; see also Blessing, 94 N.J. Super. at 430-31 (stating that "[t]he sheer weight of authority is undoubtedly on the side of 'control'"). However, the Court also has recognized – in a case not involving special employers – that the nature of the work, as opposed to control, may be a more important factor in establishing an employment relationship under the Compensation Act. See Kotsovska, 221 N.J. at 593-94. As we highlighted in Walrond, the "special employer" analysis must remain tethered to the terms of the Compensation Act, which makes financial consideration an essential element of the covered employment relationship. The statute defines an "employee" as "synonymous with servant, and includes all natural persons . . . who perform service for an employer for financial consideration The need for a contract to hire in the lent employee situation is based on the fact that the employee loses certain rights along with those gained when striking up a new employment relation. Most important of all, he or she loses the right to sue the special employer at common law for negligence . . . . [5 Larson, § 67.02.] 23 A-1916-15T4 . . . ." 382 N.J. Super. at 238 (quoting N.J.S.A. 34:15-36). Such consideration may be indirect, as is typical of lent employment situations, where the borrowing employer pays the lending employer, who then pays the worker. Id. at 237-38. Whether direct or indirect, "[s]ervice performed in exchange '"for financial consideration" is a cardinal legal requirement in [workers'] compensation for the creation of the status of employer and employee.'" Id. at 238 (quoting Goff v. Cty. of Union, 26 N.J. Misc. 135, 138 (Dept. Labor 1948)). In Walrond, we rejected a claim that a county police academy was a municipal police officer's special employer because the academy did not directly or indirectly pay the officer for his week-long teaching stint at the academy. 382 N.J. Super. at 240- 41. We concluded that the officer was a volunteer, and was not subject to the Compensation Act's exclusivity provision. Thus, he was entitled to prosecute a negligence claim against the academy. Ibid. B. Applying these principles, we are unpersuaded that Morrison has met its burden to establish that Minter was its special employee. See Drake v. Cty. of Essex, 192 N.J. Super. 177, 179- 80 (App. Div. 1983) (stating that "burden of proving" a plaintiff's eligibility for workers' compensation rests upon the defendant who 24 A-1916-15T4 is "asserting the affirmative defense of an exclusive remedy under workers' compensation"). We begin with the "financial consideration" factor, which we viewed in Walrond as a threshold statutory requirement. Morrison has failed to demonstrate that it provided any financial consideration, directly or indirectly, to Minter. It was undisputed that the Village paid Minter's wages. There is no record evidence that Morrison was the indirect source of those wages. In the usual case, as we have discussed, the special employer pays the general or lending employer, which then pays the worker. See Walrond, 382 N.J. Super. at 237-38. In this case, the flow of money is reversed. The Village, Minter's general employer, paid Morrison for its managerial services and also paid Minter directly for his employment. Thus, Morrison failed to satisfy a statutory prerequisite of an employment relationship under the Compensation Act. Even if we put aside the "financial consideration" factor, Morrison's claim falls short. Turning to the first of the three special employment factors, Morrison failed to establish that Minter had an express or implied contract for hire with Morrison. Essential to the contract is consent. See Murin, 240 N.J. Super. at 607-08 (emphasizing the importance of consent requirement and whether the employee understood he or she would be subject to 25 A-1916-15T4 second employer's direction); Blessing, 94 N.J. Super. at 436 (stating that "a showing of a deliberate and informed consent by the employee" is required before an implied contract can be found); 6 Larson, § 67.02 (stating that "most courts have required a showing of a deliberate and informed consent by the employee"). In the typical employment lending situation, the lent employee does not enter into an express contract of hire. But, one is often implied because the employee voluntarily accepts his or her general employer's assignment to the distinct premises of the special employer. See Kelly, 287 N.J. Super. at 574-75 (finding implied contract for hire where nurse accepted assignment to geriatric facility); Antheunisse, 229 N.J. Super. at 404 (finding an implied contract for hire where lent employee knew she was hired out to Tiffany; she could have refused the assignment; but she voluntarily reported to work at Tiffany and thereafter accepted Tiffany's direction and control). However, even where a general employee is assigned to another site, a contract for hire is not automatically implied. For example, in Blessing, we declined to find a contractual relationship between a security guard and the company that hired the guard's security firm. 94 N.J. Super. at 436. We found "nothing in the record upon which to predicate a finding of 26 A-1916-15T4 knowledgeable consent or a fair inference that an employment relationship between those parties existed." Ibid. Here, Morrison has failed to establish that Minter had any knowledge that Morrison, as a distinct entity, even existed. Notably, Morrison was not located at a separate location that might have triggered an awareness of another employer. Rather, Morrison's direct employees, Lear and Beggs, were integrated into the fabric of the Village workplace. In sum, Morrison failed to prove Minter's knowing and voluntary consent. Therefore, Morrison failed to establish an express or implied contract of hire. If we accept the principle that Morrison may be deemed a special employer "only if" it satisfies all three factors, then Morrison's claim of special employer status must fail on this ground as well. However, assuming for argument's sake that no single factor is dispositive, the remaining factors do not tip the balance in Morrison's favor. Turning to factor two, Minter's work was no more the work of Morrison than it was the work of the Village. While Morrison was contractually bound to manage the Village's dining services, the Village was independently responsible to its residents to provide meals. Minter's role was deemed essential to that work. 27 A-1916-15T4 Factor three does not clearly favor a finding that Morrison was a special employer. While Morrison, through Beggs and Lear, provided Minter's day-to-day supervision and therefore may have controlled his work, the Village retained the right to hire and terminate its kitchen employees like Minter, and to set the terms of their employment. Indeed, Beggs admitted that if Minter failed to appear for work the day of the accident, he would have referred the issue to the Village's human resources department to determine appropriate disciplinary action. Finally, the fourth and fifth factors disfavor a finding of special employment. Morrison did not pay Minter's wages, nor did it have the power to hire or fire him. In sum, we conclude the trial court erred in finding that Morrison was Minter's special employer. In light of that conclusion, we need not address Minter's remaining points. Affirmed as to A-1916-15, and reversed and remanded as to A- 0022-16. We do not retain jurisdiction. 28 A-1916-15T4
Date: May 10, 2018
Docket Number: a1916-15 PER CURIAM In these back-to-back appeals, which we consolidate for our opinion, we determine that the trial court properly exercised its concurrent jurisdiction, and correctly decided that plaintiff Antoine Minter, a kitchen worker, was acting in the course of covered employment under the Workers' Compensation Act, N.J.S.A. 34:15-1 to -146, with respect to his employer, Friends Village at Woodstown, a continuing care retirement community (CCRC).1 However, we part company with the court's decision that Minter was also a special employee of an outside food service management contractor, Morrison Senior Dining, which the Village retained to supervise its dining operation. I. Minter was injured during a journey to work undertaken at the behest of his supervisors. It had been snowing since the previous night, and Minter's regular morning bus to work was not running. Minter called his supervisor, Dan Beggs, the executive chef, to say he would miss his early morning shift. That was a problem for 1 The CCRC is also identified as Friends Home at Woodstown. For convenience, we will refer to it as "the Village." 3 A-1916-15T4 the dining director, John Lear, because food service was essential, and the Village was short-staffed that day because of the snow. Lear came up with a plan to get Minter to work. At Lear's behest, Beggs told dining supervisor, William Mattson, to come in earlier than his 10:30 a.m. shift, and pick up Minter on the way.2 According to Minter, Mattson called, reported that Beggs said they both "had to come to work" and Beggs told him to pick up Minter. Minter accepted the ride. At that point, he believed he would be fired if he refused. Minter knew he was deemed an essential employee. Also, Beggs previously had given him a verbal warning for showing up late. Critical to the "special employer" issue, the Village had hired Morrison to manage its dining operations and its various dining-related employees. Lear and Beggs were Morrison's only employees on site at the Village. Morrison presented no evidence that Minter was aware that Lear and Beggs worked for an outside company. Minter received his paychecks from the Village, which hired him. Beggs was Minter's supervisor and controlled his work, although Minter, given his low-level position, took orders from 2 Minter and Mattson lived in the same town. Minter said that Mattson gave him a ride to work about twice a week. Mattson testified he only occasionally drove Minter home. In any event, it was undisputed that on the day of the accident, Mattson drove Minter at his employer's behest. 4 A-1916-15T4 others. Beggs reviewed Minter's performance, but the Village retained the power to fire or discipline him. It was still snowing as Mattson and Minter headed to work around 7:30 a.m. Travelling on a snow-and-ice-packed road, Mattson lost control of his car. It entered the path of an oncoming pick- up truck, which struck the passenger side of Mattson's vehicle. Minter suffered two broken legs, fractured ribs, and a deep laceration to his left arm. A few months after the accident, plaintiff filed suit against Mattson. After three amendments, he added the Village, Lear, Beggs, Morrison, and Manufacturers Alliance Insurance Company, the Village's workers' compensation insurer. Before Manufacturers was added, the Village and Mattson filed separate motions seeking summary judgment dismissal on the ground that Minter was acting within the course of his employment and his exclusive remedy was under the Compensation Act. Minter initially opposed the motion. The court deferred its decision pending Minter's deposition and the completion of discovery. In light of that discovery, Minter withdrew his opposition and filed a petition in the Division of Workers' Compensation. Manufacturers then asserted that Minter was not acting in the course of employment when the accident occurred. Minter secured permission to add Manufacturers as an indispensable party to the 5 A-1916-15T4 lawsuit, after contending that he risked inconsistent decisions in the two pending matters. Thereafter, the court decided several dispositive motions. The court denied Manufacturers' motion to dismiss the complaint and transfer the matter to the Division to determine whether Minter was acting within the course of employment when the accident occurred. Instead, the court held that it had concurrent jurisdiction to reach that threshold issue, which Mattson and the Village had raised in their renewed motions for summary judgment. At that point, Beggs, Lear, and Morrison had joined in the motion. The court held that Minter was acting within the course of employment. On that ground, the court dismissed the complaint, so Minter could pursue his exclusive remedy under the Compensation Act before the Division. The court denied Manufacturers' subsequent reconsideration motion. Several months later, upon a motion by Morrison, Lear, and Beggs, the court held that Morrison was a special employer, and that Minter's remedy against those three defendants lay under the Compensation Act. The court later denied Minter's motion for reconsideration. Manufacturers appeals (A-1916-15), contending the court lacked jurisdiction to decide, and then erroneously decided, the 6 A-1916-15T4 employment status issue. Minter appeals (A-0022-16) from the court's determination that he was Morrison's special employee.3 II. We first consider Manufacturers' jurisdictional argument. Manufacturers contends the court should have dismissed the claim against it, because the Division has "primary jurisdiction over plaintiff's employment status." The doctrine of primary jurisdiction applies "'when a case is properly filed in the Superior Court but the court declines original jurisdiction, referring specific issues to the appropriate administrative body.'" Estate of Kotsovska, ex rel. Kotsovska v. Liebman, 221 N.J. 568, 588 (2015) (quoting Magic Petroleum Corp. v. Exxon Mobil Corp., 218 N.J. 390, 405 (2014)). Manufacturers does not argue the trial court lacked the power to decide whether Minter was acting in the course of employment.4 3 We granted Manufacturers' motion for leave to appeal. But, we ultimately delayed argument, so its appeal could be heard back- to-back with Minter's appeal. 4 Manufacturers' point heading states, "THE TRIAL COURT SHOULD HAVE HELD THE WORKERS COMPENSATION COURT HAS PRIMARY JURISDICTION OVER PLAINTIFF'S EMPLOYMENT STATUS." We recognize that Manufacturers' argument then begins with the statement, "Generally, the Workers' Compensation Court has primary and/or the exclusive jurisdiction of all claims for workers' compensation benefits." (Emphasis added). However, we may "confine our address of the issues to those arguments properly made under appropriate point headings." Almog v. Israel Travel Advisory Serv., Inc., 298 7 A-1916-15T4 The Supreme Court has held, "'Despite the exclusivity of the workers' compensation remedy, the Superior Court has jurisdiction to determine the existence of the employment relationship and such other employment issues as are raised by way of defense to the employee's tort action.'" Kotsovska, 221 N.J. at 587 (quoting Pressler & Verniero, Current N.J. Court Rules, cmt. 42.1 on R. 4:5-4 (2014)). The Supreme Court distinguished between whether jurisdiction exists, and whether the court should exercise it. The Court stated, "Having determined the Superior Court had jurisdiction, we next consider whether . . . the trial court erred in declining to transfer plaintiff's claim to the Division under the doctrine of primary jurisdiction." Id. at 587-88. In essence, Manufacturers contends the trial court erred by failing to stay its hand. That was a discretionary decision. Id. at 588. We may disturb it on appeal only if it was "made without a rational explication, inexplicably departed from established practices, or rested on an impermissible basis." Ibid. (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)). N.J. Super. 145, 155 (App. Div. 1997). Furthermore, aside from its qualified reference to exclusive jurisdiction, Manufacturers' argument only addresses the doctrine of primary jurisdiction. 8 A-1916-15T4 The Supreme Court has applied a four-part test for ascertaining whether a court should apply the primary jurisdiction doctrine: 1) whether the matter at issue is within the conventional experience of judges; 2) whether the matter is peculiarly within the agency's discretion, or requires agency expertise; 3) whether inconsistent rulings might pose a danger of disrupting the statutory scheme; and 4) whether prior application has been made to the agency. [Ibid. (quoting Magic Petroleum, 218 N.J. at 407.] Applying those factors, we discern no abuse of discretion. First, the issue whether a person has acted within the course of employment is not outside a judge's conventional experience. "[A] workers' employment status is a matter that is often determined by trial judges and juries." Ibid. We recognize that whether a person is an employee (as distinct, say, from an independent contractor) is different from whether that employee was acting in the course of his or her employment – the issue in this case. However, a court is equally well-equipped to resolve either question. See, e.g., Kasper v. Bd. of Trs. of the Teachers' Pension & Annuity Fund, 164 N.J. 564, 573 (2000) (determining whether an employee was disabled as a "direct result of a traumatic event occurring during and as a result of the performance of his [or her] regular or assigned duties"); see also 9 Lex K. Larson, 9 A-1916-15T4 Larson's Workers' Compensation § 102.06 (Mathew Bender Rev. Ed. 2017) (describing as a "very questionable distinction" a court's determination that it had jurisdiction over employment status but not course of employment). The Division certainly has a wealth of experience addressing course-of-employment issues. But, if the facts are not genuinely disputed, the case calls for a legal determination that is not within the agency's peculiar expertise. See 9 Larson, § 102.06 (suggesting board priority except in those cases "in which the facts are so one-sided that the issue is no longer one of fact but one of law").5 Furthermore, the determination of a legal issue is not a discretionary decision. As for the third factor, had the trial judge stayed her hand, there would have been a risk of inconsistent rulings. We recognize that the Court in Kotsovska perceived no such risk because the petitioner had not filed a petition with the Division. 221 N.J. at 591. By contrast, Minter belatedly did. Nonetheless, only the court had the authority to force resolution of the issues as to all parties, particularly Minter's 5 Notably, an appellate court will defer to the factual findings of the Judge of Workers' Compensation, see Sager v. O.A. Peterson Constr., Co., 182 N.J. 156, 163-64 (2004), but exercise de novo review of his or her legal rulings, see Sentinel Ins. Co. v. Earthworks Landscape Constr., LLC, 421 N.J. Super. 480, 485-86 (App. Div. 2011). 10 A-1916-15T4 alleged co-employees, Mattson, Beggs, and Lear. Although Morrison could have intervened as of right in the Division proceeding against the Village, see Kristiansen v. Morgan, 153 N.J. 298, 311 (1998) (stating alleged special employer may intervene as of right), and Minter was entitled to join Morrison, N.J.A.C. 12:235- 3.6, the co-employees' participation in the Division proceeding was up to them. A co-employee may permissively intervene in a Division proceeding, but the "[c]hoice will remain with the claimed co-employee to refuse to intervene." Wunschel v. City of Jersey City, 96 N.J. 651, 666 (1984); see also Kristiansen, 153 N.J. at 310-11 (stating "[t]he Division acquires jurisdiction over a fellow employee only if he or she elects to voluntarily submit to the [Division's] jurisdiction"). Had the court stayed its hand in the Division's favor, the co-employees' status could have returned to the court, risking a result at odds with the Division's decision as to the Village and Morrison. Fourth, there was no prior application made to the agency. We presume this factor promotes an interest in conserving judicial and agency resources. A court should be more willing to stay its hand if the agency has already started adjudicating the dispute. Here, Minter first turned to the court to resolve his claim. The Village raised the defense that Minter's claim was barred by the Compensation Act. The court declined to rule on an initial round 11 A-1916-15T4 of dispositive motions concerning the Compensation Act; the parties thereafter engaged in extensive discovery; and only then did Minter, apparently protectively, file his workers' compensation petition. Manufacturers has presented no evidence that the Division's case had progressed beyond the initial petition and answer, when the court granted summary judgment. In sum, the four factors did not compel the trial court to yield to the Division's primary jurisdiction. The doctrine is intended to achieve two goals: "to (1) 'allow an agency to apply its expertise to questions which require interpretation of its regulations,' and (2) 'preserve uniformity in the interpretation and application of an agency's regulations.'" Nordstrom v. Lyon, 424 N.J. Super. 80, 99 (App. Div. 2012) (quoting Muise v. GPU, Inc., 332 N.J. Super. 140, 159, 160 (App. Div. 2000)). Referring the course-of-employment issue to the Division would not have substantially furthered those goals. III. We also discern no error in the court's determination that Minter was acting in the course of his employment when the accident occurred. We review the trial court's grant of summary judgment de novo, applying the same standard as the trial court under Rule 12 A-1916-15T4 4:46-2(c). Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 329-30 (2010).6 We first review the governing legal principles. The Compensation Act provides an exclusive remedy for injuries sustained in an "accident arising out of and in the course of employment . . . ." N.J.S.A. 34:15-7. Generally, the Compensation Act covers accidents on the employer's premises. "Employment shall be deemed to commence when an employee arrives at the employer's place of employment to report for work and shall terminate when the employee leaves the employer's place of employment . . . ." N.J.S.A. 34:15-36. This so-called "premises rule" generally bars compensation for accidents during a worker's travel to and from work. Zelasko v. Refrigerated Food Express, 128 N.J. 329, 336 (1992).7 6 Our review is hampered by Manufacturers' failure to comply with Rule 2:6-1(a)(1), which requires submission, on an appeal from a summary judgment, "a statement of all items submitted to the court on the summary judgment motion," and inclusion of all such items other than briefs, unless permitted by Rule 2:6-1(a)(2). 7 The statute provides exceptions when the employer requires the employee "to be away from the employer's place of employment"; the employer pays an employee "travel time . . . for time spent traveling to and from a job site"; or the employee uses an "employer authorized vehicle" for travel to and from "a job site." N.J.S.A. 34:15-36. We need not explore the limits of these exceptions, as the parties do not contend they apply. 13 A-1916-15T4 However, the Supreme Court has recognized an exception to the rule. The Supreme Court has held that "when an employer directs or requires an employee to undertake an activity, 'that compulsion, standing alone, brings an activity that is otherwise unrelated to work within the scope of employment.'" Sager, 182 N.J. at 163 (quoting Lozano v. Frank Deluca Constr., 178 N.J. 513, 532 (2004)). To prove compulsion, "the injured employee must establish that he or she engaged in the activity based on an objectively reasonable belief that participation was required." Lozano, 178 N.J. at 518. "Whether an employee's belief is objectively reasonable, will depend largely on the employer's conduct . . . ." Id. at 534. The Court identified a non-exclusive list of factors relevant to the determination: whether the employer directly solicits the employee's participation in the activity; whether the activity occurs on the employer's premises, during work hours, and in the presence of supervisors, executives, clients, or the like; and whether the employee's refusal to attend or participate exposes the employee to the risk of reduced wages or loss of employment. [Id. at 534.] An employee's subjective impression of compulsion alone is not sufficient. Id. at 534-35. 14 A-1916-15T4 The trial court concluded that under the Sager-Lozano "compelled activity" exception, Minter was engaged in the course of employment. We agree. Certainly, the compelled activities in Lozano and Sager differ from the compelled activity in Minter's case. In Lozano, the employer alleged he was compelled to drive a go-kart at the premises of the employer's customer, and was injured while doing so. 178 N.J. at 517. In Sager, the employee was compelled to travel away from a construction work site to take a meal, and was injured on his return. 182 N.J. at 158. The Court highlighted the recreational and social nature of those types of activities, stating, "when an employer compels an employee's participation in an activity generally viewed as recreational or social in nature, the employer thereby renders that activity work-related as a matter of law." Lozano, 178 N.J. at 518. By contrast, Minter was injured during a journey to work at his usual workplace. He was not engaged in a recreational or social activity. Yet, the Court did not limit its holding to only activities that would "ordinarily be considered recreational or social in nature . . . ." Lozano, 178 N.J. at 531. Rather, the Court referred more generally to "an activity that is otherwise unrelated to work . . . ." Id. at 532. Notably, Sager did not suffer his injury at the compelled "social activity" – the meal. 15 A-1916-15T4 He was injured during the journey back from the meal. Based on that initial compulsion, his injury was determined to have occurred during the course of employment.8 The key is whether an employer compelled the employee's participation. In one sense, travel to and from work is always compelled. Employers set work schedules and employees are generally expected to comply. Those who do not comply usually risk losing their jobs. But, the compulsion in Minter's case was specific and exceptional. Minter had already called out for the day. Thus, if he could establish that his employer compelled his non-work- related activity – the journey to work in a co-worker's vehicle on a day he had already announced he would not work – the accident would be covered.9 8 Initially, Sager was headed back to the New York job site, where he was working a longer day than usual because the bridges and tunnels to New Jersey were closed on September 11, 2001. During the trip from the diner, the bridges were opened, and Sager's supervisor and driver decided to convert the trip from one destined to work, into one destined for home. Sager, 182 N.J. at 159-61. 9 Employment also commences during travel when an employer requires an employee "to travel in a ridesharing arrangement as a condition of employment." N.J.S.A. 34:15-36. "Ridesharing" includes "carpools." Ibid. Arguably, Minter was so compelled to carpool to work with Mattson. The same legislation that added the ridesharing provision to the Compensation Act – the New Jersey Ridesharing Act of 1981 – defined "car pool" to mean "two or more persons commuting on a daily basis to and from work by means of a vehicle with a seating capacity of nine passengers or less." See L. 1981, c. 413, § 3. There is no evidence that Mattson and Minter 16 A-1916-15T4 Turning to the factual record, we reject Manufacturers' contention that there remained a genuine issue of material fact as to whether Minter was compelled to travel to work the day of the snowstorm. Minter had an objectively reasonable belief that his presence at work was compelled. "When an employer directly commands an employee to engage in an activity, it is axiomatic that the employee has been compelled." Lozano, 178 N.J. at 534. According to Minter, Mattson told him that Beggs said that he had to come in during the snowstorm. Even if Beggs did not give a direct order to Minter to come in, Minter had an objectively reasonable belief that his appearance was compelled. Beggs and Mattson "directly solicit[ed]" Minter's travel to work in the snow on a day he had already called out. See ibid. Beggs and Mattson testified that Minter was asked, not expressly ordered, to come in. Mattson testified that Beggs "asked me if I could give [Minter] a ride to work." And Beggs testified that he "asked . . . Mr. Minter . . . if he can come in if [Mattson] picked him up. And he said yes." After Beggs secured Mattson's commuted together daily. However, the Ridesharing Act did not include the definition of "carpool" in Title 34, although it did include the definition of "ridesharing." See L. 1981, c. 413, § 6. As the parties did not raise the ridesharing provision, we simply note it without deciding whether it would serve as an alternative basis for finding coverage under the Compensation Act. 17 A-1916-15T4 cooperation, Beggs testified that he called Minter again and said, "'[Mattson]'s going to pick you up. And he said okay.'" Despite his supervisor's testimony that Minter may have had a choice in the matter, the record evidence establishes Minter had an objectively reasonable belief that he was required to accept Mattson's ride and show up for work in the snowstorm. Minter's refusal would have "expose[d] [him] to the risk of . . . loss of employment." Ibid. "[C]onsidering the imbalance of power between the employer and employee, we cannot ignore the reality that indirect pressure on an employee can be as powerful as an explicit order." Ibid.; see also Sager, 182 N.J. at 166-67 (noting employees' sense of obligation to comply with supervisor's requests). It is ultimately not material whether Beggs directed or "asked" Minter to come into work. Nor does it matter that there was no written policy that he would be fired if he did not. Minter understood that he was an essential employee, like all other kitchen staff members. He was so informed when he was hired. Beggs and Lear confirmed that in their depositions. The Village residents had to be fed. Beggs stated that "all hands [were to be] on deck in emergencies" like the snowstorm the day of the accident. Once Beggs secured a ride to work for Minter, he had no justifiable excuse for refusing. Beggs admitted that if Minter 18 A-1916-15T4 refused, he would have referred the matter to Human Resources. Minter said he believed he would have been fired if he refused. It was a reasonable belief. In sum, Minter was injured in the course of his employment, despite the fact that he was not yet at his employer's premises, because his employer had compelled his travel to work with a co- worker on a day he had already informed his employer he was not going to come in. IV. We now turn to the trial court's determination that Morrison was Minter's special employer. Minter argues that Morrison was not his special employer because he was unaware that Beggs and Lear worked for Morrison; the Village paid him and exercised ultimate control over his hiring and firing; and his duties were separate from those of the Morrison employees.10 We agree there is insufficient evidence to conclude Morrison was Minter's special employer. 10 Although Minter included in his notice of appeal the court's denial of his motion for reconsideration, he did not address the point in his brief on the merits. Minter thereby waived the argument that the motion for reconsideration was wrongly decided. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) (stating that "[a]n issue not briefed on appeal is deemed waived"). Minter's effort to raise the issue in reply is ineffective. See Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J. Super. 590, 596 (App. Div. 2001) (stating it is improper to raise an issue for the first time in a reply brief). 19 A-1916-15T4 A. An employee can have two employers under workers' compensation, both of whom may enjoy the benefit of the Compensation Act's exclusive remedy. Walrond v. Cty. of Somerset, 382 N.J. Super. 227, 234 (App. Div. 2006); Blessing v. T. Shriver and Co., 94 N.J. Super. 426, 429-30 (App. Div. 1967). The doctrine has often been applied where an employee of one company was "lent" to a second company. Walrond, 382 N.J. Super. at 234-35. The employer of a building trades worker may assign its employee to work at a construction site under the control of a second company. See, e.g., Volb v. G.E. Capital Corp., 139 N.J. 110, 116-17 (1995); Santos v. Standard Havens, Inc., 225 N.J. Super. 16, 18-21 (App. Div. 1988). Or an employee of a staffing company may be assigned to work for – and submit to the control of – the staffing company's client. See, e.g., Kelly v. Geriatric & Med. Servs., Inc., 287 N.J. Super. 567, 578 (App. Div.) (holding that geriatric facility was special employer of nurse assigned to it by staffing agency), aff'd o.b., 147 N.J. 42 (1996); Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 405 (App. Div. 1988) (holding that Tiffany was special employer of holiday season packing department worker assigned to it by personnel agency). 20 A-1916-15T4 Whether a second company is considered a worker's "special employer" subject to the Compensation Act depends on a non- exclusive list of five factors: (1) the employee has made a contract of hire, express or implied, with the special employer; (2) the work being done by the employee is essentially that of the special employer; (3) the special employer has the right to control the details of the work; (4) the special employer pays the employee's wages; and (5) the special employer has the power to hire, discharge or recall the employee. [Kelly, 287 N.J. Super. at 571-72.] Although the Supreme Court affirmed Kelly, which articulated the five-factor test, the Court has also described the special employer test as consisting of only the first three factors. See Volb, 139 N.J. at 116. Those three factors constitute the test articulated by Professor Larson. See 5 Larson, § 67.01; Blessing, 94 N.J. Super. at 430 (quoting Larson's three-factor test). We therefore surmise that the fourth and fifth factors are secondary to the first three. There is some uncertainty as to whether all five factors must be established. The panel in Walrond stated, "No single factor is 'necessarily dispositive, and not all five must be satisfied 21 A-1916-15T4 in order for a special employment relationship to exist.'" 382 N.J. Super. at 236 (quoting Marino v. Ind. Crating Co., 358 F.3d 241, 244 (3d Cir. 2004)). The federal court in Marino relied on Blessing, which stated, "'The rules and tests are not so hard and fast and inexorable that they must be present and controlling en masse in every case before the employment relationship, as defined and contemplated by the statute, can be declared.'" 94 N.J. Super. at 434 (quoting Long v. Sims Motor Transport Lines, 117 N.E.2d 276, 278 (Ind. App. Ct. 1954)). On the other hand, the Supreme Court in Volb quoted the Larson formulation, which lists the three factors in the conjunctive and states that a special employer is liable under the Compensation Act "'only if'" all three factors are met. Volb, 139 N.J. at 116 (quoting Blessing, 94 N.J. Super. at 430 (quoting 1A Arthur Larson, Workmen's Compensation § 48.00 (1966)). We also have adopted Larson's "only if" formulation, specifically finding that factor one — a contract of hire — was "essential." Murin v. Frapaul Const. Co., 240 N.J. Super. 600, 607-08 (App. Div. 1990). We explained, "An employee's consent is required because the employee loses certain rights along with those he gains when he enters a new employment relationship." Id. at 608.11 11 Murin echoed Larson's reasoning: 22 A-1916-15T4 The Supreme Court has expressly stated that "the most important factor in determining a special employee's status is whether the borrowing employer had the right to control the special employee's work . . . ." Volb, 139 N.J. at 116; see also Blessing, 94 N.J. Super. at 430-31 (stating that "[t]he sheer weight of authority is undoubtedly on the side of 'control'"). However, the Court also has recognized – in a case not involving special employers – that the nature of the work, as opposed to control, may be a more important factor in establishing an employment relationship under the Compensation Act. See Kotsovska, 221 N.J. at 593-94. As we highlighted in Walrond, the "special employer" analysis must remain tethered to the terms of the Compensation Act, which makes financial consideration an essential element of the covered employment relationship. The statute defines an "employee" as "synonymous with servant, and includes all natural persons . . . who perform service for an employer for financial consideration The need for a contract to hire in the lent employee situation is based on the fact that the employee loses certain rights along with those gained when striking up a new employment relation. Most important of all, he or she loses the right to sue the special employer at common law for negligence . . . . [5 Larson, § 67.02.] 23 A-1916-15T4 . . . ." 382 N.J. Super. at 238 (quoting N.J.S.A. 34:15-36). Such consideration may be indirect, as is typical of lent employment situations, where the borrowing employer pays the lending employer, who then pays the worker. Id. at 237-38. Whether direct or indirect, "[s]ervice performed in exchange '"for financial consideration" is a cardinal legal requirement in [workers'] compensation for the creation of the status of employer and employee.'" Id. at 238 (quoting Goff v. Cty. of Union, 26 N.J. Misc. 135, 138 (Dept. Labor 1948)). In Walrond, we rejected a claim that a county police academy was a municipal police officer's special employer because the academy did not directly or indirectly pay the officer for his week-long teaching stint at the academy. 382 N.J. Super. at 240- 41. We concluded that the officer was a volunteer, and was not subject to the Compensation Act's exclusivity provision. Thus, he was entitled to prosecute a negligence claim against the academy. Ibid. B. Applying these principles, we are unpersuaded that Morrison has met its burden to establish that Minter was its special employee. See Drake v. Cty. of Essex, 192 N.J. Super. 177, 179- 80 (App. Div. 1983) (stating that "burden of proving" a plaintiff's eligibility for workers' compensation rests upon the defendant who 24 A-1916-15T4 is "asserting the affirmative defense of an exclusive remedy under workers' compensation"). We begin with the "financial consideration" factor, which we viewed in Walrond as a threshold statutory requirement. Morrison has failed to demonstrate that it provided any financial consideration, directly or indirectly, to Minter. It was undisputed that the Village paid Minter's wages. There is no record evidence that Morrison was the indirect source of those wages. In the usual case, as we have discussed, the special employer pays the general or lending employer, which then pays the worker. See Walrond, 382 N.J. Super. at 237-38. In this case, the flow of money is reversed. The Village, Minter's general employer, paid Morrison for its managerial services and also paid Minter directly for his employment. Thus, Morrison failed to satisfy a statutory prerequisite of an employment relationship under the Compensation Act. Even if we put aside the "financial consideration" factor, Morrison's claim falls short. Turning to the first of the three special employment factors, Morrison failed to establish that Minter had an express or implied contract for hire with Morrison. Essential to the contract is consent. See Murin, 240 N.J. Super. at 607-08 (emphasizing the importance of consent requirement and whether the employee understood he or she would be subject to 25 A-1916-15T4 second employer's direction); Blessing, 94 N.J. Super. at 436 (stating that "a showing of a deliberate and informed consent by the employee" is required before an implied contract can be found); 6 Larson, § 67.02 (stating that "most courts have required a showing of a deliberate and informed consent by the employee"). In the typical employment lending situation, the lent employee does not enter into an express contract of hire. But, one is often implied because the employee voluntarily accepts his or her general employer's assignment to the distinct premises of the special employer. See Kelly, 287 N.J. Super. at 574-75 (finding implied contract for hire where nurse accepted assignment to geriatric facility); Antheunisse, 229 N.J. Super. at 404 (finding an implied contract for hire where lent employee knew she was hired out to Tiffany; she could have refused the assignment; but she voluntarily reported to work at Tiffany and thereafter accepted Tiffany's direction and control). However, even where a general employee is assigned to another site, a contract for hire is not automatically implied. For example, in Blessing, we declined to find a contractual relationship between a security guard and the company that hired the guard's security firm. 94 N.J. Super. at 436. We found "nothing in the record upon which to predicate a finding of 26 A-1916-15T4 knowledgeable consent or a fair inference that an employment relationship between those parties existed." Ibid. Here, Morrison has failed to establish that Minter had any knowledge that Morrison, as a distinct entity, even existed. Notably, Morrison was not located at a separate location that might have triggered an awareness of another employer. Rather, Morrison's direct employees, Lear and Beggs, were integrated into the fabric of the Village workplace. In sum, Morrison failed to prove Minter's knowing and voluntary consent. Therefore, Morrison failed to establish an express or implied contract of hire. If we accept the principle that Morrison may be deemed a special employer "only if" it satisfies all three factors, then Morrison's claim of special employer status must fail on this ground as well. However, assuming for argument's sake that no single factor is dispositive, the remaining factors do not tip the balance in Morrison's favor. Turning to factor two, Minter's work was no more the work of Morrison than it was the work of the Village. While Morrison was contractually bound to manage the Village's dining services, the Village was independently responsible to its residents to provide meals. Minter's role was deemed essential to that work. 27 A-1916-15T4 Factor three does not clearly favor a finding that Morrison was a special employer. While Morrison, through Beggs and Lear, provided Minter's day-to-day supervision and therefore may have controlled his work, the Village retained the right to hire and terminate its kitchen employees like Minter, and to set the terms of their employment. Indeed, Beggs admitted that if Minter failed to appear for work the day of the accident, he would have referred the issue to the Village's human resources department to determine appropriate disciplinary action. Finally, the fourth and fifth factors disfavor a finding of special employment. Morrison did not pay Minter's wages, nor did it have the power to hire or fire him. In sum, we conclude the trial court erred in finding that Morrison was Minter's special employer. In light of that conclusion, we need not address Minter's remaining points. Affirmed as to A-1916-15, and reversed and remanded as to A- 0022-16. We do not retain jurisdiction. 28 A-1916-15T4
UGO BELLOMO v. BOARD OF TRUSTEES, POLICE AND FIREMEN'S RETIREMENT SYSTEM
Date: May 10, 2018
Docket Number: a2506-16
Date: May 10, 2018
Docket Number: a2506-16
DIVISION OF CHILD PROTECTION AND PERMANENCY v. K.G.M.
Date: May 8, 2018
Docket Number: a3876-16 PER CURIAM In these two appeals, calendared back-to-back and consolidated for the purpose of this opinion, we address challenges to a Family Part judgment terminating the parental rights of defendant K.G.M (the father) and defendant T.R.J.M. (the mother) to their now three-year-old daughter, M.M.J.M. (Molly).1 The father seeks reversal, arguing the Division of Child Protection and Permanency (the Division) failed to prove by clear and convincing evidence the four-prong standard codified by our Legislature in N.J.S.A. 30:4C-15.1(a).2 1 We use initials and pseudonyms to protect the family's and other individuals' privacy. 2 These four prongs are: (1) The child's safety, health, or development has been or will continue to be endangered by the parental relationship; (2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. 2 A-3876-16T4 The mother does not challenge the Family Part's findings on the first, second, and fourth prongs of the statute, or as to that part of the third prong that requires the Division to make reasonable efforts to assist a parent overcome those deficiencies that led to his or her child's removal from the home. The mother contends the Division improperly rejected her suggestion Molly be placed with the child's paternal aunt or with a close family friend, and also failed to consider alternatives to the termination of her parental rights. After reviewing the record and the applicable legal principles, we affirm. I Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child; (3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and (4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a).] 3 A-3876-16T4 In lieu of reciting at length the evidence presented during the guardianship trial, we incorporate by reference the judge's factual findings because they are supported by competent evidence. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). However, we highlight the principal evidence. The mother is well-known to the Division. Before Molly was born, the mother had eight children, all of whom were removed from the mother's custody because of her long-standing addiction to drugs. Despite being provided with a plethora of services to help her overcome her addiction, the mother continued to abuse illicit substances. In fact, the underlying event that led to Molly's removal from defendants' custody was that cocaine and marijuana were found in Molly's meconium3 at birth, which prompted the hospital staff to notify the Division the baby may have been abused or neglected. The Division took physical custody of the baby when she was discharged from the hospital and placed her with a resource parent. Molly has lived with such parent (resource mother) since; the resource mother wants to adopt her. The Division did 3 "The first intestinal discharges of the newborn infant, greenish in color and consisting of epithelial cells, mucus, and bile." Stedman's Medical Dictionary 842 (5th ed. 1982). 4 A-3876-16T4 not place the baby in the father's custody because of his criminal history and other concerns. Specifically, in 2003 and 2005, the father was "charged" with possession of marijuana.4 In 2012, he was convicted of possession of marijuana, for which he was placed on probation for five years. In addition, although defendants had been living together for a number of years, and in fact married in 2014, the father, presumably aware of the extent of the mother's dependence on drugs, advised the Division he had no concerns about her drug use. While Molly was still in the hospital, the Division explored but declined the mother's suggestion Molly be placed with her paternal aunt, H.M. (Helen), with whom defendants lived. The Division sent Helen a rule-out letter, which stated Helen was rejected as a placement option because of her "inability to take time from work to support and care for [Molly]." During trial, a Division employee clarified Helen was ruled out because she was unable to take off six weeks of work at the time of Molly's discharge from the hospital. The rule-out letter advised that if Helen wished to challenge the Division's decision, she had twenty days to 4 It is unclear whether he was convicted of these alleged charges. 5 A-3876-16T4 appeal. The letter also stated that if Helen's circumstances changed and she wanted to be reconsidered as a potential caregiver to Molly, she could contact the Division. Helen neither sought a review nor reconsideration of the Division's decision. Defendants suggested four other relatives be considered as placement options, but all were ruled out and none sought a review of the Division's decision. Defendants do not challenge the Division's rejection of these other family members. In June 2015, just two months after Molly was born, the father was arrested for violating probation because he moved to a new county without first securing permission from his probation officer. He was housed in a county correctional facility and then transferred to a halfway house in July 2015 for drug treatment, where he remained until March 2016. He worked during the day, participated in substance abuse treatment during the evening, and submitted to drug testing twice per month. In August 2015, the father was evaluated by psychologist Alan S. Gordon, Psy.D. The father advised Gordon his drug of choice was marijuana, but claimed he had last used such drug in 2012; however, the father also reported he had in-patient drug treatment in 2013. Gordon administered various tests to the 6 A-3876-16T4 father, which revealed psychological dysfunction of mild to moderate severity. Gordon observed that, when in a program, the father does well, but "the real question remains how he will function after he is in the community." The father successfully completed the program at the halfway house and was discharged in March 2016. By all accounts, he did well while in the program. However, one month after his release, he violated probation by driving with a suspended license. The court revoked his probation and, in June 2016, the father was sentenced to a term of imprisonment that does not expire until June 2019. At the time of trial, the father was participating in a drug treatment program in the prison and was doing well in treatment. Since Molly's removal, he has taken advantage of all opportunities to visit with her and has been found to be appropriate and affectionate with the child during all visits. He also completed a parenting course. Despite the father's progress, the Division harbored doubts about his ability to parent Molly effectively because, for example, in March 2016 the father told the Division he was unwilling to separate from the mother so that he could gain custody of Molly. He also minimized the mother's drug use. 7 A-3876-16T4 In December 2016, the father submitted to a psychological evaluation by the Division's expert, Lateisha Callender, Ph.D. At that time, the father told Callender he would separate from the mother so he could obtain custody of Molly. After examining the father and reviewing various documents, Callender concluded as follows. First, she acknowledged the father had done well in substance abuse treatment programs and completed a parenting course. In addition, before he was incarcerated he was gainfully employed. However, she found he exhibited poor judgment by engaging in conduct that led to his imprisonment, which in turn made him unavailable to care for and meet Molly's needs. His conduct revealed his difficulty with making decisions that allowed him to remain in the community. Callender also noted that, despite the mother's prolonged inability to refrain from the use of drugs, the father minimized her use and failed to ascertain whether she was taking illicit substances when pregnant with Molly. Callender opined that if he had custody of Molly, his obliviousness to the mother's drug use would place the child at risk of harm. Specifically, there is the risk he would expose Molly to and fail to protect her from the mother if the mother were under the influence in the child's presence. 8 A-3876-16T4 Callender also conducted a bonding evaluation of the father and Molly, as well as of the resource mother and the child. Callender concluded the resource mother is Molly's psychological parent. Callender also determined the resource mother is providing "high quality" care to Molly and that she is "thriving." Although it would not be "traumatic" for Molly if she were removed from the resource mother's home and placed with the father, nevertheless the harm caused by such change would be "severe and enduring." Callender explained permanency is central to a child's sense of safety, and removal from the resource mother's home could have lifelong implications for Molly's social and cognitive development. If sufficiently skilled, a new caretaker could mitigate the harm to Molly. However, Callender opined the father lacks such skills. Finally, Callender stated that if Molly remained in the resource mother's home, the termination of defendants' parental rights will not do more harm than good. Just weeks before the guardianship trial commenced in April 2017, the mother requested the Division investigate a close family friend, S.M. (Susan), as a placement option. Because of Callender's opinion Molly would suffer harm if removed from her resource mother's care, the Division ruled out Susan, 9 A-3876-16T4 determining it was in Molly's best interests to remain in her current placement home. In an extensive oral opinion, the Family Part judge reviewed the evidence and made factual findings and conclusions of law, determining the Division met all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. For substantially the reasons expressed in that opinion, we agree with and affirm the judge's findings. II On appeal, the father contends his parental rights were terminated on insufficient grounds. In his view those grounds were: (1) he will not be able to protect Molly from the mother's use of drugs if Molly were placed in his custody; (2) he violated probation, notwithstanding the nature of the violations were minor; and (3) he was incarcerated. The father also argues the fact he successfully participated in drug treatment and meaningfully engaged in visitation was not accorded sufficient weight. Finally, both he and the mother claim the Division failed to appropriately consider Helen and Susan as placement options and did not consider alternatives to termination. In reviewing a case in which termination of parental rights has been ordered, we are mindful of the gravity and importance 10 A-3876-16T4 of our review. See N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 151 (2010) ("[T]he process for terminating parental rights is a difficult and intentionally rigorous one that must be satisfied by a heightened burden of proof. . . ."). Parents have a constitutionally protected right to enjoy a relationship with their children and to raise them without undue State interference. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008). However, this right is not absolute, as it is limited by the "State's parens patriae responsibility to protect children whose vulnerable lives or psychological well-being may have been harmed or may be seriously endangered by a neglectful or abusive parent." F.M., 211 N.J. at 447. The State has a strong public policy that favors placing children in a permanent, safe, and stable home. See generally In re Guardianship of K.H.O., 161 N.J. 337, 357-58 (1999). In addition, a reviewing court should not disturb the factual findings of the trial court if they are supported by "adequate, substantial and credible evidence. . . ." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). We defer to the trial court's credibility findings and, in particular, its fact findings because of its 11 A-3876-16T4 expertise in family matters, see N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010), unless the trial court's findings are "so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing J.T., 269 N.J. Super. at 188- 89). Here, the judge's factual findings are supported by "adequate, substantial and credible evidence. . . ." M.M., 189 N.J. at 279 (quoting J.T., 269 N.J. Super. at 188). The judge found Dr. Callender credible and relied upon her expert, unrebutted opinions, summarized above, to reach his conclusions on the first, second, and fourth prongs. We discern no reason to disturb those findings. As for the father's specific contentions, there is no evidence the father's parental rights were terminated because he violated probation or was incarcerated. We agree the father's probation violations were minor, comparatively speaking. We also agree incarceration, standing alone, is insufficient to prove parental unfitness. See N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 555 (2014). However, the father's parental rights were not terminated because he moved to a different county without permission, drove while on the suspended list, or was incarcerated. 12 A-3876-16T4 What occurred here is the father knowingly engaged in conduct that put him at risk for and did result in his confinement. Since Molly was two months old, but for a brief period between his discharge from the halfway house in March 2016 and his arrest for violating probation in April 2016, the father has been in jail, a half-way house, or prison. His current term of imprisonment does not terminate until June 2019. The probation violations were relatively minor, but their consequences significant. Molly has been with her resource mother since she was approximately two weeks old. The pivotal and critical fact is that, by the time of trial, Molly had become so bonded to the resource mother that the severance of such bond will cause her severe and enduring harm. It was the father's unavailability that drives the outcome here. Although Molly could be placed with another, she will be seriously injured unless such person possesses the skills necessary to mitigate the harm she will experience if separated from her resource mother. It is unfortunate, but the father does not possess those vital skills. As for the third prong, the Division must show it "has considered alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). The Division may not "embark on a course set for termination of parental rights and adoption by a 13 A-3876-16T4 foster parent without at least first exploring available relative placements." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 580 (App. Div. 2011). Here, as part of its consideration of alternatives to termination of parental rights, the Division investigated five relatives and one family friend as placement options, but all were ruled out. Defendants did not request that the Division investigate any other individuals. On appeal, defendants claim Helen and Susan should not have been rejected. As for Helen, we need not reach the merits of the Division's decision to reject her as a placement option. Helen declined to appeal from the rule-out determination. She also spurned the invitation to be reconsidered as a caregiver after the initial six-week period expired and the Division's perceived obstacle to her becoming a caregiver no longer existed. Under the circumstances, it is reasonable to assume Helen's failure to seek review or reconsideration of the Division's decision signified she was no longer able or willing to be a caregiver. Thus, placing Molly with Helen was not an alternative to terminating defendants' parental rights. With respect to Susan, significantly, during her testimony she equivocated over whether she would be willing to adopt Molly. Susan stated it was not her plan to adopt Molly unless 14 A-3876-16T4 it became necessary. When asked to clarify what would make adoption necessary, she merely replied, "Meaning if it's eight years, nine years, and I'm, you know, still a foster parent with her." In light of Susan's reluctance to adopt Molly at this time and the unrefuted testimony Molly needs permanency, which is best achieved through adoption, placing Molly with Susan also was not an alternative to terminating defendants' parental rights. Therefore, we affirm the judge's finding the Division met prong three of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. To the extent we have not addressed a defendant's argument, it is because we determined it was without sufficient merit to warrant discussion in a written opinion. See Rule 2:11- 3(e)(1)(E). Affirmed. 15 A-3876-16T4
Date: May 8, 2018
Docket Number: a3876-16 PER CURIAM In these two appeals, calendared back-to-back and consolidated for the purpose of this opinion, we address challenges to a Family Part judgment terminating the parental rights of defendant K.G.M (the father) and defendant T.R.J.M. (the mother) to their now three-year-old daughter, M.M.J.M. (Molly).1 The father seeks reversal, arguing the Division of Child Protection and Permanency (the Division) failed to prove by clear and convincing evidence the four-prong standard codified by our Legislature in N.J.S.A. 30:4C-15.1(a).2 1 We use initials and pseudonyms to protect the family's and other individuals' privacy. 2 These four prongs are: (1) The child's safety, health, or development has been or will continue to be endangered by the parental relationship; (2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. 2 A-3876-16T4 The mother does not challenge the Family Part's findings on the first, second, and fourth prongs of the statute, or as to that part of the third prong that requires the Division to make reasonable efforts to assist a parent overcome those deficiencies that led to his or her child's removal from the home. The mother contends the Division improperly rejected her suggestion Molly be placed with the child's paternal aunt or with a close family friend, and also failed to consider alternatives to the termination of her parental rights. After reviewing the record and the applicable legal principles, we affirm. I Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child; (3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and (4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a).] 3 A-3876-16T4 In lieu of reciting at length the evidence presented during the guardianship trial, we incorporate by reference the judge's factual findings because they are supported by competent evidence. N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448-49 (2012). However, we highlight the principal evidence. The mother is well-known to the Division. Before Molly was born, the mother had eight children, all of whom were removed from the mother's custody because of her long-standing addiction to drugs. Despite being provided with a plethora of services to help her overcome her addiction, the mother continued to abuse illicit substances. In fact, the underlying event that led to Molly's removal from defendants' custody was that cocaine and marijuana were found in Molly's meconium3 at birth, which prompted the hospital staff to notify the Division the baby may have been abused or neglected. The Division took physical custody of the baby when she was discharged from the hospital and placed her with a resource parent. Molly has lived with such parent (resource mother) since; the resource mother wants to adopt her. The Division did 3 "The first intestinal discharges of the newborn infant, greenish in color and consisting of epithelial cells, mucus, and bile." Stedman's Medical Dictionary 842 (5th ed. 1982). 4 A-3876-16T4 not place the baby in the father's custody because of his criminal history and other concerns. Specifically, in 2003 and 2005, the father was "charged" with possession of marijuana.4 In 2012, he was convicted of possession of marijuana, for which he was placed on probation for five years. In addition, although defendants had been living together for a number of years, and in fact married in 2014, the father, presumably aware of the extent of the mother's dependence on drugs, advised the Division he had no concerns about her drug use. While Molly was still in the hospital, the Division explored but declined the mother's suggestion Molly be placed with her paternal aunt, H.M. (Helen), with whom defendants lived. The Division sent Helen a rule-out letter, which stated Helen was rejected as a placement option because of her "inability to take time from work to support and care for [Molly]." During trial, a Division employee clarified Helen was ruled out because she was unable to take off six weeks of work at the time of Molly's discharge from the hospital. The rule-out letter advised that if Helen wished to challenge the Division's decision, she had twenty days to 4 It is unclear whether he was convicted of these alleged charges. 5 A-3876-16T4 appeal. The letter also stated that if Helen's circumstances changed and she wanted to be reconsidered as a potential caregiver to Molly, she could contact the Division. Helen neither sought a review nor reconsideration of the Division's decision. Defendants suggested four other relatives be considered as placement options, but all were ruled out and none sought a review of the Division's decision. Defendants do not challenge the Division's rejection of these other family members. In June 2015, just two months after Molly was born, the father was arrested for violating probation because he moved to a new county without first securing permission from his probation officer. He was housed in a county correctional facility and then transferred to a halfway house in July 2015 for drug treatment, where he remained until March 2016. He worked during the day, participated in substance abuse treatment during the evening, and submitted to drug testing twice per month. In August 2015, the father was evaluated by psychologist Alan S. Gordon, Psy.D. The father advised Gordon his drug of choice was marijuana, but claimed he had last used such drug in 2012; however, the father also reported he had in-patient drug treatment in 2013. Gordon administered various tests to the 6 A-3876-16T4 father, which revealed psychological dysfunction of mild to moderate severity. Gordon observed that, when in a program, the father does well, but "the real question remains how he will function after he is in the community." The father successfully completed the program at the halfway house and was discharged in March 2016. By all accounts, he did well while in the program. However, one month after his release, he violated probation by driving with a suspended license. The court revoked his probation and, in June 2016, the father was sentenced to a term of imprisonment that does not expire until June 2019. At the time of trial, the father was participating in a drug treatment program in the prison and was doing well in treatment. Since Molly's removal, he has taken advantage of all opportunities to visit with her and has been found to be appropriate and affectionate with the child during all visits. He also completed a parenting course. Despite the father's progress, the Division harbored doubts about his ability to parent Molly effectively because, for example, in March 2016 the father told the Division he was unwilling to separate from the mother so that he could gain custody of Molly. He also minimized the mother's drug use. 7 A-3876-16T4 In December 2016, the father submitted to a psychological evaluation by the Division's expert, Lateisha Callender, Ph.D. At that time, the father told Callender he would separate from the mother so he could obtain custody of Molly. After examining the father and reviewing various documents, Callender concluded as follows. First, she acknowledged the father had done well in substance abuse treatment programs and completed a parenting course. In addition, before he was incarcerated he was gainfully employed. However, she found he exhibited poor judgment by engaging in conduct that led to his imprisonment, which in turn made him unavailable to care for and meet Molly's needs. His conduct revealed his difficulty with making decisions that allowed him to remain in the community. Callender also noted that, despite the mother's prolonged inability to refrain from the use of drugs, the father minimized her use and failed to ascertain whether she was taking illicit substances when pregnant with Molly. Callender opined that if he had custody of Molly, his obliviousness to the mother's drug use would place the child at risk of harm. Specifically, there is the risk he would expose Molly to and fail to protect her from the mother if the mother were under the influence in the child's presence. 8 A-3876-16T4 Callender also conducted a bonding evaluation of the father and Molly, as well as of the resource mother and the child. Callender concluded the resource mother is Molly's psychological parent. Callender also determined the resource mother is providing "high quality" care to Molly and that she is "thriving." Although it would not be "traumatic" for Molly if she were removed from the resource mother's home and placed with the father, nevertheless the harm caused by such change would be "severe and enduring." Callender explained permanency is central to a child's sense of safety, and removal from the resource mother's home could have lifelong implications for Molly's social and cognitive development. If sufficiently skilled, a new caretaker could mitigate the harm to Molly. However, Callender opined the father lacks such skills. Finally, Callender stated that if Molly remained in the resource mother's home, the termination of defendants' parental rights will not do more harm than good. Just weeks before the guardianship trial commenced in April 2017, the mother requested the Division investigate a close family friend, S.M. (Susan), as a placement option. Because of Callender's opinion Molly would suffer harm if removed from her resource mother's care, the Division ruled out Susan, 9 A-3876-16T4 determining it was in Molly's best interests to remain in her current placement home. In an extensive oral opinion, the Family Part judge reviewed the evidence and made factual findings and conclusions of law, determining the Division met all four prongs of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. For substantially the reasons expressed in that opinion, we agree with and affirm the judge's findings. II On appeal, the father contends his parental rights were terminated on insufficient grounds. In his view those grounds were: (1) he will not be able to protect Molly from the mother's use of drugs if Molly were placed in his custody; (2) he violated probation, notwithstanding the nature of the violations were minor; and (3) he was incarcerated. The father also argues the fact he successfully participated in drug treatment and meaningfully engaged in visitation was not accorded sufficient weight. Finally, both he and the mother claim the Division failed to appropriately consider Helen and Susan as placement options and did not consider alternatives to termination. In reviewing a case in which termination of parental rights has been ordered, we are mindful of the gravity and importance 10 A-3876-16T4 of our review. See N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 151 (2010) ("[T]he process for terminating parental rights is a difficult and intentionally rigorous one that must be satisfied by a heightened burden of proof. . . ."). Parents have a constitutionally protected right to enjoy a relationship with their children and to raise them without undue State interference. N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 102 (2008). However, this right is not absolute, as it is limited by the "State's parens patriae responsibility to protect children whose vulnerable lives or psychological well-being may have been harmed or may be seriously endangered by a neglectful or abusive parent." F.M., 211 N.J. at 447. The State has a strong public policy that favors placing children in a permanent, safe, and stable home. See generally In re Guardianship of K.H.O., 161 N.J. 337, 357-58 (1999). In addition, a reviewing court should not disturb the factual findings of the trial court if they are supported by "adequate, substantial and credible evidence. . . ." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007) (quoting In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). We defer to the trial court's credibility findings and, in particular, its fact findings because of its 11 A-3876-16T4 expertise in family matters, see N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010), unless the trial court's findings are "so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citing J.T., 269 N.J. Super. at 188- 89). Here, the judge's factual findings are supported by "adequate, substantial and credible evidence. . . ." M.M., 189 N.J. at 279 (quoting J.T., 269 N.J. Super. at 188). The judge found Dr. Callender credible and relied upon her expert, unrebutted opinions, summarized above, to reach his conclusions on the first, second, and fourth prongs. We discern no reason to disturb those findings. As for the father's specific contentions, there is no evidence the father's parental rights were terminated because he violated probation or was incarcerated. We agree the father's probation violations were minor, comparatively speaking. We also agree incarceration, standing alone, is insufficient to prove parental unfitness. See N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 555 (2014). However, the father's parental rights were not terminated because he moved to a different county without permission, drove while on the suspended list, or was incarcerated. 12 A-3876-16T4 What occurred here is the father knowingly engaged in conduct that put him at risk for and did result in his confinement. Since Molly was two months old, but for a brief period between his discharge from the halfway house in March 2016 and his arrest for violating probation in April 2016, the father has been in jail, a half-way house, or prison. His current term of imprisonment does not terminate until June 2019. The probation violations were relatively minor, but their consequences significant. Molly has been with her resource mother since she was approximately two weeks old. The pivotal and critical fact is that, by the time of trial, Molly had become so bonded to the resource mother that the severance of such bond will cause her severe and enduring harm. It was the father's unavailability that drives the outcome here. Although Molly could be placed with another, she will be seriously injured unless such person possesses the skills necessary to mitigate the harm she will experience if separated from her resource mother. It is unfortunate, but the father does not possess those vital skills. As for the third prong, the Division must show it "has considered alternatives to termination of parental rights." N.J.S.A. 30:4C-15.1(a)(3). The Division may not "embark on a course set for termination of parental rights and adoption by a 13 A-3876-16T4 foster parent without at least first exploring available relative placements." N.J. Div. of Youth & Family Servs. v. K.L.W., 419 N.J. Super. 568, 580 (App. Div. 2011). Here, as part of its consideration of alternatives to termination of parental rights, the Division investigated five relatives and one family friend as placement options, but all were ruled out. Defendants did not request that the Division investigate any other individuals. On appeal, defendants claim Helen and Susan should not have been rejected. As for Helen, we need not reach the merits of the Division's decision to reject her as a placement option. Helen declined to appeal from the rule-out determination. She also spurned the invitation to be reconsidered as a caregiver after the initial six-week period expired and the Division's perceived obstacle to her becoming a caregiver no longer existed. Under the circumstances, it is reasonable to assume Helen's failure to seek review or reconsideration of the Division's decision signified she was no longer able or willing to be a caregiver. Thus, placing Molly with Helen was not an alternative to terminating defendants' parental rights. With respect to Susan, significantly, during her testimony she equivocated over whether she would be willing to adopt Molly. Susan stated it was not her plan to adopt Molly unless 14 A-3876-16T4 it became necessary. When asked to clarify what would make adoption necessary, she merely replied, "Meaning if it's eight years, nine years, and I'm, you know, still a foster parent with her." In light of Susan's reluctance to adopt Molly at this time and the unrefuted testimony Molly needs permanency, which is best achieved through adoption, placing Molly with Susan also was not an alternative to terminating defendants' parental rights. Therefore, we affirm the judge's finding the Division met prong three of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence. To the extent we have not addressed a defendant's argument, it is because we determined it was without sufficient merit to warrant discussion in a written opinion. See Rule 2:11- 3(e)(1)(E). Affirmed. 15 A-3876-16T4
CHRISTINA R. KEMPA v. CANVAS HOUSE ANTIQUES AND DESIGN CENTER, INC
Date: May 8, 2018
Docket Number: a4719-16
Date: May 8, 2018
Docket Number: a4719-16
DIVISION OF CHILD PROTECTION AND PERMANENCY v. N.N.M.
Date: May 7, 2018
Docket Number: a2623-16 PER CURIAM In these consolidated appeals, N.N.M. ("Nancy") and L.D ("Leonard") contest the Family Part's February 10, 2017 final judgment of guardianship terminating their parental rights to A.L.M ("Amy")1, who is currently five years old. Defendants collectively argue that the Division of Child Protection and Permanency ("Division") did not prove all four prongs of the statutory "best interests of the child" test under N.J.S.A. 30:4C- 15.1(a) by clear and convincing evidence. The Law Guardian supports termination and urges us to affirm the trial judge's determination. Because we conclude that the trial court did not make necessary findings concerning all elements of prong three, N.J.S.A. 30:4C-15.1(a)(3), and specifically whether kinship legal guardianship ("KLG") is a viable permanency alternative, we reverse and remand for the trial court to address this prong. 1 We use fictitious names for N.N.M., L.D., A.L.M., and the paternal grandmother, for ease of reading and to protect their privacy. 2 A-2623-16T4 As the court's remand is limited to prong three, our discussion of the relevant procedural history and factual background is brief and narrowly tailored to that statutory factor. Prior to the birth of Amy on October 18, 2013, the Division was involved in pending litigation against Nancy that involved her two other children. On June 26, 2014, after Nancy's incarceration on an outstanding warrant, the Division instituted a Dodd2 removal with respect to Amy. At the time of the removal, Leonard was also incarcerated. Less than a week later, the court granted the Division custody of Amy after concluding "it would be contrary to . . . [her] welfare . . . to return home at this time because [Nancy] remains incarcerated and she is non[-]compliant with Division services." Amy began living with her paternal grandmother, Lu.D ("Lucy") shortly after her removal and remains in her care. During the trial court proceedings, the court held a series of compliance hearings where the court ordered the Division to provide various services to the family. Thereafter, the court held two permanency hearings approving the Division's plan for 2 A "Dodd removal" refers to the emergency removal of a child from a home without a court order, as authorized by N.J.S.A. 9:6–8.29 of the Dodd Act, N.J.S.A. 9:6–8.21 to –8.82. The Dodd action here also involved the removal of Nancy's other two children who were in her custody at the time. Those children are not the subject of this appeal. 3 A-2623-16T4 adoption of Amy by Lucy. At the first permanency hearing, the court found Nancy had consistently failed to comply with Division services and had ongoing substance abuse issues. The court found Leonard failed to present himself as a viable placement option for Amy and failed to comply with services. The Division subsequently filed a guardianship complaint in which it sought to terminate Nancy and Leonard's parental rights followed by adoption. During the course of the guardianship proceedings, the Division continued to provide services to Leonard and Nancy. Those services included inpatient and outpatient substance abuse treatment and parenting skills classes. The Division also arranged supervised visitation between the parents and Amy. At a second permanency hearing, the court reaffirmed the Division's plan of termination of parental rights followed by adoption as it determined that Nancy and Leonard continued to "have issues with substance abuse and [had] not fully complied with services." The guardianship trial proceeded over the course of three days. The Division introduced documentary evidence and called three witnesses: adoption caseworker Jason Swartwood and two psychologists, Robert Kanen, Psy. D. and Dr. Robert Miller, Ph.D. Leonard also testified at the trial. Neither Lucy nor Nancy testified. 4 A-2623-16T4 The Division's evidence on the issue of alternatives to termination of parental rights was elicited primarily through the testimony of Swartwood and Dr. Miller. Swartwood testified that he discussed the difference between KLG and adoption with Lucy several times. He also testified that Lucy agreed to adopt Amy but "would accept" KLG. When Swartwood was asked if he had Lucy sign an information sheet explaining the difference between KLG and adoption, he stated, "Yes. Well, actually, I did not. The previous caseworker would have." The Division did not introduce the referenced information sheet that Lucy purportedly reviewed and signed and that explained the difference between KLG and adoption.3 Dr. Miller, in his report that was introduced into evidence at trial, stated that it was Lucy's plan to take care of Amy "if 3 On appeal, the Division and the Law Guardian also rely upon statements by Lucy to Division caseworkers that are contained in the voluminous contact sheets that were admitted at the guardianship trial. For example, the Division relies upon the contact sheets for the proposition that Lucy told the Division caseworker that she wanted to adopt Amy and was in favor of the Division's plan of adoption. As the trial court correctly noted, those statements, despite being contained in the business records of the Division, are clearly inadmissible hearsay. Indeed, reports admitted pursuant to Rule 5:12-4(d) are still subject to hearsay limitations, including those imposed by N.J.R.E. 805 concerning embedded hearsay statements. See, e.g., N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 172-74 (App. Div. 2012). 5 A-2623-16T4 they don't give my son [Leonard] another chance, I don't know about the mother, if the judge orders, it's between KLG and adoption, I have to see what the judge say, I have to watch." According to Dr. Miller, the "paternal grandmother indicated her intention to adopt her granddaughter if the judge ordered termination of parental rights however she appeared ambivalent and expressed hope her son would receive custody" (emphasis supplied). Lucy stated to Miller: "I have to see, that mother's not going to give them up, but I hope my son get himself together, but every time he seem to do it he get in trouble." In its February 10, 2017 oral opinion, the court concluded that the Division satisfied all four prongs of N.J.S.A. 30:4C- 15.1(a) clearly and convincingly. As to prong three, the court found: With regard to the third prong, this gets a little more interesting. This involves a determination of whether the Division made reasonable efforts to assist the parents to reunite with the child and whether the Division has considered alternatives to terminating parental rights. . . . Here I find, for the record, that . . . [Nancy's] attorney argues in his closing that the Division did not offer reasonable services because, and this is his only argument, despite all the services that they offered to her they did not offer proper services, a Mommy and Me residential program, even though 6 A-2623-16T4 it was recommended at one point by, I guess, it was New Pathways. She did complete the inpatient program. But when she was asked to address her drug issues as an outpatient program, in a non- supervised setting, where she had to get up and go someplace and deal with it, you know, like the real world, which would be on for the next, this child's three years old, for at least the next 15 years of the child's life. She couldn't do that. I mean she did it in the inpatient program when she couldn't go anywhere, and they were there. But it's clear that she could never complete that program as an outpatient program even though the outpatient program was recommended by Turning Points after she had completed that program . . . . She had a lot of excuses. There was a waiting list. I mean there's another CADC evaluation. But it's pretty clear from the record, I don't think she ever testified, that she wanted to be with the baby again. And that's the only reason why she would go to a residential program was to get the baby back in a Mommy and Me program. That's why she wanted the Mommy and Me program. To go there to really deal with the substance abuse program I don't think that was ever as important to her as just holding the baby in her arms, [be]cause if it was she would have gone to the outpatient program. She knew the risk involved. Especially after the history she had with DYFS and the other two children. She just couldn't do it. The substance abuse issues were, and I'm finding for the record, are way too strong for her to make them less of a priority than properly parenting and caring for her child. 7 A-2623-16T4 So, therefore, that is the evidence and a basis for me to find by clear and convincing evidence that she would never be able to eliminate the harm in the future if she were granted custody of the child again. The Division referred her multiple times for substance abuse evaluation and substance abuse treatment . . . . She was referred to parenting skill classes and Visiting Homemaker Services. But was discharged for being absent. She was referred again in January 28th, 2015 [sic] . . . . I think she completed that with the homemakers. With regard to [Leonard] I summarized the various services that he was unable to complete and why he's in the outpatient program. I believe [it] is because he was ordered to do so to comply with his probation so [that] he doesn't go back to jail. It wasn't really to fix his habit and deal with being a parent. Thus, the Division has satisfied the third prong of the best interest standard, I believe, by clear and convincing evidence despite failing to have her in the Mommy and Me program. Nancy and Leonard contend that the trial court failed to comprehensively address all elements of prong three. We agree. The trial court's oral decision on prong three focused exclusively on whether the Division "made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home." The trial judge did 8 A-2623-16T4 not address the equally important requirement that the court "consider alternatives to termination of parental rights." The scope of an appellate court's review of a trial court's decision to terminate parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." Ibid. Reviewing courts "accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). As a threshold matter, New Jersey courts "are guided by the principle that 'clearly favors keeping children with their natural parents and resolving care and custody problems within the family.'" N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 165 (2010) (quoting In re Guardianship of J.C., 129 N.J. 1, 7-8 (1992)). Parents have a fundamental constitutional right to raise their children. F.M., 211 N.J. at 447. That right is not, however, absolute and is "tempered by the State's parens patriae responsibility to protect children whose vulnerable lives or 9 A-2623-16T4 psychological well-being may have been harmed or may be seriously endangered by a neglectful or abusive parent." Ibid. "The focus of a termination-of-parental-rights hearing is the best interests of the child." Ibid. The statutory best-interests- of-the-child standard, set forth in N.J.S.A. 30:4C-15.1(a), "aims to achieve the appropriate balance between parental rights and the State's parens patriae responsibility." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007). Under that standard, to justify termination of parental rights, the State must prove by clear and convincing evidence that termination is in the child's best interests. Ibid. Specifically, the State must establish: (1) The child's safety, health or development has been or will continue to be endangered by the parental relationship; (2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child; (3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; 10 A-2623-16T4 (4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a).] The third prong of the best-interests-of-the-child standard, in addition to evaluating the efforts of the Division in providing services to the parents, requires that the court consider alternatives to the termination of parental rights. See N.J.S.A. 30:4C-15.1(a)(3). Under prong three, an alternative to termination is kinship legal guardianship, which allows a relative to become the legal guardian, committed to care for the child until adulthood, without stripping parental rights. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 508 (2004). KLG resulted from the Legislature's realization "that an increasing number of children who cannot safely reside with their parents are in the care of a relative or family friend who does not wish to adopt the child or children." N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 222-23 (2010). See N.J.S.A. 3B:12A-1(a)- (b). In P.P., the New Jersey Supreme Court, while acknowledging the benefits of KLG, emphasized "New Jersey's strong public policy in favor of permanency." P.P., 180 N.J. at 510 (quoting In re Guardianship of K.H.O., 161 N.J. 337, 357 (1999)). The Court explained that KLG is available "as a more permanent option than 11 A-2623-16T4 foster care when adoption 'is neither feasible nor likely' and '[KLG] is in the child's best interests.'" Id. at 512 (quoting N.J.S.A. 3B:12A-6(d)(3)-(4)). But, when the permanency provided by adoption is available, KLG cannot be used as a defense to termination of parental rights. N.J. Div. of Youth and Family Servs. v. D.H., 398 N.J. Super. 333, 341 (App. Div. 2008) (holding that KLG is not available when adoption is feasible or likely); N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 213 (App. Div. 2007) (reaffirming that KLG is only available when no one is willing to adopt the child); N.J.S.A. 3B:12A-6(d). Indeed, we have recognized that when a caretaker "unequivocally" asserts a desire to adopt, the standard to impose a KLG arrangement that adoption is neither feasible nor likely, cannot be satisfied. N.J. Div. of Youth & Family Servs. v. T.I., 423 N.J. Super. 127, 130 (App. Div. 2011). Based on our review of the record and the trial court's oral decision, we are unable to conclude that the trial judge determined that the Division clearly and convincingly considered alternatives to terminating Nancy and Leonard's parental rights. We offer no comment as to the sufficiency of the proofs submitted at the guardianship trial on that issue. The purpose of our remand is to permit the trial court in the first instance to assess the evidence already presented, conduct additional proceedings as he 12 A-2623-16T4 deems appropriate, and issue supplemental factual findings and legal conclusions on the limited issue of whether the Division appropriately considered alternatives to termination. Reversed and remanded for forty-five days to allow the trial court to conduct supplemental proceedings as necessary and issue an amplified decision. We retain jurisdiction. 13 A-2623-16T4
Date: May 7, 2018
Docket Number: a2623-16 PER CURIAM In these consolidated appeals, N.N.M. ("Nancy") and L.D ("Leonard") contest the Family Part's February 10, 2017 final judgment of guardianship terminating their parental rights to A.L.M ("Amy")1, who is currently five years old. Defendants collectively argue that the Division of Child Protection and Permanency ("Division") did not prove all four prongs of the statutory "best interests of the child" test under N.J.S.A. 30:4C- 15.1(a) by clear and convincing evidence. The Law Guardian supports termination and urges us to affirm the trial judge's determination. Because we conclude that the trial court did not make necessary findings concerning all elements of prong three, N.J.S.A. 30:4C-15.1(a)(3), and specifically whether kinship legal guardianship ("KLG") is a viable permanency alternative, we reverse and remand for the trial court to address this prong. 1 We use fictitious names for N.N.M., L.D., A.L.M., and the paternal grandmother, for ease of reading and to protect their privacy. 2 A-2623-16T4 As the court's remand is limited to prong three, our discussion of the relevant procedural history and factual background is brief and narrowly tailored to that statutory factor. Prior to the birth of Amy on October 18, 2013, the Division was involved in pending litigation against Nancy that involved her two other children. On June 26, 2014, after Nancy's incarceration on an outstanding warrant, the Division instituted a Dodd2 removal with respect to Amy. At the time of the removal, Leonard was also incarcerated. Less than a week later, the court granted the Division custody of Amy after concluding "it would be contrary to . . . [her] welfare . . . to return home at this time because [Nancy] remains incarcerated and she is non[-]compliant with Division services." Amy began living with her paternal grandmother, Lu.D ("Lucy") shortly after her removal and remains in her care. During the trial court proceedings, the court held a series of compliance hearings where the court ordered the Division to provide various services to the family. Thereafter, the court held two permanency hearings approving the Division's plan for 2 A "Dodd removal" refers to the emergency removal of a child from a home without a court order, as authorized by N.J.S.A. 9:6–8.29 of the Dodd Act, N.J.S.A. 9:6–8.21 to –8.82. The Dodd action here also involved the removal of Nancy's other two children who were in her custody at the time. Those children are not the subject of this appeal. 3 A-2623-16T4 adoption of Amy by Lucy. At the first permanency hearing, the court found Nancy had consistently failed to comply with Division services and had ongoing substance abuse issues. The court found Leonard failed to present himself as a viable placement option for Amy and failed to comply with services. The Division subsequently filed a guardianship complaint in which it sought to terminate Nancy and Leonard's parental rights followed by adoption. During the course of the guardianship proceedings, the Division continued to provide services to Leonard and Nancy. Those services included inpatient and outpatient substance abuse treatment and parenting skills classes. The Division also arranged supervised visitation between the parents and Amy. At a second permanency hearing, the court reaffirmed the Division's plan of termination of parental rights followed by adoption as it determined that Nancy and Leonard continued to "have issues with substance abuse and [had] not fully complied with services." The guardianship trial proceeded over the course of three days. The Division introduced documentary evidence and called three witnesses: adoption caseworker Jason Swartwood and two psychologists, Robert Kanen, Psy. D. and Dr. Robert Miller, Ph.D. Leonard also testified at the trial. Neither Lucy nor Nancy testified. 4 A-2623-16T4 The Division's evidence on the issue of alternatives to termination of parental rights was elicited primarily through the testimony of Swartwood and Dr. Miller. Swartwood testified that he discussed the difference between KLG and adoption with Lucy several times. He also testified that Lucy agreed to adopt Amy but "would accept" KLG. When Swartwood was asked if he had Lucy sign an information sheet explaining the difference between KLG and adoption, he stated, "Yes. Well, actually, I did not. The previous caseworker would have." The Division did not introduce the referenced information sheet that Lucy purportedly reviewed and signed and that explained the difference between KLG and adoption.3 Dr. Miller, in his report that was introduced into evidence at trial, stated that it was Lucy's plan to take care of Amy "if 3 On appeal, the Division and the Law Guardian also rely upon statements by Lucy to Division caseworkers that are contained in the voluminous contact sheets that were admitted at the guardianship trial. For example, the Division relies upon the contact sheets for the proposition that Lucy told the Division caseworker that she wanted to adopt Amy and was in favor of the Division's plan of adoption. As the trial court correctly noted, those statements, despite being contained in the business records of the Division, are clearly inadmissible hearsay. Indeed, reports admitted pursuant to Rule 5:12-4(d) are still subject to hearsay limitations, including those imposed by N.J.R.E. 805 concerning embedded hearsay statements. See, e.g., N.J. Div. of Youth & Family Servs. v. M.G., 427 N.J. Super. 154, 172-74 (App. Div. 2012). 5 A-2623-16T4 they don't give my son [Leonard] another chance, I don't know about the mother, if the judge orders, it's between KLG and adoption, I have to see what the judge say, I have to watch." According to Dr. Miller, the "paternal grandmother indicated her intention to adopt her granddaughter if the judge ordered termination of parental rights however she appeared ambivalent and expressed hope her son would receive custody" (emphasis supplied). Lucy stated to Miller: "I have to see, that mother's not going to give them up, but I hope my son get himself together, but every time he seem to do it he get in trouble." In its February 10, 2017 oral opinion, the court concluded that the Division satisfied all four prongs of N.J.S.A. 30:4C- 15.1(a) clearly and convincingly. As to prong three, the court found: With regard to the third prong, this gets a little more interesting. This involves a determination of whether the Division made reasonable efforts to assist the parents to reunite with the child and whether the Division has considered alternatives to terminating parental rights. . . . Here I find, for the record, that . . . [Nancy's] attorney argues in his closing that the Division did not offer reasonable services because, and this is his only argument, despite all the services that they offered to her they did not offer proper services, a Mommy and Me residential program, even though 6 A-2623-16T4 it was recommended at one point by, I guess, it was New Pathways. She did complete the inpatient program. But when she was asked to address her drug issues as an outpatient program, in a non- supervised setting, where she had to get up and go someplace and deal with it, you know, like the real world, which would be on for the next, this child's three years old, for at least the next 15 years of the child's life. She couldn't do that. I mean she did it in the inpatient program when she couldn't go anywhere, and they were there. But it's clear that she could never complete that program as an outpatient program even though the outpatient program was recommended by Turning Points after she had completed that program . . . . She had a lot of excuses. There was a waiting list. I mean there's another CADC evaluation. But it's pretty clear from the record, I don't think she ever testified, that she wanted to be with the baby again. And that's the only reason why she would go to a residential program was to get the baby back in a Mommy and Me program. That's why she wanted the Mommy and Me program. To go there to really deal with the substance abuse program I don't think that was ever as important to her as just holding the baby in her arms, [be]cause if it was she would have gone to the outpatient program. She knew the risk involved. Especially after the history she had with DYFS and the other two children. She just couldn't do it. The substance abuse issues were, and I'm finding for the record, are way too strong for her to make them less of a priority than properly parenting and caring for her child. 7 A-2623-16T4 So, therefore, that is the evidence and a basis for me to find by clear and convincing evidence that she would never be able to eliminate the harm in the future if she were granted custody of the child again. The Division referred her multiple times for substance abuse evaluation and substance abuse treatment . . . . She was referred to parenting skill classes and Visiting Homemaker Services. But was discharged for being absent. She was referred again in January 28th, 2015 [sic] . . . . I think she completed that with the homemakers. With regard to [Leonard] I summarized the various services that he was unable to complete and why he's in the outpatient program. I believe [it] is because he was ordered to do so to comply with his probation so [that] he doesn't go back to jail. It wasn't really to fix his habit and deal with being a parent. Thus, the Division has satisfied the third prong of the best interest standard, I believe, by clear and convincing evidence despite failing to have her in the Mommy and Me program. Nancy and Leonard contend that the trial court failed to comprehensively address all elements of prong three. We agree. The trial court's oral decision on prong three focused exclusively on whether the Division "made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home." The trial judge did 8 A-2623-16T4 not address the equally important requirement that the court "consider alternatives to termination of parental rights." The scope of an appellate court's review of a trial court's decision to terminate parental rights is limited. N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). "Appellate courts must defer to a trial judge's findings of fact if supported by adequate, substantial, and credible evidence in the record." Ibid. Reviewing courts "accord deference to factfindings of the family court because it has the superior ability to gauge the credibility of the witnesses who testify before it and because it possesses special expertise in matters related to the family." N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012). As a threshold matter, New Jersey courts "are guided by the principle that 'clearly favors keeping children with their natural parents and resolving care and custody problems within the family.'" N.J. Div. of Youth & Family Servs. v. I.S., 202 N.J. 145, 165 (2010) (quoting In re Guardianship of J.C., 129 N.J. 1, 7-8 (1992)). Parents have a fundamental constitutional right to raise their children. F.M., 211 N.J. at 447. That right is not, however, absolute and is "tempered by the State's parens patriae responsibility to protect children whose vulnerable lives or 9 A-2623-16T4 psychological well-being may have been harmed or may be seriously endangered by a neglectful or abusive parent." Ibid. "The focus of a termination-of-parental-rights hearing is the best interests of the child." Ibid. The statutory best-interests- of-the-child standard, set forth in N.J.S.A. 30:4C-15.1(a), "aims to achieve the appropriate balance between parental rights and the State's parens patriae responsibility." N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 280 (2007). Under that standard, to justify termination of parental rights, the State must prove by clear and convincing evidence that termination is in the child's best interests. Ibid. Specifically, the State must establish: (1) The child's safety, health or development has been or will continue to be endangered by the parental relationship; (2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay of permanent placement will add to the harm. Such harm may include evidence that separating the child from his resource family parents would cause serious and enduring emotional or psychological harm to the child; (3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; 10 A-2623-16T4 (4) Termination of parental rights will not do more harm than good. [N.J.S.A. 30:4C-15.1(a).] The third prong of the best-interests-of-the-child standard, in addition to evaluating the efforts of the Division in providing services to the parents, requires that the court consider alternatives to the termination of parental rights. See N.J.S.A. 30:4C-15.1(a)(3). Under prong three, an alternative to termination is kinship legal guardianship, which allows a relative to become the legal guardian, committed to care for the child until adulthood, without stripping parental rights. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 508 (2004). KLG resulted from the Legislature's realization "that an increasing number of children who cannot safely reside with their parents are in the care of a relative or family friend who does not wish to adopt the child or children." N.J. Div. of Youth & Family Servs. v. L.L., 201 N.J. 210, 222-23 (2010). See N.J.S.A. 3B:12A-1(a)- (b). In P.P., the New Jersey Supreme Court, while acknowledging the benefits of KLG, emphasized "New Jersey's strong public policy in favor of permanency." P.P., 180 N.J. at 510 (quoting In re Guardianship of K.H.O., 161 N.J. 337, 357 (1999)). The Court explained that KLG is available "as a more permanent option than 11 A-2623-16T4 foster care when adoption 'is neither feasible nor likely' and '[KLG] is in the child's best interests.'" Id. at 512 (quoting N.J.S.A. 3B:12A-6(d)(3)-(4)). But, when the permanency provided by adoption is available, KLG cannot be used as a defense to termination of parental rights. N.J. Div. of Youth and Family Servs. v. D.H., 398 N.J. Super. 333, 341 (App. Div. 2008) (holding that KLG is not available when adoption is feasible or likely); N.J. Div. of Youth & Family Servs. v. S.F., 392 N.J. Super. 201, 213 (App. Div. 2007) (reaffirming that KLG is only available when no one is willing to adopt the child); N.J.S.A. 3B:12A-6(d). Indeed, we have recognized that when a caretaker "unequivocally" asserts a desire to adopt, the standard to impose a KLG arrangement that adoption is neither feasible nor likely, cannot be satisfied. N.J. Div. of Youth & Family Servs. v. T.I., 423 N.J. Super. 127, 130 (App. Div. 2011). Based on our review of the record and the trial court's oral decision, we are unable to conclude that the trial judge determined that the Division clearly and convincingly considered alternatives to terminating Nancy and Leonard's parental rights. We offer no comment as to the sufficiency of the proofs submitted at the guardianship trial on that issue. The purpose of our remand is to permit the trial court in the first instance to assess the evidence already presented, conduct additional proceedings as he 12 A-2623-16T4 deems appropriate, and issue supplemental factual findings and legal conclusions on the limited issue of whether the Division appropriately considered alternatives to termination. Reversed and remanded for forty-five days to allow the trial court to conduct supplemental proceedings as necessary and issue an amplified decision. We retain jurisdiction. 13 A-2623-16T4
NATYSAMRA, MIN PLAST, S.A. de C.V. v. REHRIG PACIFIC COMPANY
Date: May 3, 2018
Docket Number: a2253-16
Date: May 3, 2018
Docket Number: a2253-16
JOANAR CHACAVAGE v. NORTHERN BURLINGTON COUNTY REGIONAL SCHOOL DISTRICT
Date: May 3, 2018
Docket Number: a2799-16
Date: May 3, 2018
Docket Number: a2799-16
E. JOHN PENNINGTON, III v. PLANNING BOARD OF THE BOROUGH OF MONMOUTH BEACH
Date: May 3, 2018
Docket Number: a3322-16
Date: May 3, 2018
Docket Number: a3322-16
A.C. v. B.C.
Date: May 1, 2018
Docket Number: a1633-15 PER CURIAM 1 We use initials to protect the identity of the victim and the children. In these consolidated matters plaintiff A.C. appeals from three orders of the Family Part enforcing a judgment of divorce entered between her and her ex-husband, defendant B.C. Because the trial court erred in vacating defendant's child support arrearages, we reverse and remand for the trial court to determine the amount of arrearages due and set a payment based on defendant's ability to pay. Plaintiff and defendant were married in October 2000; the couple then had two children, aged ten and six at the time of the following incidents. In February 2012, defendant attempted to strangle plaintiff, and allegedly also attacked their oldest child. He was stopped by police, arrested, and charged with two counts of attempted murder. In December 2012, defendant pled guilty to one count of second-degree aggravated assault, and was sentenced to four years in prison. A Final Restraining Order (FRO) was entered prohibiting defendant from dissipating marital assets, granting plaintiff exclusive possession of the marital home, and requiring him to pay $299 per week in child support. He was further barred from all contact with plaintiff or the children. Plaintiff filed a complaint for divorce in May 2012. In October 2012, the court entered an order modifying defendant's support obligations. He was ordered to pay $300 per 2 A-1633-15T1 week in child support plus $100 towards arrears, and $300 per week in spousal support to plaintiff. In February 2013, the court allowed defendant to obtain funds from retirement assets to pay child support and alimony arrearages accumulated to that point. In June 2015, after a two-day trial, a final judgment of divorce was entered, and on June 24, 2015, the court entered a supplemental judgment of divorce (SJOD) granting plaintiff sole custody of the children and continuing the October 2012 child support order. Plaintiff was not granted alimony, due to "[p]laintiff's multiple failures to comply with [c]ourt [o]rders regarding financial disclosures and earning potential." Of defendant's three retirement accounts, only one was partially marital property, and a Qualified Domestic Relations Order (QDRO) was to be prepared for each plan to determine how much plaintiff would receive. The court ordered the immediate sale of the marital home, "due to its deteriorating physical condition." The proceeds of the property sale were to be split equally between plaintiff and defendant, and defendant's share would be first applied to satisfy all child support arrearages. That same day, the court appointed a realtor for the listing, marketing, and sale of the home; plaintiff was to cooperate with him, provide him with a set of 3 A-1633-15T1 keys to the property, and also remove all personal property from the marital home. The order authorized the realtor to access the home for these purposes and restrained the parties from interfering with his efforts. Further, the court reserved the right to appoint an attorney-in-fact if either party failed to cooperate. Plaintiff did not appeal from the SJOD or the order appointing the realtor. In November 2015, the court ordered the parties to appear on defendant's motion to enforce the SJOD, and also permitted orders and certifications to be served on plaintiff by email, "as this is the only means of communication on record." On November 6, 2015, counsel for defendant appeared as directed, but plaintiff neither appeared nor filed opposition to the motion. When asked if plaintiff received notice of the hearing, counsel stated, [W]e do not know where to find [plaintiff] at any given time . . . she has refused . . . to divulge her location upon which she could be served with mail. The Court order permitted me to serve her, as I have been, through her email. And, frankly, her email works. It went through. I’ve had communications or have been copied by communications from her[.] The realtor advised that the house could be sold at $120,000 as-is, due to its deteriorating condition. However, plaintiff had not removed her personal property from the property, and had engaged in behavior harassing the realtor, the accountant appointed to perform the QDROs, and defense counsel and his family. 4 A-1633-15T1 The court stated that, "the court certainly finds no fault in the [p]laintiff not disclosing her present location consistent with the underlying policies of the Domestic Violence Act." However, "the court is satisfied that the [p]laintiff has continued to communicate with persons involved in the case by email," that she had been given notice of the hearing by email, and had chosen not to appear. It entered an order authorizing the realtor to list the property as recommended, and executed the QDROs. Further, it restrained plaintiff from communicating with or harassing the court-appointed realtor, or any other person involved with the sale of the home; defendant's counsel and counsel's family, and from being present near defendant's counsel's home or office. Lastly, it appointed an attorney-in-fact, Michael Rothmel, Esq., to execute all documents necessary at closing to effectuate the sale of the property "[i]n the event an agreement of sale is negotiated for the property and either party is unable or unwilling to attend and participate in the closing." Plaintiff was prohibited from contacting the attorney or his staff. Plaintiff filed her first appeal from this order, under Docket No. A-1633- 15. In December 2015, the court denied plaintiff's motion to stay the November 6, 2015 order. Plaintiff then filed an emergent 5 A-1633-15T1 application seeking to stop the sale of the home, and alleging that the service by email was improper and therefore denied her due process by proceeding in her absence. This application was denied, this court reasoning that plaintiff was in fact appealing from the SJOD, and did not file for a stay in the trial court. In May 2016, defendant was released from incarceration, and filed for a modification of his support obligations. On June 22, 2016, the court entered an order after a hearing, at which, despite being served via email, plaintiff neither appeared nor filed opposition. The court ordered the marital property sold for $60,000.2 The court vacated all child support arrears, in the amount of $41,292.92, under Halliwell v. Halliwell, 326 N.J. Super. 442 (App. Div. 1999). Further, it vacated all spousal support arrears, in the amount of $21,304.84. Lastly, it reduced defendant's child support obligation to $100 per week, in recognition of the "significant change in circumstances" since defendant was now a convicted felon working for $11 per hour, a marked reduction from his previous salary of $90,000 per year. Plaintiff filed her second appeal, under Docket No. A-5325-15, from this order. 2 In February 2016, the property was re-appraised, as it had been destroyed in a fire. 6 A-1633-15T1 In September 2016, the court denied a request by plaintiff to stay the June 22, 2016 order; plaintiff then filed an emergent application with this court seeking a stay, which was denied as not containing a threat of irreparable injury. On November 8, 2016, plaintiff amended her appeal, under A-5325-15, to include the September 2016 order. On appeal, plaintiff asserts that: (1) service by email was improper, and that the proceedings in her absence deprived her of her due process rights; (2) the restraining orders against her were improper; (3) the sale of the home and execution of the QRDOs was improper; and (4) the court improperly recalculated defendant's child support obligations and vacated his arrearages. I. Plaintiff argues the use of email to serve her with papers and notices regarding the hearings before the court was improper. After service of initial pleadings, service upon a party 'shall be made as provided in R. 4:4-4, or by registered or certified mail.' R. 1:5-2; see also R. 1:5-1. Under Rule 4:4-4(b)(1)(C)(3), "[i]f service cannot be made by any of the modes provided by this rule, any defendant may be served as provided by court order, consistent with due process of law." "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all 7 A-1633-15T1 the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." O'Connor v. Altus, 67 N.J. 106, 126 (1975) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). Plaintiff asserts she provided her mailing address to the court "in every single motion for years" and asserts the court was "very well inform[ed] about [her] PO Box and was sending correspondence to her for years." However, she does not provide proof to support her assertions that the court knew of her address at the start of the litigation, and the only address in the record is the Mt. Laurel home, which was at first for sale, and later burned to the ground. Most importantly, plaintiff has not certified that she did not receive the emails sent to her pursuant to the various court orders, only that it was not her preferred method of communication. Throughout the pendency of the proceedings, plaintiff was communicating with the realtor, the accountants, and defendant's counsel about the multitude of disputes she had. She cannot claim now that she was not receiving emails at that address, and that she had no notice of any proceedings. An error will not lead to reversal unless it is "clearly capable of producing an unjust result." R. 2:10-2; see State v. 8 A-1633-15T1 Macon, 57 N.J. 325, 337-38 (1971). We do not endorse the use of email service, however, given the circumstances surrounding these parties, and plaintiff's frequent use of her email address, the use of email to serve plaintiff with motion papers was "reasonably calculated under all the circumstances, to apprise [her] of the pendency of the action and afford [her] an opportunity to present [her] objections." O'Connor, 67 N.J. at 126; Rosa v. Araujo, 260 N.J. Super. 458, 463 (App. Div. 1992) (citations omitted). Even if the court and defendant were in possession of a reliable mailing address for plaintiff, any error present in substituting email service was harmless. Therefore, we decline to disturb the resulting orders based on the manner of service of defendant's motions. II. Plaintiff argues the trial court abused its discretion by ordering the sale of the marital home and the execution of the QDROs. As a threshold matter, the notices of appeal indicate plaintiff only appeals from the November 6, 2015, June 22, 2016, and September 15, 2016 orders, and not from the June 24, 2015 SJOD. "It is clear that it is only the orders designated in the notice of appeal that are subject to the appeal process and review." W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. 9 A-1633-15T1 Super. 455, 458 (App. Div. 2008) (citing Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div. 1994)). As such, this court will review the provisions authorizing the sale of the home and the adoption of the QDROs as enforcement actions. A ruling on an enforcement motion in a matrimonial action "is reviewed for abuse of discretion, with deference to the expertise of Family Part judges." See Costa v. Costa, 440 N.J. Super. 1, 4 (App. Div. 2015) (citations omitted). This deference applies "unless it is determined that they went so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). If the record as a whole supports a finding that a party has violated an order, and so long as there is a rational explanation consistent with law and the evidence, this court will not disturb the judge's discretionary choice of a remedy. Milne v. Goldenberg, 428 N.J. Super. 184, 197-99 (App. Div. 2012); see e.g., P.T. v. M.S., 325 N.J. Super. 193, 219-20 (App. Div. 1999). Under the SJOD, the home "shall be sold as soon as possible, due to its deteriorating physical condition." The court then appointed a realtor, who, based on a "comparative analysis" done for the property, initially estimated the house should be listed for $150,000. 10 A-1633-15T1 Once the realtor was able to gain access3 to the home, he saw immediately that "the house was a train wreck," "the exterior and interior of the home have been neglected and are in disrepair," "the inside is packed full of debris, and there are strong, obnoxious odors throughout the house." He advised that "a total clean out and renovation are necessary to make the house habitable." In his opinion, "the only market for this property is an investor who will buy it 'as is' and clean it out, re-list it and re-sell it." As a result, he determined the market value to be $120,000. Based on the foregoing, and the fact that the property was a wasting asset causing harm to plaintiff through losing value, the court authorized the sale of the home at the price suggested by the realtor. Before the property could be sold, it was destroyed in a mysterious fire, and despite being responsible for maintaining homeowners insurance, plaintiff had not done so. New comparative market analyses on the property estimated the reasonable sale price of the empty lot at $60,000; the court ordered it sold at this amount. We cannot say that the determination to sell at this 3 Plaintiff refused to provide the realtor with keys, forcing him to hire a locksmith, only to find that plaintiff had barricaded the front door with "furniture and many other items." 11 A-1633-15T1 amount was an abuse of discretion, as it was amply supported by evidence in the record. Plaintiff also claims that under the terms of the SJOD, there were three retirement plans in question, therefore three QDROs were to be prepared, and the adoption of only two QDROs in the November 6, 2015 order was improper. At the outset, the SJOD does not specify the number of QDROs to be prepared, and only directs that the QDROs created must divide the marital portion of the three retirement plans equally between the parties. Of the defendant's three retirement plans with Lockheed, (1) the Capital Accumulation Plan would be considered almost completely a marital asset, and would have entitled plaintiff to $2,771.70; (2) the Performance Sharing Plan was mostly pre-marital and a small percentage was marital property; and (3) the Pension Plan for Employees in Participating Bargaining Units was also partially marital and pre-marital property. Defendant's counsel suggested instead of giving plaintiff the $2,771.70 due from the Capital Accumulation Plan, plaintiff may share in the entire balance of the Performance Sharing Plan. The end result was that plaintiff walked away with more than if they had strictly abided by the marital/pre-marital splits. This also saved costs which would have resulted from the preparation of a third QRDO. Despite this, the accountant informed plaintiff, "if 12 A-1633-15T1 you would like to treat each account individually instead of receiving a larger balance from the Performance Sharing Plan, please remit an additional $700 and all of [defendant's] Performance Sharing Plan quarterly statements[.]" There is no indication in the record that plaintiff did so or otherwise responded in any way to these requests, and the two resulting QDROs distribute the proceeds of the Performance Sharing Plan and the Pension Plan for Employees in Participating Bargaining Units. Since the judgment required the retirement plans be split equally, in the most technical sense, the court violated the SJOD by approving the two QDROs. However, any error from this is harmless. Plaintiff walked away from the transaction with more money than she was actually entitled to, both because the value of the plans she shared in were more and because unnecessary costs were saved. As such, since the decision of the court was supported by credible evidence, and we cannot say the result was capable of producing an unjust result, the orders authorizing the sale of the home and execution of the QDROs are affirmed. III. Next, plaintiff argues the trial court abused its discretion in imposing restraints preventing her from contacting certain people involved with the sale of the home. Notably, plaintiff was prohibited from contacting and harassing the realtor or his staff, 13 A-1633-15T1 defense counsel's family, and the attorney-in-fact or his staff. The decision to award preliminary relief, such as the issuance of restraints, "summons the most sensitive exercise of judicial discretion." Crowe v. De Gioia, 90 N.J. 126, 132 (1982); see Rinaldo v. RLR Inv., LLC, 387 N.J. Super. 387, 395 (App. Div. 2006) (citation omitted). In determining whether to grant a stay or preliminary injunction, we must consider: (1) whether an injunction is "necessary to prevent irreparable harm"; (2) whether "the legal right underlying [the applicant's] claim is unsettled"; (3) whether the applicant has made "a preliminary showing of a reasonable probability of ultimate success on the merits"; and (4) "the relative hardship to the parties in granting or denying [injunctive] relief." Crowe, 90 N.J. at 132-34. "The time-honored approach in ascertaining whether a party has demonstrated a reasonable likelihood of success requires a determination of whether the material facts are in dispute, and whether the applicable law is settled." Waste Mgmt. of N.J., Inc. v. Union Cty. Utils. Auth., 399 N.J. Super. 508, 528 (App. Div. 2008) (citations omitted). In his certification dated October 27, 2015, the realtor asserted plaintiff showed up at his office, with her children, and "created a loud and annoying scene which lasted until the police 14 A-1633-15T1 were called." He alleged she made false statements alleging she had not received communications regarding the property, and "was in the complete dark about the circumstances of the sale." When the police arrived and told her to leave, she refused to give her identification, and eventually left. She came back shortly after, but left before the police were involved again. Further, defendant's counsel asserted plaintiff engaged in cyberstalking, evidenced by her referencing his wife and children in several emails to the accountant performing the QDROs. She made references to his being involved in the Italian mafia, had accused him of being a pedophile, and she "ha[d] been seen sitting in her car, outside of [his] office, for whatever reason." He requested a restraining order prohibiting plaintiff from making such attacks, from appearing at his office, and directing her to conduct all communication by phone, email, or mail. Plaintiff asserts Mr. Rothmel is her appointed attorney, and asks "how is [he] supposed to defend his [client's] interest if [he] does not know what[] plaintiff's interest is without contacting her?" An attorney-in-fact is "one who is designated to transact business for another." Black's Law Dictionary 124-25 (7th Ed. 1999). He may be appointed by the court to perform certain tasks, such as executing documents. See Joel v. Morrocco, 147 N.J. 546, 551 (1997). 15 A-1633-15T1 Mr. Rothmel was appointed attorney-in-fact for the sole purpose of executing all documents necessary to effectuate the sale of the property, "[i]n the event an agreement of sale is negotiated for the property and either party is unable or unwilling to attend and participate in the closing." (emphasis added). Thus, he was not appointed specifically for plaintiff's benefit, but could act in the stead of either party. Further, Mr. Rothmel's appointment by the court was limited, and did not extend to general advocacy on behalf of either party. It just so happened that it was necessary for him to act for plaintiff, as the court determined more than once that she was unlikely and generally unwilling to cooperate with the sale of the house, a conclusion we cannot say was error based on the record. He could just have easily have been acting on behalf of defendant. Given the limited nature of Mr. Rothmel's role, and given plaintiff's history of harassment of other parties to the sale, it was not an abuse of discretion for the court to preempt this behavior and restrain her at this time. Though the judge did not make explicit findings with regards to each Crowe factor, the evidence in the record supports the restraints. There is no reason why he should have permitted plaintiff to harass the realtor, defendant's counsel's family, or Mr. Rothmel, and plaintiff did not dispute the facts alleged by 16 A-1633-15T1 the individuals she harassed. We will not disturb the restraints on plaintiff. IV. Plaintiff next argues it was error for the trial court to modify defendant's child support obligation based on a finding of changed circumstances. Rulings from requests for modifications are "reviewed for abuse of discretion, with deference to the expertise of Family Part judges." Costa, 440 N.J. Super. at 4 (citing Hand v. Hand, 391 N.J. Super. 102, 111-12 (App. Div. 2007)). "Our courts are authorized to modify alimony and support orders 'as the circumstances of the parties and the nature of the case' require." Halliwell, 326 N.J. Super. at 448 (quoting N.J.S.A. 2A:34-23). These obligations "are always subject to review and modification on a showing of changed circumstances." Ibid. (quoting Lepis v. Lepis, 83 N.J. 139, 146 (1980)). "The party seeking modification has the burden of showing such 'changed circumstances' as would warrant relief from the support or maintenance provisions involved." Lepis, 83 N.J. at 157 (quoting Martindell v. Martindell, 21 N.J. 341, 353 (1956)). The trial court made a finding there was a "significant change in circumstances," and set the new child support obligation at $100 per week, down from $300 per week. The finding was based on the fact that before his incarceration, defendant was making 17 A-1633-15T1 $90,000 a year employed as an engineer at Lockheed Martin. Since his release, and now burdened with a felony conviction, defendant obtained employment as an electrician's assistant at $11 per hour. As a result "a $300 a week child support award would be oppressive" and "inconsistent with the facts." This new level of support would hopefully "allow [defendant] to maintain his employment and perhaps in the future better his position at this juncture." Plaintiff has made no showing that the trial court's finding of changed circumstances was "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974) (citations omitted). As such, we will not disturb the trial court's modification of defendant's child support obligations. V. Plaintiff also argues it was error of the trial court to vacate the support arrearages. We agree as to the arrearages for child support, but not for spousal support. Specifically, plaintiff asserts the court misinterpreted and misapplied Halliwell. Questions of law determined by the trial court require de novo review by the appellate court. Smith v. Millville Rescue Squad, 225 N.J. 373, 387 (2016) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). 18 A-1633-15T1 Whether prior spousal support orders should be enforced, and the extent to which a spouse should be required to pay arrearages, lies within the court's discretion. Weitzman v. Weitzman, 228 N.J. Super. 346, 358 (App. Div. 1988). "On an application to determine the amount of arrearages and to compel their payment, the court has discretion to determine whether the prior support order or judgment should be enforced and whether and to what extent a spouse should be forced to pay arrearages." Mastropole v. Mastropole, 181 N.J. Super. 130, 141 (App. Div. 1981) (citations omitted.) In October 2012, plaintiff was initially granted pendente lite spousal support at $300 per week. However, based on plaintiff's refusal to comply with repeated requests by the court for information regarding her financial status, the SJOD did not award plaintiff alimony. In that time, defendant accrued over $21,000 in spousal support arrears. During the June 22, 2016 hearing, the court decided, because the "plaintiff has failed to abide by a multitude of pretrial and post-trial orders with regard to disclosure of financial information," and based on the fact that the divorce court did not grant alimony, to vacate the entirety of the spousal support arrears. 19 A-1633-15T1 Plaintiff has made no showing that the judge abused his discretion by this decision, and has not shown that this court should disturb the judge's choice of a remedy. Milne, 428 N.J. Super. at 197-99. She alleges that defendant has "[one] million dollars in four 401K's that previously were held to cover child support and alimony" and should now be used to satisfy the arrearages. However, all retirement assets were subject to equitable division through the SJOD, and were used in 2013 to pay then-existing arrearages. Plaintiff provides no evidence to support the existence of previously undisclosed accounts, or any actions on the part of defendant to hide assets. We reach a different conclusion regarding the child support arrearages, also vacated by the June 2016 order of the trial court. "Child support is a continuous duty of both parents," and the right to the support is the child's alone. Halliwell, 325 N.J. Super. at 455 (citations omitted). Parents cannot waive the obligation to pay and the child's right to support. Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993). Further, under N.J.S.A. 2A:17-56.23a, past due payments owed pursuant to child support orders cannot be modified retroactively "except with respect to the period during which there is a pending application for modification[.]" See also Mallamo v. Mallamo, 280 N.J. Super. 8, 13-14 (App. Div. 1995) (recognizing that prior to 20 A-1633-15T1 legislative action in 1993, the decision to modify or vacate child support arrears was within the discretion of the trial court). However, when a parent who owes child support is incarcerated, issues can arise from the resulting non-payment of support. Under Halliwell, a defendant who has child support obligations and is subsequently incarcerated should make a motion to suspend payment on his obligations, and thereafter will not be held in violation of litigant's rights and subject to additional enforcement proceedings. 326 N.J. Super. at 446. However, upon release, such a defendant is required to make payments to reduce any arrearages. The court should reinstate a defendant's support obligation, and "based upon his ability to pay, he will be required to pay an arrearage which will be established commensurate with his income." Id. at 460. Based on our de novo review, the trial court here erred by vacating the past due child support arrearages. As such, we reverse on this issue and remand for the trial court to calculate, based on defendant's ability to pay, the amount of arrearages due and set an appropriate payment. All remaining arguments are without sufficient merit to warrant further discussion in a written opinion. R. 2:11- 3(e)(1)(E). 21 A-1633-15T1 Affirmed in part, reversed in part. We do not retain jurisdiction. 22 A-1633-15T1
Date: May 1, 2018
Docket Number: a1633-15 PER CURIAM 1 We use initials to protect the identity of the victim and the children. In these consolidated matters plaintiff A.C. appeals from three orders of the Family Part enforcing a judgment of divorce entered between her and her ex-husband, defendant B.C. Because the trial court erred in vacating defendant's child support arrearages, we reverse and remand for the trial court to determine the amount of arrearages due and set a payment based on defendant's ability to pay. Plaintiff and defendant were married in October 2000; the couple then had two children, aged ten and six at the time of the following incidents. In February 2012, defendant attempted to strangle plaintiff, and allegedly also attacked their oldest child. He was stopped by police, arrested, and charged with two counts of attempted murder. In December 2012, defendant pled guilty to one count of second-degree aggravated assault, and was sentenced to four years in prison. A Final Restraining Order (FRO) was entered prohibiting defendant from dissipating marital assets, granting plaintiff exclusive possession of the marital home, and requiring him to pay $299 per week in child support. He was further barred from all contact with plaintiff or the children. Plaintiff filed a complaint for divorce in May 2012. In October 2012, the court entered an order modifying defendant's support obligations. He was ordered to pay $300 per 2 A-1633-15T1 week in child support plus $100 towards arrears, and $300 per week in spousal support to plaintiff. In February 2013, the court allowed defendant to obtain funds from retirement assets to pay child support and alimony arrearages accumulated to that point. In June 2015, after a two-day trial, a final judgment of divorce was entered, and on June 24, 2015, the court entered a supplemental judgment of divorce (SJOD) granting plaintiff sole custody of the children and continuing the October 2012 child support order. Plaintiff was not granted alimony, due to "[p]laintiff's multiple failures to comply with [c]ourt [o]rders regarding financial disclosures and earning potential." Of defendant's three retirement accounts, only one was partially marital property, and a Qualified Domestic Relations Order (QDRO) was to be prepared for each plan to determine how much plaintiff would receive. The court ordered the immediate sale of the marital home, "due to its deteriorating physical condition." The proceeds of the property sale were to be split equally between plaintiff and defendant, and defendant's share would be first applied to satisfy all child support arrearages. That same day, the court appointed a realtor for the listing, marketing, and sale of the home; plaintiff was to cooperate with him, provide him with a set of 3 A-1633-15T1 keys to the property, and also remove all personal property from the marital home. The order authorized the realtor to access the home for these purposes and restrained the parties from interfering with his efforts. Further, the court reserved the right to appoint an attorney-in-fact if either party failed to cooperate. Plaintiff did not appeal from the SJOD or the order appointing the realtor. In November 2015, the court ordered the parties to appear on defendant's motion to enforce the SJOD, and also permitted orders and certifications to be served on plaintiff by email, "as this is the only means of communication on record." On November 6, 2015, counsel for defendant appeared as directed, but plaintiff neither appeared nor filed opposition to the motion. When asked if plaintiff received notice of the hearing, counsel stated, [W]e do not know where to find [plaintiff] at any given time . . . she has refused . . . to divulge her location upon which she could be served with mail. The Court order permitted me to serve her, as I have been, through her email. And, frankly, her email works. It went through. I’ve had communications or have been copied by communications from her[.] The realtor advised that the house could be sold at $120,000 as-is, due to its deteriorating condition. However, plaintiff had not removed her personal property from the property, and had engaged in behavior harassing the realtor, the accountant appointed to perform the QDROs, and defense counsel and his family. 4 A-1633-15T1 The court stated that, "the court certainly finds no fault in the [p]laintiff not disclosing her present location consistent with the underlying policies of the Domestic Violence Act." However, "the court is satisfied that the [p]laintiff has continued to communicate with persons involved in the case by email," that she had been given notice of the hearing by email, and had chosen not to appear. It entered an order authorizing the realtor to list the property as recommended, and executed the QDROs. Further, it restrained plaintiff from communicating with or harassing the court-appointed realtor, or any other person involved with the sale of the home; defendant's counsel and counsel's family, and from being present near defendant's counsel's home or office. Lastly, it appointed an attorney-in-fact, Michael Rothmel, Esq., to execute all documents necessary at closing to effectuate the sale of the property "[i]n the event an agreement of sale is negotiated for the property and either party is unable or unwilling to attend and participate in the closing." Plaintiff was prohibited from contacting the attorney or his staff. Plaintiff filed her first appeal from this order, under Docket No. A-1633- 15. In December 2015, the court denied plaintiff's motion to stay the November 6, 2015 order. Plaintiff then filed an emergent 5 A-1633-15T1 application seeking to stop the sale of the home, and alleging that the service by email was improper and therefore denied her due process by proceeding in her absence. This application was denied, this court reasoning that plaintiff was in fact appealing from the SJOD, and did not file for a stay in the trial court. In May 2016, defendant was released from incarceration, and filed for a modification of his support obligations. On June 22, 2016, the court entered an order after a hearing, at which, despite being served via email, plaintiff neither appeared nor filed opposition. The court ordered the marital property sold for $60,000.2 The court vacated all child support arrears, in the amount of $41,292.92, under Halliwell v. Halliwell, 326 N.J. Super. 442 (App. Div. 1999). Further, it vacated all spousal support arrears, in the amount of $21,304.84. Lastly, it reduced defendant's child support obligation to $100 per week, in recognition of the "significant change in circumstances" since defendant was now a convicted felon working for $11 per hour, a marked reduction from his previous salary of $90,000 per year. Plaintiff filed her second appeal, under Docket No. A-5325-15, from this order. 2 In February 2016, the property was re-appraised, as it had been destroyed in a fire. 6 A-1633-15T1 In September 2016, the court denied a request by plaintiff to stay the June 22, 2016 order; plaintiff then filed an emergent application with this court seeking a stay, which was denied as not containing a threat of irreparable injury. On November 8, 2016, plaintiff amended her appeal, under A-5325-15, to include the September 2016 order. On appeal, plaintiff asserts that: (1) service by email was improper, and that the proceedings in her absence deprived her of her due process rights; (2) the restraining orders against her were improper; (3) the sale of the home and execution of the QRDOs was improper; and (4) the court improperly recalculated defendant's child support obligations and vacated his arrearages. I. Plaintiff argues the use of email to serve her with papers and notices regarding the hearings before the court was improper. After service of initial pleadings, service upon a party 'shall be made as provided in R. 4:4-4, or by registered or certified mail.' R. 1:5-2; see also R. 1:5-1. Under Rule 4:4-4(b)(1)(C)(3), "[i]f service cannot be made by any of the modes provided by this rule, any defendant may be served as provided by court order, consistent with due process of law." "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all 7 A-1633-15T1 the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." O'Connor v. Altus, 67 N.J. 106, 126 (1975) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950)). Plaintiff asserts she provided her mailing address to the court "in every single motion for years" and asserts the court was "very well inform[ed] about [her] PO Box and was sending correspondence to her for years." However, she does not provide proof to support her assertions that the court knew of her address at the start of the litigation, and the only address in the record is the Mt. Laurel home, which was at first for sale, and later burned to the ground. Most importantly, plaintiff has not certified that she did not receive the emails sent to her pursuant to the various court orders, only that it was not her preferred method of communication. Throughout the pendency of the proceedings, plaintiff was communicating with the realtor, the accountants, and defendant's counsel about the multitude of disputes she had. She cannot claim now that she was not receiving emails at that address, and that she had no notice of any proceedings. An error will not lead to reversal unless it is "clearly capable of producing an unjust result." R. 2:10-2; see State v. 8 A-1633-15T1 Macon, 57 N.J. 325, 337-38 (1971). We do not endorse the use of email service, however, given the circumstances surrounding these parties, and plaintiff's frequent use of her email address, the use of email to serve plaintiff with motion papers was "reasonably calculated under all the circumstances, to apprise [her] of the pendency of the action and afford [her] an opportunity to present [her] objections." O'Connor, 67 N.J. at 126; Rosa v. Araujo, 260 N.J. Super. 458, 463 (App. Div. 1992) (citations omitted). Even if the court and defendant were in possession of a reliable mailing address for plaintiff, any error present in substituting email service was harmless. Therefore, we decline to disturb the resulting orders based on the manner of service of defendant's motions. II. Plaintiff argues the trial court abused its discretion by ordering the sale of the marital home and the execution of the QDROs. As a threshold matter, the notices of appeal indicate plaintiff only appeals from the November 6, 2015, June 22, 2016, and September 15, 2016 orders, and not from the June 24, 2015 SJOD. "It is clear that it is only the orders designated in the notice of appeal that are subject to the appeal process and review." W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. 9 A-1633-15T1 Super. 455, 458 (App. Div. 2008) (citing Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div. 1994)). As such, this court will review the provisions authorizing the sale of the home and the adoption of the QDROs as enforcement actions. A ruling on an enforcement motion in a matrimonial action "is reviewed for abuse of discretion, with deference to the expertise of Family Part judges." See Costa v. Costa, 440 N.J. Super. 1, 4 (App. Div. 2015) (citations omitted). This deference applies "unless it is determined that they went so wide of the mark that the judge was clearly mistaken." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007). If the record as a whole supports a finding that a party has violated an order, and so long as there is a rational explanation consistent with law and the evidence, this court will not disturb the judge's discretionary choice of a remedy. Milne v. Goldenberg, 428 N.J. Super. 184, 197-99 (App. Div. 2012); see e.g., P.T. v. M.S., 325 N.J. Super. 193, 219-20 (App. Div. 1999). Under the SJOD, the home "shall be sold as soon as possible, due to its deteriorating physical condition." The court then appointed a realtor, who, based on a "comparative analysis" done for the property, initially estimated the house should be listed for $150,000. 10 A-1633-15T1 Once the realtor was able to gain access3 to the home, he saw immediately that "the house was a train wreck," "the exterior and interior of the home have been neglected and are in disrepair," "the inside is packed full of debris, and there are strong, obnoxious odors throughout the house." He advised that "a total clean out and renovation are necessary to make the house habitable." In his opinion, "the only market for this property is an investor who will buy it 'as is' and clean it out, re-list it and re-sell it." As a result, he determined the market value to be $120,000. Based on the foregoing, and the fact that the property was a wasting asset causing harm to plaintiff through losing value, the court authorized the sale of the home at the price suggested by the realtor. Before the property could be sold, it was destroyed in a mysterious fire, and despite being responsible for maintaining homeowners insurance, plaintiff had not done so. New comparative market analyses on the property estimated the reasonable sale price of the empty lot at $60,000; the court ordered it sold at this amount. We cannot say that the determination to sell at this 3 Plaintiff refused to provide the realtor with keys, forcing him to hire a locksmith, only to find that plaintiff had barricaded the front door with "furniture and many other items." 11 A-1633-15T1 amount was an abuse of discretion, as it was amply supported by evidence in the record. Plaintiff also claims that under the terms of the SJOD, there were three retirement plans in question, therefore three QDROs were to be prepared, and the adoption of only two QDROs in the November 6, 2015 order was improper. At the outset, the SJOD does not specify the number of QDROs to be prepared, and only directs that the QDROs created must divide the marital portion of the three retirement plans equally between the parties. Of the defendant's three retirement plans with Lockheed, (1) the Capital Accumulation Plan would be considered almost completely a marital asset, and would have entitled plaintiff to $2,771.70; (2) the Performance Sharing Plan was mostly pre-marital and a small percentage was marital property; and (3) the Pension Plan for Employees in Participating Bargaining Units was also partially marital and pre-marital property. Defendant's counsel suggested instead of giving plaintiff the $2,771.70 due from the Capital Accumulation Plan, plaintiff may share in the entire balance of the Performance Sharing Plan. The end result was that plaintiff walked away with more than if they had strictly abided by the marital/pre-marital splits. This also saved costs which would have resulted from the preparation of a third QRDO. Despite this, the accountant informed plaintiff, "if 12 A-1633-15T1 you would like to treat each account individually instead of receiving a larger balance from the Performance Sharing Plan, please remit an additional $700 and all of [defendant's] Performance Sharing Plan quarterly statements[.]" There is no indication in the record that plaintiff did so or otherwise responded in any way to these requests, and the two resulting QDROs distribute the proceeds of the Performance Sharing Plan and the Pension Plan for Employees in Participating Bargaining Units. Since the judgment required the retirement plans be split equally, in the most technical sense, the court violated the SJOD by approving the two QDROs. However, any error from this is harmless. Plaintiff walked away from the transaction with more money than she was actually entitled to, both because the value of the plans she shared in were more and because unnecessary costs were saved. As such, since the decision of the court was supported by credible evidence, and we cannot say the result was capable of producing an unjust result, the orders authorizing the sale of the home and execution of the QDROs are affirmed. III. Next, plaintiff argues the trial court abused its discretion in imposing restraints preventing her from contacting certain people involved with the sale of the home. Notably, plaintiff was prohibited from contacting and harassing the realtor or his staff, 13 A-1633-15T1 defense counsel's family, and the attorney-in-fact or his staff. The decision to award preliminary relief, such as the issuance of restraints, "summons the most sensitive exercise of judicial discretion." Crowe v. De Gioia, 90 N.J. 126, 132 (1982); see Rinaldo v. RLR Inv., LLC, 387 N.J. Super. 387, 395 (App. Div. 2006) (citation omitted). In determining whether to grant a stay or preliminary injunction, we must consider: (1) whether an injunction is "necessary to prevent irreparable harm"; (2) whether "the legal right underlying [the applicant's] claim is unsettled"; (3) whether the applicant has made "a preliminary showing of a reasonable probability of ultimate success on the merits"; and (4) "the relative hardship to the parties in granting or denying [injunctive] relief." Crowe, 90 N.J. at 132-34. "The time-honored approach in ascertaining whether a party has demonstrated a reasonable likelihood of success requires a determination of whether the material facts are in dispute, and whether the applicable law is settled." Waste Mgmt. of N.J., Inc. v. Union Cty. Utils. Auth., 399 N.J. Super. 508, 528 (App. Div. 2008) (citations omitted). In his certification dated October 27, 2015, the realtor asserted plaintiff showed up at his office, with her children, and "created a loud and annoying scene which lasted until the police 14 A-1633-15T1 were called." He alleged she made false statements alleging she had not received communications regarding the property, and "was in the complete dark about the circumstances of the sale." When the police arrived and told her to leave, she refused to give her identification, and eventually left. She came back shortly after, but left before the police were involved again. Further, defendant's counsel asserted plaintiff engaged in cyberstalking, evidenced by her referencing his wife and children in several emails to the accountant performing the QDROs. She made references to his being involved in the Italian mafia, had accused him of being a pedophile, and she "ha[d] been seen sitting in her car, outside of [his] office, for whatever reason." He requested a restraining order prohibiting plaintiff from making such attacks, from appearing at his office, and directing her to conduct all communication by phone, email, or mail. Plaintiff asserts Mr. Rothmel is her appointed attorney, and asks "how is [he] supposed to defend his [client's] interest if [he] does not know what[] plaintiff's interest is without contacting her?" An attorney-in-fact is "one who is designated to transact business for another." Black's Law Dictionary 124-25 (7th Ed. 1999). He may be appointed by the court to perform certain tasks, such as executing documents. See Joel v. Morrocco, 147 N.J. 546, 551 (1997). 15 A-1633-15T1 Mr. Rothmel was appointed attorney-in-fact for the sole purpose of executing all documents necessary to effectuate the sale of the property, "[i]n the event an agreement of sale is negotiated for the property and either party is unable or unwilling to attend and participate in the closing." (emphasis added). Thus, he was not appointed specifically for plaintiff's benefit, but could act in the stead of either party. Further, Mr. Rothmel's appointment by the court was limited, and did not extend to general advocacy on behalf of either party. It just so happened that it was necessary for him to act for plaintiff, as the court determined more than once that she was unlikely and generally unwilling to cooperate with the sale of the house, a conclusion we cannot say was error based on the record. He could just have easily have been acting on behalf of defendant. Given the limited nature of Mr. Rothmel's role, and given plaintiff's history of harassment of other parties to the sale, it was not an abuse of discretion for the court to preempt this behavior and restrain her at this time. Though the judge did not make explicit findings with regards to each Crowe factor, the evidence in the record supports the restraints. There is no reason why he should have permitted plaintiff to harass the realtor, defendant's counsel's family, or Mr. Rothmel, and plaintiff did not dispute the facts alleged by 16 A-1633-15T1 the individuals she harassed. We will not disturb the restraints on plaintiff. IV. Plaintiff next argues it was error for the trial court to modify defendant's child support obligation based on a finding of changed circumstances. Rulings from requests for modifications are "reviewed for abuse of discretion, with deference to the expertise of Family Part judges." Costa, 440 N.J. Super. at 4 (citing Hand v. Hand, 391 N.J. Super. 102, 111-12 (App. Div. 2007)). "Our courts are authorized to modify alimony and support orders 'as the circumstances of the parties and the nature of the case' require." Halliwell, 326 N.J. Super. at 448 (quoting N.J.S.A. 2A:34-23). These obligations "are always subject to review and modification on a showing of changed circumstances." Ibid. (quoting Lepis v. Lepis, 83 N.J. 139, 146 (1980)). "The party seeking modification has the burden of showing such 'changed circumstances' as would warrant relief from the support or maintenance provisions involved." Lepis, 83 N.J. at 157 (quoting Martindell v. Martindell, 21 N.J. 341, 353 (1956)). The trial court made a finding there was a "significant change in circumstances," and set the new child support obligation at $100 per week, down from $300 per week. The finding was based on the fact that before his incarceration, defendant was making 17 A-1633-15T1 $90,000 a year employed as an engineer at Lockheed Martin. Since his release, and now burdened with a felony conviction, defendant obtained employment as an electrician's assistant at $11 per hour. As a result "a $300 a week child support award would be oppressive" and "inconsistent with the facts." This new level of support would hopefully "allow [defendant] to maintain his employment and perhaps in the future better his position at this juncture." Plaintiff has made no showing that the trial court's finding of changed circumstances was "so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974) (citations omitted). As such, we will not disturb the trial court's modification of defendant's child support obligations. V. Plaintiff also argues it was error of the trial court to vacate the support arrearages. We agree as to the arrearages for child support, but not for spousal support. Specifically, plaintiff asserts the court misinterpreted and misapplied Halliwell. Questions of law determined by the trial court require de novo review by the appellate court. Smith v. Millville Rescue Squad, 225 N.J. 373, 387 (2016) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). 18 A-1633-15T1 Whether prior spousal support orders should be enforced, and the extent to which a spouse should be required to pay arrearages, lies within the court's discretion. Weitzman v. Weitzman, 228 N.J. Super. 346, 358 (App. Div. 1988). "On an application to determine the amount of arrearages and to compel their payment, the court has discretion to determine whether the prior support order or judgment should be enforced and whether and to what extent a spouse should be forced to pay arrearages." Mastropole v. Mastropole, 181 N.J. Super. 130, 141 (App. Div. 1981) (citations omitted.) In October 2012, plaintiff was initially granted pendente lite spousal support at $300 per week. However, based on plaintiff's refusal to comply with repeated requests by the court for information regarding her financial status, the SJOD did not award plaintiff alimony. In that time, defendant accrued over $21,000 in spousal support arrears. During the June 22, 2016 hearing, the court decided, because the "plaintiff has failed to abide by a multitude of pretrial and post-trial orders with regard to disclosure of financial information," and based on the fact that the divorce court did not grant alimony, to vacate the entirety of the spousal support arrears. 19 A-1633-15T1 Plaintiff has made no showing that the judge abused his discretion by this decision, and has not shown that this court should disturb the judge's choice of a remedy. Milne, 428 N.J. Super. at 197-99. She alleges that defendant has "[one] million dollars in four 401K's that previously were held to cover child support and alimony" and should now be used to satisfy the arrearages. However, all retirement assets were subject to equitable division through the SJOD, and were used in 2013 to pay then-existing arrearages. Plaintiff provides no evidence to support the existence of previously undisclosed accounts, or any actions on the part of defendant to hide assets. We reach a different conclusion regarding the child support arrearages, also vacated by the June 2016 order of the trial court. "Child support is a continuous duty of both parents," and the right to the support is the child's alone. Halliwell, 325 N.J. Super. at 455 (citations omitted). Parents cannot waive the obligation to pay and the child's right to support. Martinetti v. Hickman, 261 N.J. Super. 508, 512 (App. Div. 1993). Further, under N.J.S.A. 2A:17-56.23a, past due payments owed pursuant to child support orders cannot be modified retroactively "except with respect to the period during which there is a pending application for modification[.]" See also Mallamo v. Mallamo, 280 N.J. Super. 8, 13-14 (App. Div. 1995) (recognizing that prior to 20 A-1633-15T1 legislative action in 1993, the decision to modify or vacate child support arrears was within the discretion of the trial court). However, when a parent who owes child support is incarcerated, issues can arise from the resulting non-payment of support. Under Halliwell, a defendant who has child support obligations and is subsequently incarcerated should make a motion to suspend payment on his obligations, and thereafter will not be held in violation of litigant's rights and subject to additional enforcement proceedings. 326 N.J. Super. at 446. However, upon release, such a defendant is required to make payments to reduce any arrearages. The court should reinstate a defendant's support obligation, and "based upon his ability to pay, he will be required to pay an arrearage which will be established commensurate with his income." Id. at 460. Based on our de novo review, the trial court here erred by vacating the past due child support arrearages. As such, we reverse on this issue and remand for the trial court to calculate, based on defendant's ability to pay, the amount of arrearages due and set an appropriate payment. All remaining arguments are without sufficient merit to warrant further discussion in a written opinion. R. 2:11- 3(e)(1)(E). 21 A-1633-15T1 Affirmed in part, reversed in part. We do not retain jurisdiction. 22 A-1633-15T1
OAKS DEVELOPMENT CORP v. THE PLANNING BOARD OF THE TOWNSHIP OF OLD BRIDGE
Date: April 30, 2018
Docket Number: a2666-16
Date: April 30, 2018
Docket Number: a2666-16
POLICEMEN'SBENEVOLENT ASSOCIATION, LOCAL 277 v. CAMDEN COUNTY BOARD OF CHOSEN FREEHOLDERS
Date: April 24, 2018
Docket Number: a0497-16
Date: April 24, 2018
Docket Number: a0497-16
DIVISION OF CHILD PROTECTION AND PERMANENCY v. J.B.D., Jr
Date: April 24, 2018
Docket Number: a3364-15
Date: April 24, 2018
Docket Number: a3364-15
IN THE MATTER OF THE PROTEST OF NOTICE OF AWARD OF STATE CONTRACT #T2435 RFP #14/15-X-22848 ENVIRONMENTAL EMERGENCY RESPONSE SERVICES: NJDEP and STATEWIDE
Date: April 24, 2018
Docket Number: a5196-15
Date: April 24, 2018
Docket Number: a5196-15
NATIONWIDE LIFE INSURANCE COMPANY v. MICHELE JOY THOMPSON
Date: April 23, 2018
Docket Number: a2251-15
Date: April 23, 2018
Docket Number: a2251-15
MORRIS PLAINS HOLDING VF LLC v. MILANO FRENCH CLEANERS, INC
Date: April 20, 2018
Docket Number: a0604-16
Date: April 20, 2018
Docket Number: a0604-16
E.W. v. STATE OF NEW JERSEY DEPARTMENT OF THE TREASURY DIVISION OF PENSIONS AND BENEFITS
Date: April 20, 2018
Docket Number: a1064-16
Date: April 20, 2018
Docket Number: a1064-16
MAYWOOD REALTY ASSOCIATES LLC v. JOS. L. MUSCARELLE INVESTMENT CO., INC
Date: April 20, 2018
Docket Number: a2304-16
Date: April 20, 2018
Docket Number: a2304-16
MARK FOX v. DEBRA FOX
Date: April 20, 2018
Docket Number: a2521-15 PER CURIAM In these consolidated appeals, defendant Debra Waldorf appeals from two orders of the Family Part: a January 12, 2016 order which provided that the parties' child, L.F., continue treatment with a therapist; and a November 10, 2016 order naming plaintiff Mark Fox as the parent of primary residence (PPR) and altering the parties' parenting-time schedule without a plenary hearing.1 We affirm the January 12, 2016 order. We reverse the November 10, 2016 order and remand for a plenary hearing. I. The parties were married on January 23, 2000 and divorced on December 3, 2013. During their thirteen-year marriage, two children were born, L.F. in 2004 and A.F. in 2008. At the time of their divorce, the parties entered into a comprehensive Property Settlement Agreement (PSA) that ordered joint legal and physical custody of their children. II. We first address A-2521-15 regarding defendant's appeal of the January 12, 2016 order requiring L.F. to continue treatment with a therapist. In November 2013, prior to the parties' divorce, they consented to the appointment of a parenting coordinator. In March 1 We use initials for the children to protect their privacy. 2 A-2521-15T2 2015, with the assistance of the parenting coordinator, L.F. began therapy with Dr. Tiffani Leone-Vespa for treatment of anxiety. In October 2015, both parties signed disclosures allowing the judge to speak with Dr. Leone-Vespa regarding L.F. Shortly thereafter, motions were filed by both parties requesting a change in custody and parenting time. Pursuant to the parties' authorization, the judge requested that Dr. Leone- Vespa provide him with her opinion whether a modification to the PSA would adversely affect L.F. The doctor complied with the request by orally communicating with the judge. In November 2015, the judge ordered the parties' shared- custody designation to continue. However, the judge converted the parenting time arrangement to a week on/week off schedule to reduce stress upon the children. Defendant alleged that she first learned about the communication between the judge and Dr. Leone-Vespa after the judge rendered his decision. Defendant also alleged that she "lost faith" in Dr. Leone-Vespa based upon communication between the doctor and the judge without her consent, and the doctor's communication to plaintiff regarding her intentions. Due to the above, defendant, through her attorney, retracted consent for Dr. Leone-Vespa to treat L.F. 3 A-2521-15T2 In response, plaintiff filed an order to show cause (OTSC) requesting that L.F. continue therapy and treatment with Dr. Leone- Vespa. A telephone conference was held on December 14, 2015 to discuss whether L.F. should continue treatment with the doctor while the OTSC was pending. Subsequent to the phone conference, the judge ordered that L.F. be permitted to resume therapy with Dr. Leone-Vespa while the OTSC was pending and directed defendant to cooperate and to provide consent. The OTSC hearing was originally scheduled for late December but was postponed until January 12, 2016. While the hearing was pending, defendant filed an emergent appeal to vacate the December 15, 2015 order, which we denied. Defendant filed an OTSC in January 2016, requesting, among other things, that the judge suspend counseling between L.F. and Dr. Leone-Vespa. Attached to defendant's OTSC was a neuropsychological evaluation by Dr. Kathryn Arcari and L.F.'s medical records. On January 12, 2016, after oral argument and review of both OTSCs, the judge ordered L.F. would remain in therapy with Dr. Leone-Vespa. The judge stated his reasons on the record: But this is not about me. This is not about you. This is about [L.F.] And [L.F.] has comfort and has been seeing this woman for a substantial period of 4 A-2521-15T2 time and she has comfort with this person. This poor little girl has been poked, prodded by every conceivable medical provider known to man. And to make her start all over again, to me, would be disastrous. I know that you don’t like her, Ms. Waldorf. But you know what? I don’t care. [L.F.] likes her and it’s [L.F.'s] therapist, not your therapist. And she is going to continue to go because like I said, it is for [L.F.]; not for Ms. Waldorf. And again, to have this child again have to try to gain some rapport and as Dr. Acari [sic] indicated when []he did this, she’s tired of this nonsense. [L.F.] is tired of the two of you and the nonsense that you guys go through. She has anxiety because you guys give her anxiety. There’s no other explanation other than that. You are ruining this child. And I feel so sorry for her because she is in the middle of this. She’s a very intelligent little girl. It’s obvious from what everybody says. She gets it. She knows the two of you hate each other. And she’s put in the middle, and she’s sick of it. And she’s sick by it. And it’s your two [sic] fault. She doesn’t need to go to therapy. You two need to go to therapy. The rest of the applications are denied. She’ll continue to go. This appeal followed. On appeal, defendant raises the following points: POINT I THE TRIAL COURT DID NOT MAKE ADEQUATE FACTUAL FINDINGS OR LEGAL CONCLUSIONS WHEN GRANTING 5 A-2521-15T2 MR. FOX'S REQUESTED RELIEF IN HIS ORDER TO SHOW CAUSE AND AS A RESULT, THE COURT'S DECISION MUST BE REVERSED. POINT II THE COURT ERRED WHEN IT DID NOT HOLD A PLENARY HEARING IN THE MATTER OR, AT A MINIMUM, PERMIT ORAL ARGUMENT REGARDING THE PARTIES' DAUGHTER'S CONTINUED THERAPY WITH DR. LEONE- VESPA. Our scope of review of Family Part orders is limited, as we accord deference to the family courts due to their "special jurisdiction and expertise" in family law matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Therefore, the judge's findings are binding so long as its determinations are "supported by adequate, substantial, credible evidence." Id. at 412 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). Here, defendant argues that the judge did not make adequate factual findings or legal conclusions when it ordered L.F. to continue therapy with Dr. Leone-Vespa, per Rule 1:7-4. We disagree. Compliance with Rule 1:7-4 is crucial because "[m]eaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion." Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990). 6 A-2521-15T2 We have firmly established that "[n]aked conclusions are insufficient" and judges "must fully and specifically articulate findings of fact and conclusions of law." Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996) (citing R. 1:7-4). In short, a failure to comply with Rule 1:7-4 ordinarily results in remand. See Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008) (reversing and remanding a trial judge's child support award because it "failed to make the specific findings of fact necessary to sustain its decision regarding the amount" contained in the award). Here, in reaching the decision to have L.F. continue therapy with Dr. Leone-Vespa, the judge relied, among other factors, upon Dr. Arcari's report which he read into the record. The judge cited to Dr. Arcari's opinion that "[g]iven [L.F.]'s anxiety, important attention should be paid to her stress and worries." The judge also cited to Dr. Arcari's recommendation that "[d]ue to the amount of anxiety and stress [L.F.] is currently under, it is recommended that she continue psychotherapy to further explore her symptoms of anxiety and building coping skills to help her deal with her worries." Although the judge did not specifically reference his communications with Dr. Leone-Vespa as a factor in his decision, that does not inhibit meaningful review of the decision. It 7 A-2521-15T2 follows, inferentially, that if the judge had concerns stemming from those communications, he would have addressed them or rendered a different decision. In sum, we are satisfied that the judge made the requisite findings per Rule 1:7-4. Defendant also argues that the judge should have held a plenary hearing to resolve the issue of L.F.'s continuance of therapy with Dr. Leone-Vespa. Again, we disagree. Not every factual dispute on a motion requires a plenary hearing. "A party is entitled to a plenary hearing on her motion [only] where the evidence shows the existence of a genuine issue of material fact that she is entitled to relief." Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div. 2004) (citation omitted). Such relief is "granted sparingly." Ibid. Further, "[g]enuinely disputed issues are those having substance as opposed to insignificance." Cokus v. Bristol Myers Squibb Co., 362 N.J. Super. 366, 371 (Law Div. 2002). The matter in dispute involved a discrete issue concerning a medical decision for L.F. As noted in Hand v. Hand, "Family Part judges are frequently called upon to make difficult and sensitive decisions regarding the safety and well-being of children. Because of their special expertise in family matters, we do not second- guess their findings and the exercise of their sound discretion." 8 A-2521-15T2 391 N.J. Super. 102, 111 (App. Div. 2007); see also Cesare, 154 N.J. at 413. Here, the judge considered both parties' arguments in reaching his decision. The judge also relied upon his considerable experience with the parties, with L.F., and the bases for the provision of L.F.'s therapy. In sum, we are satisfied that the decision was appropriately informed and discern no abuse of discretion by the judge in not conducting a plenary hearing. III. We next address A-1568-16 regarding defendant's appeal of the November 10, 2016 order, which altered the parties' parenting time and named plaintiff as the PPR. The final judgment of divorce provided for compliance with the PSA, which ordered shared joint legal and physical custody of the children with both parties acting as PPR. Article IV, section 1 of the PSA outlined the custody and the parenting time schedule as follows: [T]he parties agree they shall exercise parenting time with [defendant] enjoying every Monday and Tuesday overnight from after school until the children are returned to school the next day and every other weekend from Friday night after school through Monday morning when the children are returned to school. [Plaintiff] shall enjoy parenting time every Wednesday and Thursday overnight from after school until the children are returned to school the next day and every other weekend 9 A-2521-15T2 from Friday after school through Monday morning when the children are returned to school. Additionally, regarding "Joint Decision Making" under section 9, the PSA provided: "Neither party shall be permitted to make any medical decisions, including scheduling doctor's appointments, providing prescription medications, or making any other major medical decisions absent notification and consent of the other party." A parent coordinator was appointed to assist the parties with decisions about the children. Since their divorce, the parties have engaged in a pattern of acrimonious motion practice concerning medical, educational, and social decisions for the children. Both parties filed motions in September 2015, requesting a modification of the parenting time schedule and a request to obtain primary residential custody. Having the parties' signed authorization that permitted discussion with the therapist, the judge contacted Dr. Leone-Vespa regarding his proposed modification of parenting time. In November 2015, in accordance with this discussion, the judge ordered the parties to continue the shared-custody designation with parenting time to continue on a week on/week off schedule. In September 2016, Dr. Leone-Vespa had an emergency phone session with L.F. regarding an incident that occurred at school. L.F. told her guidance counselor that she wanted to hurt herself 10 A-2521-15T2 and "would do so by taking a pill." Dr. Leone-Vespa noted that L.F. was feeling constantly stressed and was "suffering internally." A few days later, L.F. suffered a breakdown and was taken to the emergency room by defendant. Soon after L.F.'s discharge from the hospital, defendant filed an OTSC requesting L.F. acquire services provided by the mobile crisis unit in the area. In response, the judge conducted conferences with L.F. and counsel to discuss concerns regarding the joint custodial relationship of the parties and its impact upon the children. In October 2016, plaintiff filed a notice of motion for sole custody and for his designation as the decision-making authority. Two weeks later, a notice of cross-motion was filed by defendant requesting, among other relief, to deny plaintiff's motion and designate defendant as the PPR for all medical decisions. Oral argument was heard on October 28, 2016. The judge, in a written memorandum dated November 10, 2016, concluded "[L.F.] fe[lt] directly in the middle of the dispute[,]" and further stated, [s]he agonizes over the simplest of decisions because every action or decision she makes is agonized over by her parents. This child has been poked and prodded by every conceivable health care provider, and her mental health continues to deteriorate. The war that is 11 A-2521-15T2 being waged by her parents has significantly caused [L.F.]'s distress. The judge also held that "[b]oth parents acknowledge and request this court to appoint one of them as the 'decision-making parent[,'] to hopefully end this battle and ease [L.F.]'s distress." The judge further explained his reasons for appointing plaintiff as the decision-making parent, finding plaintiff could provide the most comfort to L.F. and could be more available due to the parties' employment responsibilities. The judge specified that both parties would continue to share joint custody of the children and that plaintiff would be the PPR. As to the parenting time schedule, the judge held: During the school year, [plaintiff] shall have the children after school on Monday to Friday when he drops them off at school. [Defendant] will have the children Friday after school to Monday morning when she will be responsible for getting the children to school. Additionally, for the months of September through May, [plaintiff] will have the children on the third Saturday of the month starting at 2 p.m. and he will be responsible for getting them to school on Monday. On Tuesday following this weekend, [defendant] will have the children after school until Wednesday morning when she will be responsible for dropping them off at school. During the summer/school recess, [defendant] will have the children from Monday morning to Saturday at 6 p.m. on the first full week the children are off school, then to Saturday at 10 a.m. the next week. This 12 A-2521-15T2 shall rotate every week thereafter until school begins again. [Plaintiff] shall have the remaining time. The judge found that "due to [plaintiff's] availability before and after school, this schedule limits the time the children spend with [c]aregivers as opposed to their parents. Moreover, this schedule will provide consistency during the school year which will benefit the children as well." This appeal followed. On appeal, defendant raises the following points: POINT I THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DID NOT ENGAGE IN ANY LEGAL ANALYSIS OR MAKE FACTUAL FINDINGS SUPPORTING ITS DECISION CHANGING THE PARTIES' PHYSICAL CUSTODY ARRANGEMENT. POINT II MR. FOX DID NOT PRESENT CHANGED CIRCUMSTANCES PERMITTING HIS REQUEST TO CHANGE THE PARTIES' PARENTING TIME TO PROCEED. POINT III EVEN IF THE COURT FINDS MR. FOX PRESENTED CHANGED CIRCUMSTANCES WARRANTING A REVIEW OF THE PARTIES' PARENTING TIME PLAN, THE COURT COMMITTED REVERSIBLE ERROR WHEN IT CHANGED THE PARTIES' CUSTODY ARRANGEMENT WITHOUT ORDERING A PLENARY HEARING IN THIS MATTER. POINT IV THE TRIAL COURT'S DESIGNATION OF MR. FOX AS THE PARENT OF PRIMARY RESIDENCE HAVING ALL DECISION-MAKING AUTHORITY IN EFFECT GAVE MR. FOX SOLE LEGAL CUSTODY OF THE CHILDREN AND 13 A-2521-15T2 SUCH WAS ERRONEOUS AS THE COURT FAILED TO FIND CHANGED CIRCUMSTANCES EXISTED WARRANTING A CHANGE, FAILED TO HAVE A HEARING AND FAILED TO MAKE THE REQUISITE FACTUAL FINDINGS AND LEGAL CONCLUSIONS. POINT V THE TRIAL COURT'S DECISION ASSIGNING MR. FOX AS THE DECISION-MAKING PARENT MUST BE REVERSED AS DISPUTED ISSUES OF MATERIAL FACT EXISTED AS TO WHO WOULD BETTER SERVE IN THE ROLE AS THE DECISION-MAKING PARENT. In essence, defendant argues that a plenary hearing was required before altering the parties' parenting plan. Defendant argues there are several disputed material facts regarding the parties' ability to cooperate and communicate, and L.F.'s preferences and needs. Scheduling parenting time based upon a determination of children's best interests is a matter of sound judicial discretion. See Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 157 (App. Div. 2003). After a party makes a showing of changed circumstances relating to parenting time, the trial judge must determine if a plenary hearing is required. Hand, 391 N.J. Super. at 105 (citing Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976)). The judge has the power "to hear and decide motions or orders to show cause exclusively upon affidavits." Shaw, 138 N.J. Super. at 440. "It is only where the affidavits show that there is a genuine issue as to a material fact, and that the trial judge determines 14 A-2521-15T2 that a plenary hearing would be helpful in deciding such factual issues, that a plenary hearing is required." Ibid.; see also Lepis v. Lepis, 83 N.J. 139, 159 (1980) (holding the moving party "must clearly demonstrate the existence of a genuine issue as to a material fact before a hearing is necessary" because without such a standard, courts would impracticably be obligated to hold hearings for every requested modification). "[W]here the need for a plenary hearing is not so obvious, the threshold issue is whether the movant has made a prima facie showing that a plenary hearing is necessary." Hand, 391 N.J. Super. at 106. We review a court's decision whether a plenary hearing is required for an abuse of discretion. Costa v. Costa, 440 N.J. Super. 1, 4 (App. Div. 2015). Parental rights to custody and visitation are held "in high esteem" and are guaranteed judicial protection. Wilke v. Culp, 196 N.J. Super. 487, 496 (App. Div. 1984). Our courts are committed to the principle that "children of separated parents should be imbued with love and respect for both parents, and where children are in [the] custody of one parent, the court should endeavor to effect this facet of the children's welfare by conferring reasonable rights of visitation on the other parent." Ibid. "[T]he matter of visitation is so important, especially during the formative years of a child, that if a plenary hearing 15 A-2521-15T2 will better enable a court to fashion a plan of visitation more commensurate with a child's welfare, nonetheless it should require it." Wagner v. Wagner, 165 N.J. Super. 553, 555 (App. Div. 1979). Further, where the parties' certifications are conflicting, a plenary hearing before reducing parenting time will usually be required. See ibid. The record here consisted of the parties' conflicting certifications. The certifications were replete with disputed facts, cross accusations, and allegations about improper motivations. In her certification, defendant alleged, among other things, that plaintiff would not cooperate or agree to certain parenting decisions. In his certification, plaintiff alleged, among other things, that defendant's work schedule and her inability to cooperate caused stress in the children. We conclude that these conflicting certifications presented material issues in dispute on significant parent-child matters that were not amenable to resolution in a summary proceeding. Notwithstanding the judge's considerable experience with the family and the myriad of matters in conflict over parenting by the parties, the resolution of these important issues should have abided a plenary hearing. Finally, in reaching our determination that a plenary hearing is required, we express no view on the outcome of that hearing. 16 A-2521-15T2 We add that any parenting time schedule pursuant to a legal joint custody arrangement requires "at least minimal parental cooperation . . . ." Beck v. Beck, 86 N.J. 480, 499 (1981). We also add that in a determination of the parenting time schedule, the judge should consider the mutual goals of fostering the parent- child relationship and safeguarding the children's best interests. Again, inherent to that determination is an evaluation of the parents' ability to cooperate and to set aside their conflicts. Id. at 498-99. Affirmed in part, reversed in part. The matter is remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. 17 A-2521-15T2
Date: April 20, 2018
Docket Number: a2521-15 PER CURIAM In these consolidated appeals, defendant Debra Waldorf appeals from two orders of the Family Part: a January 12, 2016 order which provided that the parties' child, L.F., continue treatment with a therapist; and a November 10, 2016 order naming plaintiff Mark Fox as the parent of primary residence (PPR) and altering the parties' parenting-time schedule without a plenary hearing.1 We affirm the January 12, 2016 order. We reverse the November 10, 2016 order and remand for a plenary hearing. I. The parties were married on January 23, 2000 and divorced on December 3, 2013. During their thirteen-year marriage, two children were born, L.F. in 2004 and A.F. in 2008. At the time of their divorce, the parties entered into a comprehensive Property Settlement Agreement (PSA) that ordered joint legal and physical custody of their children. II. We first address A-2521-15 regarding defendant's appeal of the January 12, 2016 order requiring L.F. to continue treatment with a therapist. In November 2013, prior to the parties' divorce, they consented to the appointment of a parenting coordinator. In March 1 We use initials for the children to protect their privacy. 2 A-2521-15T2 2015, with the assistance of the parenting coordinator, L.F. began therapy with Dr. Tiffani Leone-Vespa for treatment of anxiety. In October 2015, both parties signed disclosures allowing the judge to speak with Dr. Leone-Vespa regarding L.F. Shortly thereafter, motions were filed by both parties requesting a change in custody and parenting time. Pursuant to the parties' authorization, the judge requested that Dr. Leone- Vespa provide him with her opinion whether a modification to the PSA would adversely affect L.F. The doctor complied with the request by orally communicating with the judge. In November 2015, the judge ordered the parties' shared- custody designation to continue. However, the judge converted the parenting time arrangement to a week on/week off schedule to reduce stress upon the children. Defendant alleged that she first learned about the communication between the judge and Dr. Leone-Vespa after the judge rendered his decision. Defendant also alleged that she "lost faith" in Dr. Leone-Vespa based upon communication between the doctor and the judge without her consent, and the doctor's communication to plaintiff regarding her intentions. Due to the above, defendant, through her attorney, retracted consent for Dr. Leone-Vespa to treat L.F. 3 A-2521-15T2 In response, plaintiff filed an order to show cause (OTSC) requesting that L.F. continue therapy and treatment with Dr. Leone- Vespa. A telephone conference was held on December 14, 2015 to discuss whether L.F. should continue treatment with the doctor while the OTSC was pending. Subsequent to the phone conference, the judge ordered that L.F. be permitted to resume therapy with Dr. Leone-Vespa while the OTSC was pending and directed defendant to cooperate and to provide consent. The OTSC hearing was originally scheduled for late December but was postponed until January 12, 2016. While the hearing was pending, defendant filed an emergent appeal to vacate the December 15, 2015 order, which we denied. Defendant filed an OTSC in January 2016, requesting, among other things, that the judge suspend counseling between L.F. and Dr. Leone-Vespa. Attached to defendant's OTSC was a neuropsychological evaluation by Dr. Kathryn Arcari and L.F.'s medical records. On January 12, 2016, after oral argument and review of both OTSCs, the judge ordered L.F. would remain in therapy with Dr. Leone-Vespa. The judge stated his reasons on the record: But this is not about me. This is not about you. This is about [L.F.] And [L.F.] has comfort and has been seeing this woman for a substantial period of 4 A-2521-15T2 time and she has comfort with this person. This poor little girl has been poked, prodded by every conceivable medical provider known to man. And to make her start all over again, to me, would be disastrous. I know that you don’t like her, Ms. Waldorf. But you know what? I don’t care. [L.F.] likes her and it’s [L.F.'s] therapist, not your therapist. And she is going to continue to go because like I said, it is for [L.F.]; not for Ms. Waldorf. And again, to have this child again have to try to gain some rapport and as Dr. Acari [sic] indicated when []he did this, she’s tired of this nonsense. [L.F.] is tired of the two of you and the nonsense that you guys go through. She has anxiety because you guys give her anxiety. There’s no other explanation other than that. You are ruining this child. And I feel so sorry for her because she is in the middle of this. She’s a very intelligent little girl. It’s obvious from what everybody says. She gets it. She knows the two of you hate each other. And she’s put in the middle, and she’s sick of it. And she’s sick by it. And it’s your two [sic] fault. She doesn’t need to go to therapy. You two need to go to therapy. The rest of the applications are denied. She’ll continue to go. This appeal followed. On appeal, defendant raises the following points: POINT I THE TRIAL COURT DID NOT MAKE ADEQUATE FACTUAL FINDINGS OR LEGAL CONCLUSIONS WHEN GRANTING 5 A-2521-15T2 MR. FOX'S REQUESTED RELIEF IN HIS ORDER TO SHOW CAUSE AND AS A RESULT, THE COURT'S DECISION MUST BE REVERSED. POINT II THE COURT ERRED WHEN IT DID NOT HOLD A PLENARY HEARING IN THE MATTER OR, AT A MINIMUM, PERMIT ORAL ARGUMENT REGARDING THE PARTIES' DAUGHTER'S CONTINUED THERAPY WITH DR. LEONE- VESPA. Our scope of review of Family Part orders is limited, as we accord deference to the family courts due to their "special jurisdiction and expertise" in family law matters. Cesare v. Cesare, 154 N.J. 394, 413 (1998). Therefore, the judge's findings are binding so long as its determinations are "supported by adequate, substantial, credible evidence." Id. at 412 (citing Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65 N.J. 474, 484 (1974)). Here, defendant argues that the judge did not make adequate factual findings or legal conclusions when it ordered L.F. to continue therapy with Dr. Leone-Vespa, per Rule 1:7-4. We disagree. Compliance with Rule 1:7-4 is crucial because "[m]eaningful appellate review is inhibited unless the judge sets forth the reasons for his or her opinion." Salch v. Salch, 240 N.J. Super. 441, 443 (App. Div. 1990). 6 A-2521-15T2 We have firmly established that "[n]aked conclusions are insufficient" and judges "must fully and specifically articulate findings of fact and conclusions of law." Heinl v. Heinl, 287 N.J. Super. 337, 347 (App. Div. 1996) (citing R. 1:7-4). In short, a failure to comply with Rule 1:7-4 ordinarily results in remand. See Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008) (reversing and remanding a trial judge's child support award because it "failed to make the specific findings of fact necessary to sustain its decision regarding the amount" contained in the award). Here, in reaching the decision to have L.F. continue therapy with Dr. Leone-Vespa, the judge relied, among other factors, upon Dr. Arcari's report which he read into the record. The judge cited to Dr. Arcari's opinion that "[g]iven [L.F.]'s anxiety, important attention should be paid to her stress and worries." The judge also cited to Dr. Arcari's recommendation that "[d]ue to the amount of anxiety and stress [L.F.] is currently under, it is recommended that she continue psychotherapy to further explore her symptoms of anxiety and building coping skills to help her deal with her worries." Although the judge did not specifically reference his communications with Dr. Leone-Vespa as a factor in his decision, that does not inhibit meaningful review of the decision. It 7 A-2521-15T2 follows, inferentially, that if the judge had concerns stemming from those communications, he would have addressed them or rendered a different decision. In sum, we are satisfied that the judge made the requisite findings per Rule 1:7-4. Defendant also argues that the judge should have held a plenary hearing to resolve the issue of L.F.'s continuance of therapy with Dr. Leone-Vespa. Again, we disagree. Not every factual dispute on a motion requires a plenary hearing. "A party is entitled to a plenary hearing on her motion [only] where the evidence shows the existence of a genuine issue of material fact that she is entitled to relief." Eaton v. Grau, 368 N.J. Super. 215, 222 (App. Div. 2004) (citation omitted). Such relief is "granted sparingly." Ibid. Further, "[g]enuinely disputed issues are those having substance as opposed to insignificance." Cokus v. Bristol Myers Squibb Co., 362 N.J. Super. 366, 371 (Law Div. 2002). The matter in dispute involved a discrete issue concerning a medical decision for L.F. As noted in Hand v. Hand, "Family Part judges are frequently called upon to make difficult and sensitive decisions regarding the safety and well-being of children. Because of their special expertise in family matters, we do not second- guess their findings and the exercise of their sound discretion." 8 A-2521-15T2 391 N.J. Super. 102, 111 (App. Div. 2007); see also Cesare, 154 N.J. at 413. Here, the judge considered both parties' arguments in reaching his decision. The judge also relied upon his considerable experience with the parties, with L.F., and the bases for the provision of L.F.'s therapy. In sum, we are satisfied that the decision was appropriately informed and discern no abuse of discretion by the judge in not conducting a plenary hearing. III. We next address A-1568-16 regarding defendant's appeal of the November 10, 2016 order, which altered the parties' parenting time and named plaintiff as the PPR. The final judgment of divorce provided for compliance with the PSA, which ordered shared joint legal and physical custody of the children with both parties acting as PPR. Article IV, section 1 of the PSA outlined the custody and the parenting time schedule as follows: [T]he parties agree they shall exercise parenting time with [defendant] enjoying every Monday and Tuesday overnight from after school until the children are returned to school the next day and every other weekend from Friday night after school through Monday morning when the children are returned to school. [Plaintiff] shall enjoy parenting time every Wednesday and Thursday overnight from after school until the children are returned to school the next day and every other weekend 9 A-2521-15T2 from Friday after school through Monday morning when the children are returned to school. Additionally, regarding "Joint Decision Making" under section 9, the PSA provided: "Neither party shall be permitted to make any medical decisions, including scheduling doctor's appointments, providing prescription medications, or making any other major medical decisions absent notification and consent of the other party." A parent coordinator was appointed to assist the parties with decisions about the children. Since their divorce, the parties have engaged in a pattern of acrimonious motion practice concerning medical, educational, and social decisions for the children. Both parties filed motions in September 2015, requesting a modification of the parenting time schedule and a request to obtain primary residential custody. Having the parties' signed authorization that permitted discussion with the therapist, the judge contacted Dr. Leone-Vespa regarding his proposed modification of parenting time. In November 2015, in accordance with this discussion, the judge ordered the parties to continue the shared-custody designation with parenting time to continue on a week on/week off schedule. In September 2016, Dr. Leone-Vespa had an emergency phone session with L.F. regarding an incident that occurred at school. L.F. told her guidance counselor that she wanted to hurt herself 10 A-2521-15T2 and "would do so by taking a pill." Dr. Leone-Vespa noted that L.F. was feeling constantly stressed and was "suffering internally." A few days later, L.F. suffered a breakdown and was taken to the emergency room by defendant. Soon after L.F.'s discharge from the hospital, defendant filed an OTSC requesting L.F. acquire services provided by the mobile crisis unit in the area. In response, the judge conducted conferences with L.F. and counsel to discuss concerns regarding the joint custodial relationship of the parties and its impact upon the children. In October 2016, plaintiff filed a notice of motion for sole custody and for his designation as the decision-making authority. Two weeks later, a notice of cross-motion was filed by defendant requesting, among other relief, to deny plaintiff's motion and designate defendant as the PPR for all medical decisions. Oral argument was heard on October 28, 2016. The judge, in a written memorandum dated November 10, 2016, concluded "[L.F.] fe[lt] directly in the middle of the dispute[,]" and further stated, [s]he agonizes over the simplest of decisions because every action or decision she makes is agonized over by her parents. This child has been poked and prodded by every conceivable health care provider, and her mental health continues to deteriorate. The war that is 11 A-2521-15T2 being waged by her parents has significantly caused [L.F.]'s distress. The judge also held that "[b]oth parents acknowledge and request this court to appoint one of them as the 'decision-making parent[,'] to hopefully end this battle and ease [L.F.]'s distress." The judge further explained his reasons for appointing plaintiff as the decision-making parent, finding plaintiff could provide the most comfort to L.F. and could be more available due to the parties' employment responsibilities. The judge specified that both parties would continue to share joint custody of the children and that plaintiff would be the PPR. As to the parenting time schedule, the judge held: During the school year, [plaintiff] shall have the children after school on Monday to Friday when he drops them off at school. [Defendant] will have the children Friday after school to Monday morning when she will be responsible for getting the children to school. Additionally, for the months of September through May, [plaintiff] will have the children on the third Saturday of the month starting at 2 p.m. and he will be responsible for getting them to school on Monday. On Tuesday following this weekend, [defendant] will have the children after school until Wednesday morning when she will be responsible for dropping them off at school. During the summer/school recess, [defendant] will have the children from Monday morning to Saturday at 6 p.m. on the first full week the children are off school, then to Saturday at 10 a.m. the next week. This 12 A-2521-15T2 shall rotate every week thereafter until school begins again. [Plaintiff] shall have the remaining time. The judge found that "due to [plaintiff's] availability before and after school, this schedule limits the time the children spend with [c]aregivers as opposed to their parents. Moreover, this schedule will provide consistency during the school year which will benefit the children as well." This appeal followed. On appeal, defendant raises the following points: POINT I THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DID NOT ENGAGE IN ANY LEGAL ANALYSIS OR MAKE FACTUAL FINDINGS SUPPORTING ITS DECISION CHANGING THE PARTIES' PHYSICAL CUSTODY ARRANGEMENT. POINT II MR. FOX DID NOT PRESENT CHANGED CIRCUMSTANCES PERMITTING HIS REQUEST TO CHANGE THE PARTIES' PARENTING TIME TO PROCEED. POINT III EVEN IF THE COURT FINDS MR. FOX PRESENTED CHANGED CIRCUMSTANCES WARRANTING A REVIEW OF THE PARTIES' PARENTING TIME PLAN, THE COURT COMMITTED REVERSIBLE ERROR WHEN IT CHANGED THE PARTIES' CUSTODY ARRANGEMENT WITHOUT ORDERING A PLENARY HEARING IN THIS MATTER. POINT IV THE TRIAL COURT'S DESIGNATION OF MR. FOX AS THE PARENT OF PRIMARY RESIDENCE HAVING ALL DECISION-MAKING AUTHORITY IN EFFECT GAVE MR. FOX SOLE LEGAL CUSTODY OF THE CHILDREN AND 13 A-2521-15T2 SUCH WAS ERRONEOUS AS THE COURT FAILED TO FIND CHANGED CIRCUMSTANCES EXISTED WARRANTING A CHANGE, FAILED TO HAVE A HEARING AND FAILED TO MAKE THE REQUISITE FACTUAL FINDINGS AND LEGAL CONCLUSIONS. POINT V THE TRIAL COURT'S DECISION ASSIGNING MR. FOX AS THE DECISION-MAKING PARENT MUST BE REVERSED AS DISPUTED ISSUES OF MATERIAL FACT EXISTED AS TO WHO WOULD BETTER SERVE IN THE ROLE AS THE DECISION-MAKING PARENT. In essence, defendant argues that a plenary hearing was required before altering the parties' parenting plan. Defendant argues there are several disputed material facts regarding the parties' ability to cooperate and communicate, and L.F.'s preferences and needs. Scheduling parenting time based upon a determination of children's best interests is a matter of sound judicial discretion. See Abouzahr v. Matera-Abouzahr, 361 N.J. Super. 135, 157 (App. Div. 2003). After a party makes a showing of changed circumstances relating to parenting time, the trial judge must determine if a plenary hearing is required. Hand, 391 N.J. Super. at 105 (citing Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976)). The judge has the power "to hear and decide motions or orders to show cause exclusively upon affidavits." Shaw, 138 N.J. Super. at 440. "It is only where the affidavits show that there is a genuine issue as to a material fact, and that the trial judge determines 14 A-2521-15T2 that a plenary hearing would be helpful in deciding such factual issues, that a plenary hearing is required." Ibid.; see also Lepis v. Lepis, 83 N.J. 139, 159 (1980) (holding the moving party "must clearly demonstrate the existence of a genuine issue as to a material fact before a hearing is necessary" because without such a standard, courts would impracticably be obligated to hold hearings for every requested modification). "[W]here the need for a plenary hearing is not so obvious, the threshold issue is whether the movant has made a prima facie showing that a plenary hearing is necessary." Hand, 391 N.J. Super. at 106. We review a court's decision whether a plenary hearing is required for an abuse of discretion. Costa v. Costa, 440 N.J. Super. 1, 4 (App. Div. 2015). Parental rights to custody and visitation are held "in high esteem" and are guaranteed judicial protection. Wilke v. Culp, 196 N.J. Super. 487, 496 (App. Div. 1984). Our courts are committed to the principle that "children of separated parents should be imbued with love and respect for both parents, and where children are in [the] custody of one parent, the court should endeavor to effect this facet of the children's welfare by conferring reasonable rights of visitation on the other parent." Ibid. "[T]he matter of visitation is so important, especially during the formative years of a child, that if a plenary hearing 15 A-2521-15T2 will better enable a court to fashion a plan of visitation more commensurate with a child's welfare, nonetheless it should require it." Wagner v. Wagner, 165 N.J. Super. 553, 555 (App. Div. 1979). Further, where the parties' certifications are conflicting, a plenary hearing before reducing parenting time will usually be required. See ibid. The record here consisted of the parties' conflicting certifications. The certifications were replete with disputed facts, cross accusations, and allegations about improper motivations. In her certification, defendant alleged, among other things, that plaintiff would not cooperate or agree to certain parenting decisions. In his certification, plaintiff alleged, among other things, that defendant's work schedule and her inability to cooperate caused stress in the children. We conclude that these conflicting certifications presented material issues in dispute on significant parent-child matters that were not amenable to resolution in a summary proceeding. Notwithstanding the judge's considerable experience with the family and the myriad of matters in conflict over parenting by the parties, the resolution of these important issues should have abided a plenary hearing. Finally, in reaching our determination that a plenary hearing is required, we express no view on the outcome of that hearing. 16 A-2521-15T2 We add that any parenting time schedule pursuant to a legal joint custody arrangement requires "at least minimal parental cooperation . . . ." Beck v. Beck, 86 N.J. 480, 499 (1981). We also add that in a determination of the parenting time schedule, the judge should consider the mutual goals of fostering the parent- child relationship and safeguarding the children's best interests. Again, inherent to that determination is an evaluation of the parents' ability to cooperate and to set aside their conflicts. Id. at 498-99. Affirmed in part, reversed in part. The matter is remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. 17 A-2521-15T2
GLASSBORO GUARDIANS v. BOROUGH OF GLASSBORO GLASSBORO GUARDIANS
Date: April 18, 2018
Docket Number: a1670-16 PER CURIAM In these appeals, we consider whether the trial judge erred in finding a 2004 ordinance, which required all rental properties within the municipality to "provide a minimum of one off-street parking space for every one authorized occupant 18 years of age or more," to be arbitrary and capricious. Because we agree the record fails to disclose a rational reason for the ordinance, we affirm. Glassboro Guardians, a non-profit corporation comprised of individuals who own rental properties within the municipality, challenged Ordinance No. 379-5(I), adopted on July 27, 2004, which declares in subsection (1): Every rental facility shall provide a minimum of one off-street parking space for every one authorized occupant 18 years of age or more, as approved by the Housing Officer pursuant to the following requirements. For owner- occupied rental facilities, such requirements shall be in addition to those spaces required for residential use other than the rental facility portion of the premises. Said parking spaces shall be a minimum of 10 feet by 20 2 A-1670-16T3 feet. Parking areas must be maintained and configured so as not to create a safety hazard to the tenants using the areas or to any drivers or pedestrians on the public right- of-way, and in such a manner that does not cause inconvenience to the occupants. We previously vacated a summary judgment entered in Guardians' favor and remanded for further consideration as to whether there was a rational basis for the ordinance's adoption. Glassboro Guardians v. Borough of Glassboro, No. A-4001-12 (App. Div. Nov. 5, 2014). On remand, Guardians claimed the ordinance: (1) was arbitrary, capricious, and unreasonable; (2) was improperly enacted under the municipality's police power; (3) violated the equal protection clause of the New Jersey Constitution as well as the New Jersey Civil Rights Act, N.J.S.A. 10:6-2; and (4) was void due to the alleged involvement of a councilman with a conflict of interest. The trial judge ruled, based on factual findings made at the conclusion of a three-day trial, that, among other things, "[t]here has been adduced no reason which was articulated contemporaneous with the governmental action" and, consequently, the ordinance was arbitrary, capricious, and unreasonable. In appealing, the municipality argues:1 I. THE TRIAL COURT ERRED IN DECLARING THE ORDINANCE VOID AND UNENFORCEABLE ON THE BASIS 1 We have renumbered the municipality's arguments. 3 A-1670-16T3 THAT IT WAS ARBITRARY, CAPRICIOUS, AND UNREASONABLE. II. [GUARDIANS] DID NOT MEET ITS HEAVY BURDEN OF DEMONSTRATING THE ABSENCE OF ANY RATIONAL BASIS FOR THE ORDINANCE. III. [THE MUNICIPALITY] ESTABLISHED THE CONTEMPORANEOUS RATIONAL BASIS FOR THE ORDINANCE THROUGH THE TESTIMONY OF ITS COUNCIL MEMBERS AND HOUSING INSPECTION OFFICIALS. IV. THE TRIAL COURT ERRED IN CONCLUDING THAT THE ORDINANCE IS INHERENTLY UNREASONABLE BECAUSE IT REQUIRES A PARKING SPACE FOR EVERY TENANT AND DOES NOT PROVIDE A MEANINGFUL METHOD TO OBTAIN RELIEF FROM THE REQUIREMENT. In a separate appeal, Guardians questions the trial judge's failure to find the ordinance invalid on the other challenged grounds. Guardians contends: I. THE [TRIAL COURT] ERRED IN CONCLUDING THAT IT WAS APPROPRIATE FOR THESE PARKING REGULATIONS FOR PRIVATE PROPERTY IN THE RENTAL HOUSING ORDINANCE TO BE PLACED IN A GENERAL POLICE POWER ORDINANCE AND NOT IN A ZONING ORDINANCE. II. THE [TRIAL COURT] ERRED IN CONCLUDING THAT THE RENTAL PARKING ORDINANCE DID NOT VIOLATE THE NEW JERSEY EQUAL PROTECTION CLAUSE AND THE NEW JERSEY CIVIL RIGHTS ACT. III. THE [TRIAL COURT] ERRED IN CONCLUDING THAT THE RENTAL HOUSING ORDINANCE SHOULD NOT BE INVALIDATED BECAUSE OF THE ACTIONS OF COUNCILMAN D'ALESSANDRO. 4 A-1670-16T3 Because we affirm the trial judge's determination that the ordinance is arbitrary, capricious, and unreasonable, we need not reach the alternative grounds suggested by Guardians. Our standard of review counsels that we not interfere with a trial judge's fact findings when supported by adequate, substantial and credible evidence, unless the findings would work an injustice. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We grant such deference to judge- made findings because the trial judge has the opportunity to hear and see all the witnesses and to review all evidence in the first instance, thus allowing for a better "feel" of the case than we can gain from a static record. Twp. of W. Windsor v. Nierenberg, 150 N.J. 111, 132-33 (1997). For this reason, credibility determinations are entitled to particular deference. Ibid. We also start with the premise that municipal ordinances are presumed valid; consequently, a challenger has a heavy burden in seeking to overturn them. Quick Chek Food Stores v. Twp. of Springfield, 83 N.J. 438, 447 (1980); see also Berk Cohen Assocs. at Rustic Village, LLC v. Borough of Clayton, 199 N.J. 432, 445- 47 (2009). To overturn an ordinance, a challenger must clearly show the ordinance is arbitrary, capricious or unreasonable, Bryant v. City of Atlantic City, 309 N.J. Super. 596, 610 (App. Div. 1998), because "the underlying policy and wisdom" of an 5 A-1670-16T3 ordinance is assumed to reside with the governing body, not the courts, which are strangers to the controversy, Quick Chek, 83 N.J. at 447. For these reasons, an ordinance will not be set aside if any set of reasonable facts justifies the ordinance. Ibid. In considering a challenge, a court must examine "the relationship between the means and ends of the ordinance." Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 290 (2001). Although a court will not inquire into a municipality's motives when the ordinance is valid on its face, a court will weigh evidence about the legislative purpose "when the reasonableness of the enactment is not apparent on its face." Riggs v. Long Beach Township, 109 N.J. 601, 613 (1988). Reviewing the ordinance facially, the trial judge observed the lack of any "introductory language" or "statement of reasons" justifying or even just explaining why it was enacted. Because of the lack of such an explanation, the trial judge examined its legislative history but found that work session and council meeting minutes also offered "no statement of reasons, elucidation of issues raised or problems sought to be solved . . . virtually no discussion of substance of the parking ordinance, no public comment by council members and no comment from the public." The record does show the discussion of the ordinance in one instance: a May 6 A-1670-16T3 6, 2004 council meeting where a councilperson drew a distinction between how the ordinance would affect "college rental" and "family rental" parking, stating that a college rental needs one space per tenant while a family rental could obtain a "parking decal" to park on the street.2 As additional evidence that the ordinance was enacted without a reasonable basis, Guardians presented the testimony of two representatives – rental property owners in Glassboro – and an expert. The trial judge accepted as credible the representatives' testimony which suggested the ordinance was enacted to control college student renters. The trial also judge found credible testimony that in various conversations the witnesses had with municipal officials no parking problem was ever mentioned as a reason for the ordinance's enactment. The judge relied on testimony regarding conversations the witnesses had with council members and administrators where a parking problem was never identified or discussed as a reason for the ordinance's enactment. In addition, the trial judge found credible references to: the municipality's claimed intent to control "animal houses"; a "stack of police reports" relating to college renters; residents' complaints about 2 Even though there was a dispute about the identity of the speaker of these comments, no one disputes the comments were made by a member of the municipal council. 7 A-1670-16T3 college renters; and the "inadequate 'strictness' of the state rental code" as reasons for the enactment of the parking ordinance as the means for gaining control of college student renters. The judge found this testimony credible because it was corroborated, "albeit reluctantly," by the municipality's witnesses. The municipality relied on the testimony of an expert and numerous town officials. The expert testified there was a "parking problem" in the municipality based upon his personal observations. And the expert extrapolated the reasons for the ordinance, citing an increased enrollment at Rowan University, an increased number of vehicles in town, and alleged safety concerns and tenant convenience.3 The judge rejected this testimony because it was uncorroborated by any reference in the record. The judge also found testimony by council members serving when the ordinance was enacted to be unhelpful to the municipality's position because those council members claimed "no recollection of why [the ordinance] was passed or what problem they were trying to solve [and] . . . recalled no public outcry or even a whimper that prompted their action."4 The trial judge noted there was only a 3 The expert testified that the population has fluctuated around 19,000 residents over since 2000. 4 One council member testified the ordinance was to ensure the "environment was not overflowing with cars and that cars would not 8 A-1670-16T3 "general denial" that the ordinance was enacted to "constrict college rentals." The municipality also argued the reasons for enacting the current ordinance are set out in its preceding 1972 ordinance,5 but that ordinance only states that it was enacted "after much study" without explanation as to what that study involved or what it revealed. Finding an absence of a purpose for the ordinance – and, if there was a purpose, it was more than likely to combat concerns about college renters – the judge concluded the ordinance was arbitrary, capricious and unreasonable. We agree, concluding that the jduge's findings were supported by credible, adequate, and substantial evidence in the record. The municipality additionally challenges the fact that the trial judge applied a standard that required a contemporaneous reason be given for municipal action. This argument misapprehends the trial judge's holding. The judge, in concluding the ordinance's adoption was arbitrary, capricious, and unreasonable, found the record lacked any reason or purpose "articulated contemporaneous be parking on the streets" but does not recall any member of the public coming to council meetings to complain about parking issues in the town. 5 Similar to the current ordinance, the 1972 ordinance required every residential unit have one parking spaces for every three occupants seventeen years or older. 9 A-1670-16T3 with the governmental action." But the judge did not create a standard imposing such a requirement; rather, the judge found the lack of any contemporaneous reasoning as evidence that discredited the municipality's witnesses assertion that there was a reason and as giving rise to an inference that the ordinance lacked a rational basis and was merely a means to unlawfully limit college renters in the municipality. As the judge determined, the "explanations" offered by the municipality were "not grounded in any facts of record and in fact, are at odds with the inability of any witness to recall or relate the actual basis for the government action." The trial judge also explained that the legal arguments and expert testimony presented by the municipality would not be "the least bit objectionable if there had been some antecedent reference to those concerns" but the record lacked "any reasons for the enactment . . . at the time it was enacted." In essence, the trial judge rejected the testimony of the municipality's witnesses and expert as not credible because there was nothing in the record prior to trial corroborating the fact that there was an alleged parking problem in the municipality and concluded that such reasoning was invented for this litigation. These are determinations based on the evidence presented and are deserving of our deference. 10 A-1670-16T3 It is also enlightening that the municipality previously tried to limit college renters by requiring rentals in certain areas to be occupied by "traditional family units" or a functional equivalent. The Supreme Court ruled that college students satisfying stability and permanency requirements satisfied the "single housekeeping unit" standard. Glassboro v. Vallorosi, 117 N.J. 421, 431-32 (1990). In that ordinance, the municipality included a statement of purpose which explained its desire to control "groups of individuals whose living arrangements, although temporarily in the same dwelling unit, are transient in nature and do not possess the elements of stability and permanency which have long been associated with single family occupancy" and that "[Rowan University] maintains substantial dormitory and apartment facilities for students . . . [meaning] ample housing exists within the Borough for college students . . . ." Id. at 423-24.6 Thus, where the municipality may have said too much last time, it certainly said too little this time. In any event, we defer to the 6 In dicta, the Court observed that "[t]raffic congestion can appropriately be remedied by reasonable, evenhanded limitations upon the number of cars which may be maintained at a given residence." Vallorosi, 117 N.J. at 433 (quoting State v. Baker, 81 N.J. 99, 111 (1979)). As the trial judge recognized, if some credible evidence was presented to explain that the municipality enacted the ordinance for the purpose of combatting traffic congestion, or parking issues, it would be upheld so long as it was implemented in an evenhanded manner. 11 A-1670-16T3 trial judge's determination that there is insufficient persuasive evidence in the record to support the ordinance's enactment. Affirmed. 12 A-1670-16T3
Date: April 18, 2018
Docket Number: a1670-16 PER CURIAM In these appeals, we consider whether the trial judge erred in finding a 2004 ordinance, which required all rental properties within the municipality to "provide a minimum of one off-street parking space for every one authorized occupant 18 years of age or more," to be arbitrary and capricious. Because we agree the record fails to disclose a rational reason for the ordinance, we affirm. Glassboro Guardians, a non-profit corporation comprised of individuals who own rental properties within the municipality, challenged Ordinance No. 379-5(I), adopted on July 27, 2004, which declares in subsection (1): Every rental facility shall provide a minimum of one off-street parking space for every one authorized occupant 18 years of age or more, as approved by the Housing Officer pursuant to the following requirements. For owner- occupied rental facilities, such requirements shall be in addition to those spaces required for residential use other than the rental facility portion of the premises. Said parking spaces shall be a minimum of 10 feet by 20 2 A-1670-16T3 feet. Parking areas must be maintained and configured so as not to create a safety hazard to the tenants using the areas or to any drivers or pedestrians on the public right- of-way, and in such a manner that does not cause inconvenience to the occupants. We previously vacated a summary judgment entered in Guardians' favor and remanded for further consideration as to whether there was a rational basis for the ordinance's adoption. Glassboro Guardians v. Borough of Glassboro, No. A-4001-12 (App. Div. Nov. 5, 2014). On remand, Guardians claimed the ordinance: (1) was arbitrary, capricious, and unreasonable; (2) was improperly enacted under the municipality's police power; (3) violated the equal protection clause of the New Jersey Constitution as well as the New Jersey Civil Rights Act, N.J.S.A. 10:6-2; and (4) was void due to the alleged involvement of a councilman with a conflict of interest. The trial judge ruled, based on factual findings made at the conclusion of a three-day trial, that, among other things, "[t]here has been adduced no reason which was articulated contemporaneous with the governmental action" and, consequently, the ordinance was arbitrary, capricious, and unreasonable. In appealing, the municipality argues:1 I. THE TRIAL COURT ERRED IN DECLARING THE ORDINANCE VOID AND UNENFORCEABLE ON THE BASIS 1 We have renumbered the municipality's arguments. 3 A-1670-16T3 THAT IT WAS ARBITRARY, CAPRICIOUS, AND UNREASONABLE. II. [GUARDIANS] DID NOT MEET ITS HEAVY BURDEN OF DEMONSTRATING THE ABSENCE OF ANY RATIONAL BASIS FOR THE ORDINANCE. III. [THE MUNICIPALITY] ESTABLISHED THE CONTEMPORANEOUS RATIONAL BASIS FOR THE ORDINANCE THROUGH THE TESTIMONY OF ITS COUNCIL MEMBERS AND HOUSING INSPECTION OFFICIALS. IV. THE TRIAL COURT ERRED IN CONCLUDING THAT THE ORDINANCE IS INHERENTLY UNREASONABLE BECAUSE IT REQUIRES A PARKING SPACE FOR EVERY TENANT AND DOES NOT PROVIDE A MEANINGFUL METHOD TO OBTAIN RELIEF FROM THE REQUIREMENT. In a separate appeal, Guardians questions the trial judge's failure to find the ordinance invalid on the other challenged grounds. Guardians contends: I. THE [TRIAL COURT] ERRED IN CONCLUDING THAT IT WAS APPROPRIATE FOR THESE PARKING REGULATIONS FOR PRIVATE PROPERTY IN THE RENTAL HOUSING ORDINANCE TO BE PLACED IN A GENERAL POLICE POWER ORDINANCE AND NOT IN A ZONING ORDINANCE. II. THE [TRIAL COURT] ERRED IN CONCLUDING THAT THE RENTAL PARKING ORDINANCE DID NOT VIOLATE THE NEW JERSEY EQUAL PROTECTION CLAUSE AND THE NEW JERSEY CIVIL RIGHTS ACT. III. THE [TRIAL COURT] ERRED IN CONCLUDING THAT THE RENTAL HOUSING ORDINANCE SHOULD NOT BE INVALIDATED BECAUSE OF THE ACTIONS OF COUNCILMAN D'ALESSANDRO. 4 A-1670-16T3 Because we affirm the trial judge's determination that the ordinance is arbitrary, capricious, and unreasonable, we need not reach the alternative grounds suggested by Guardians. Our standard of review counsels that we not interfere with a trial judge's fact findings when supported by adequate, substantial and credible evidence, unless the findings would work an injustice. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974). We grant such deference to judge- made findings because the trial judge has the opportunity to hear and see all the witnesses and to review all evidence in the first instance, thus allowing for a better "feel" of the case than we can gain from a static record. Twp. of W. Windsor v. Nierenberg, 150 N.J. 111, 132-33 (1997). For this reason, credibility determinations are entitled to particular deference. Ibid. We also start with the premise that municipal ordinances are presumed valid; consequently, a challenger has a heavy burden in seeking to overturn them. Quick Chek Food Stores v. Twp. of Springfield, 83 N.J. 438, 447 (1980); see also Berk Cohen Assocs. at Rustic Village, LLC v. Borough of Clayton, 199 N.J. 432, 445- 47 (2009). To overturn an ordinance, a challenger must clearly show the ordinance is arbitrary, capricious or unreasonable, Bryant v. City of Atlantic City, 309 N.J. Super. 596, 610 (App. Div. 1998), because "the underlying policy and wisdom" of an 5 A-1670-16T3 ordinance is assumed to reside with the governing body, not the courts, which are strangers to the controversy, Quick Chek, 83 N.J. at 447. For these reasons, an ordinance will not be set aside if any set of reasonable facts justifies the ordinance. Ibid. In considering a challenge, a court must examine "the relationship between the means and ends of the ordinance." Pheasant Bridge Corp. v. Twp. of Warren, 169 N.J. 282, 290 (2001). Although a court will not inquire into a municipality's motives when the ordinance is valid on its face, a court will weigh evidence about the legislative purpose "when the reasonableness of the enactment is not apparent on its face." Riggs v. Long Beach Township, 109 N.J. 601, 613 (1988). Reviewing the ordinance facially, the trial judge observed the lack of any "introductory language" or "statement of reasons" justifying or even just explaining why it was enacted. Because of the lack of such an explanation, the trial judge examined its legislative history but found that work session and council meeting minutes also offered "no statement of reasons, elucidation of issues raised or problems sought to be solved . . . virtually no discussion of substance of the parking ordinance, no public comment by council members and no comment from the public." The record does show the discussion of the ordinance in one instance: a May 6 A-1670-16T3 6, 2004 council meeting where a councilperson drew a distinction between how the ordinance would affect "college rental" and "family rental" parking, stating that a college rental needs one space per tenant while a family rental could obtain a "parking decal" to park on the street.2 As additional evidence that the ordinance was enacted without a reasonable basis, Guardians presented the testimony of two representatives – rental property owners in Glassboro – and an expert. The trial judge accepted as credible the representatives' testimony which suggested the ordinance was enacted to control college student renters. The trial also judge found credible testimony that in various conversations the witnesses had with municipal officials no parking problem was ever mentioned as a reason for the ordinance's enactment. The judge relied on testimony regarding conversations the witnesses had with council members and administrators where a parking problem was never identified or discussed as a reason for the ordinance's enactment. In addition, the trial judge found credible references to: the municipality's claimed intent to control "animal houses"; a "stack of police reports" relating to college renters; residents' complaints about 2 Even though there was a dispute about the identity of the speaker of these comments, no one disputes the comments were made by a member of the municipal council. 7 A-1670-16T3 college renters; and the "inadequate 'strictness' of the state rental code" as reasons for the enactment of the parking ordinance as the means for gaining control of college student renters. The judge found this testimony credible because it was corroborated, "albeit reluctantly," by the municipality's witnesses. The municipality relied on the testimony of an expert and numerous town officials. The expert testified there was a "parking problem" in the municipality based upon his personal observations. And the expert extrapolated the reasons for the ordinance, citing an increased enrollment at Rowan University, an increased number of vehicles in town, and alleged safety concerns and tenant convenience.3 The judge rejected this testimony because it was uncorroborated by any reference in the record. The judge also found testimony by council members serving when the ordinance was enacted to be unhelpful to the municipality's position because those council members claimed "no recollection of why [the ordinance] was passed or what problem they were trying to solve [and] . . . recalled no public outcry or even a whimper that prompted their action."4 The trial judge noted there was only a 3 The expert testified that the population has fluctuated around 19,000 residents over since 2000. 4 One council member testified the ordinance was to ensure the "environment was not overflowing with cars and that cars would not 8 A-1670-16T3 "general denial" that the ordinance was enacted to "constrict college rentals." The municipality also argued the reasons for enacting the current ordinance are set out in its preceding 1972 ordinance,5 but that ordinance only states that it was enacted "after much study" without explanation as to what that study involved or what it revealed. Finding an absence of a purpose for the ordinance – and, if there was a purpose, it was more than likely to combat concerns about college renters – the judge concluded the ordinance was arbitrary, capricious and unreasonable. We agree, concluding that the jduge's findings were supported by credible, adequate, and substantial evidence in the record. The municipality additionally challenges the fact that the trial judge applied a standard that required a contemporaneous reason be given for municipal action. This argument misapprehends the trial judge's holding. The judge, in concluding the ordinance's adoption was arbitrary, capricious, and unreasonable, found the record lacked any reason or purpose "articulated contemporaneous be parking on the streets" but does not recall any member of the public coming to council meetings to complain about parking issues in the town. 5 Similar to the current ordinance, the 1972 ordinance required every residential unit have one parking spaces for every three occupants seventeen years or older. 9 A-1670-16T3 with the governmental action." But the judge did not create a standard imposing such a requirement; rather, the judge found the lack of any contemporaneous reasoning as evidence that discredited the municipality's witnesses assertion that there was a reason and as giving rise to an inference that the ordinance lacked a rational basis and was merely a means to unlawfully limit college renters in the municipality. As the judge determined, the "explanations" offered by the municipality were "not grounded in any facts of record and in fact, are at odds with the inability of any witness to recall or relate the actual basis for the government action." The trial judge also explained that the legal arguments and expert testimony presented by the municipality would not be "the least bit objectionable if there had been some antecedent reference to those concerns" but the record lacked "any reasons for the enactment . . . at the time it was enacted." In essence, the trial judge rejected the testimony of the municipality's witnesses and expert as not credible because there was nothing in the record prior to trial corroborating the fact that there was an alleged parking problem in the municipality and concluded that such reasoning was invented for this litigation. These are determinations based on the evidence presented and are deserving of our deference. 10 A-1670-16T3 It is also enlightening that the municipality previously tried to limit college renters by requiring rentals in certain areas to be occupied by "traditional family units" or a functional equivalent. The Supreme Court ruled that college students satisfying stability and permanency requirements satisfied the "single housekeeping unit" standard. Glassboro v. Vallorosi, 117 N.J. 421, 431-32 (1990). In that ordinance, the municipality included a statement of purpose which explained its desire to control "groups of individuals whose living arrangements, although temporarily in the same dwelling unit, are transient in nature and do not possess the elements of stability and permanency which have long been associated with single family occupancy" and that "[Rowan University] maintains substantial dormitory and apartment facilities for students . . . [meaning] ample housing exists within the Borough for college students . . . ." Id. at 423-24.6 Thus, where the municipality may have said too much last time, it certainly said too little this time. In any event, we defer to the 6 In dicta, the Court observed that "[t]raffic congestion can appropriately be remedied by reasonable, evenhanded limitations upon the number of cars which may be maintained at a given residence." Vallorosi, 117 N.J. at 433 (quoting State v. Baker, 81 N.J. 99, 111 (1979)). As the trial judge recognized, if some credible evidence was presented to explain that the municipality enacted the ordinance for the purpose of combatting traffic congestion, or parking issues, it would be upheld so long as it was implemented in an evenhanded manner. 11 A-1670-16T3 trial judge's determination that there is insufficient persuasive evidence in the record to support the ordinance's enactment. Affirmed. 12 A-1670-16T3
DIVIAION OF CHILD PROTECTION AND PERMANENCY v. S.T.
Date: April 18, 2018
Docket Number: a1961-15 PER CURIAM These two matters, which have been consolidated for the purpose of a single opinion, involve appeals by S.T. (Susan)1 of Family Part orders finding that she abused or neglected her then two-year daughter C.T. (Claudia); and that her parental rights to Claudia, then five-years-old, is terminated.2 Our review of the trial judges' decisions are limited. We defer to the expertise of Family Part judges, Cesare v. Cesare, 154 N.J. 394, 413 (1998), and we are bound to their factual findings when supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. 1 We use acronyms and pseudonyms to protect the identities of the parties involved. 2 The order also terminated the parental rights of the father D.M., which is not the subject of this appeal. 2 A-1961-15T3 v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). In A-1961-15, we consider the judge's oral decision that Susan's drug addiction placed Claudia in an extreme risk of harm, which constituted abuse or neglect in accordance with N.J.S.A. 9:6-8.21(c)(4). The judge noted that she did not attend the second day of the two-day trial because she "advised that she would not need a ride to court as, due to the fact that she didn't want to waste her day in court and planned, instead, to go to the mall with her friend or to go to Shop-Rite." Susan did not testify nor refute the Division's testimony. The judge pointed to the Division's credible testimony detailing Susan's extensive history of substance abuse; causing her to spend almost fifty dollars a day on heroin as opposed to purchasing food, clothing, doctors' visits, etc. for Claudia. The judge reasoned: [Susan] admitted to the Division workers on multiple occasions that she's a heroin addict . . . . A drug addict presents a danger to their child. A drug addict who uses on average five bags of heroin a day while in a primary caretaker role for their child is a danger to that child. He concluded that Susan "continued to put her desire to go out, use drugs, and have a social life generally over the needs of the 3 A-1961-15T3 child[] . . . [along with] her heroin addiction put[ting] the two- year-old [Claudia] at substantial risk of harm." On appeal, Susan contends the judge's finding of abuse and neglect is not supported by sufficient evidence that Claudia was in substantial risk of harm within the meaning of Title 9. She argues "there was no demonstration of a connection between [her] use of heroin and any substantial risk of harm to [Claudia]. At most, [she] . . . was merely an observer . . . [and] not directly affected by [her] conduct." She further contends the judge violated principles of fundamental fairness when it failed to convert the case to a termination of parental rights under Title 30. We find insufficient merit in this argument to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We agree with Division and the Law Guardian that the judge's finding of abuse or neglect was based on credible substantial evidence and, for that reason, we must defer to those findings. In A-2713-16, Susan's drug addiction was also the centerpiece of the action. This time a different judge, applying the four- prong best interests of the child test, N.J.S.A. 30:4C-15.1(a)(1)- (4), issued a thirty-eight page written decision3 finding that the 3 Also including the termination of D.M.'s parental rights. 4 A-1961-15T3 Division proved by clear and convincing evidence that Susan's parental rights to Sarah should be terminated. In regards to prong one, continued endangerment of the child's safety and health, N.J.S.A. 30:4C-15.1(a)(1), the judge stated "the Division has unquestionably demonstrated that [Susan] placed [her daughter] at substantial risk of harm" as evinced by the Division's extensive involvement with Susan's addiction and her multiple relapses. For prong two, inability to eliminate the harm facing the child or provide a safe and stable home, N.J.S.A. 30:4C-15.1(a)(2), the judge credited the testimony of the Division's expert Dr. Frank Dyer over the testimony of Susan's two experts. Though she noted that "none of the three experts recommended reunification at this time and each acknowledged that [Susan] would need continued substance abuse treatment and significant mental health treatment." Summarizing Dr. Dyer's testimony, the judge remarked: Dr. Dyer concluded that while [Susan] is high average in intellectual functioning, her psychological profile is "extremely negative with respect to parenting capacity." He explained that [Susan] has an "extremely severe drug problem that so far proved refractory to multiple attempts at rehabilitation" and that her use of PCP is "particularly worrisome, as this substance has been known to precipitate psychotic episodes in its users." Dr. Dyer noted that [Susan] has little capacity to resist the urge to use drugs; has "extremely poor interpersonal 5 A-1961-15T3 relations[;]"[] is "prone to respond to minor frustrations and difficulties with irritation and anger[;]"[] and has a "low threshold for physical aggression.["] Dr. Dyer noted that "[t]he severity and chronicity of [Susan's] drug problem and emotional problems present enormous obstacles to treating her [and] [t]his would be true even if [Susan] had been cooperative with attempts to provide services for her; however, her history is one of poor compliance." He continued that "she remains much too disorganized, immature, emotionally unstable, socially alienated, and vulnerable to drug relapse to be entrusted with the care of any child." Moreover, "[h]er prognosis for acquiring adequate parenting capacity within the foreseeable future is extremely poor, given her history and the severity of her problems." Dr. Dyer found that [Susan] was not fit to care for Claudia and Claudia "would be [at] extremely high risk of medical neglect, as well as [at] risk of ordinary neglect, in light of [Susan's] emotional instability and unreliability." The judge thus reasoned that Susan was unable to adequately address the risk of harm she created that resulted in Claudia's removal, and is unlikely to do so in the near future. Addressing prong three, whether the Division made reasonable efforts to help Susan correct the problems that lead to her daughter's harm and if it considered alternatives to termination, N.J.S.A. 30:4C-15.1(a)(3), the judge determined that the evidence demonstrated the Division offered multiple services to assist Susan; it attempted to prevent the initial removal of Claudia with a protection plan; it advocated on Susan's behalf for several 6 A-1961-15T3 treatment programs; and it investigated and ruled out all possible alternative placements. And as to prong four, will termination of parental rights do more harm than good, N.J.S.A. 30:4C-15.1(a)(4), the judge agreed with Dyer's testimony that, "although Claudia did have a 'degree' of attachment to her mother, she considers her resource parents as her 'primary source of security, nurturance, and structure rather than her mother.'" She also accepted his opinion "that while the resource parents could mitigate any harm that resulted from termination of parental rights, Susan lacked the capacity to mitigate the loss Claudia would experience if contact with the resource parents was severed." In challenging the judge's decision, defendant contends the finding that the Division satisfied its burden under the best interests test was not supported by credible evidence. Specifically, she argues there was no proof that her past drug use harmed Claudia, or that she would harm Claudia in the future given that she established at the time of trial she was being treated. She also contends the Division did not prove that it offered her the appropriate services to remediate both her substance abuse and mental health issues. Susan further contends termination of her parental rights would damage her loving relationship with her daughter. Similar to our conclusion regarding abuse or neglect, 7 A-1961-15T3 we find insufficient merit in Susan's arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Credible substantial evidence supported the termination of Susan's parental rights to Claudia and, for that reason, we must defer to the judge's findings. Affirmed. 8 A-1961-15T3
Date: April 18, 2018
Docket Number: a1961-15 PER CURIAM These two matters, which have been consolidated for the purpose of a single opinion, involve appeals by S.T. (Susan)1 of Family Part orders finding that she abused or neglected her then two-year daughter C.T. (Claudia); and that her parental rights to Claudia, then five-years-old, is terminated.2 Our review of the trial judges' decisions are limited. We defer to the expertise of Family Part judges, Cesare v. Cesare, 154 N.J. 394, 413 (1998), and we are bound to their factual findings when supported by sufficient credible evidence. N.J. Div. of Youth & Family Servs. 1 We use acronyms and pseudonyms to protect the identities of the parties involved. 2 The order also terminated the parental rights of the father D.M., which is not the subject of this appeal. 2 A-1961-15T3 v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship of J.T., 269 N.J. Super. 172, 188 (App. Div. 1993)). In A-1961-15, we consider the judge's oral decision that Susan's drug addiction placed Claudia in an extreme risk of harm, which constituted abuse or neglect in accordance with N.J.S.A. 9:6-8.21(c)(4). The judge noted that she did not attend the second day of the two-day trial because she "advised that she would not need a ride to court as, due to the fact that she didn't want to waste her day in court and planned, instead, to go to the mall with her friend or to go to Shop-Rite." Susan did not testify nor refute the Division's testimony. The judge pointed to the Division's credible testimony detailing Susan's extensive history of substance abuse; causing her to spend almost fifty dollars a day on heroin as opposed to purchasing food, clothing, doctors' visits, etc. for Claudia. The judge reasoned: [Susan] admitted to the Division workers on multiple occasions that she's a heroin addict . . . . A drug addict presents a danger to their child. A drug addict who uses on average five bags of heroin a day while in a primary caretaker role for their child is a danger to that child. He concluded that Susan "continued to put her desire to go out, use drugs, and have a social life generally over the needs of the 3 A-1961-15T3 child[] . . . [along with] her heroin addiction put[ting] the two- year-old [Claudia] at substantial risk of harm." On appeal, Susan contends the judge's finding of abuse and neglect is not supported by sufficient evidence that Claudia was in substantial risk of harm within the meaning of Title 9. She argues "there was no demonstration of a connection between [her] use of heroin and any substantial risk of harm to [Claudia]. At most, [she] . . . was merely an observer . . . [and] not directly affected by [her] conduct." She further contends the judge violated principles of fundamental fairness when it failed to convert the case to a termination of parental rights under Title 30. We find insufficient merit in this argument to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We agree with Division and the Law Guardian that the judge's finding of abuse or neglect was based on credible substantial evidence and, for that reason, we must defer to those findings. In A-2713-16, Susan's drug addiction was also the centerpiece of the action. This time a different judge, applying the four- prong best interests of the child test, N.J.S.A. 30:4C-15.1(a)(1)- (4), issued a thirty-eight page written decision3 finding that the 3 Also including the termination of D.M.'s parental rights. 4 A-1961-15T3 Division proved by clear and convincing evidence that Susan's parental rights to Sarah should be terminated. In regards to prong one, continued endangerment of the child's safety and health, N.J.S.A. 30:4C-15.1(a)(1), the judge stated "the Division has unquestionably demonstrated that [Susan] placed [her daughter] at substantial risk of harm" as evinced by the Division's extensive involvement with Susan's addiction and her multiple relapses. For prong two, inability to eliminate the harm facing the child or provide a safe and stable home, N.J.S.A. 30:4C-15.1(a)(2), the judge credited the testimony of the Division's expert Dr. Frank Dyer over the testimony of Susan's two experts. Though she noted that "none of the three experts recommended reunification at this time and each acknowledged that [Susan] would need continued substance abuse treatment and significant mental health treatment." Summarizing Dr. Dyer's testimony, the judge remarked: Dr. Dyer concluded that while [Susan] is high average in intellectual functioning, her psychological profile is "extremely negative with respect to parenting capacity." He explained that [Susan] has an "extremely severe drug problem that so far proved refractory to multiple attempts at rehabilitation" and that her use of PCP is "particularly worrisome, as this substance has been known to precipitate psychotic episodes in its users." Dr. Dyer noted that [Susan] has little capacity to resist the urge to use drugs; has "extremely poor interpersonal 5 A-1961-15T3 relations[;]"[] is "prone to respond to minor frustrations and difficulties with irritation and anger[;]"[] and has a "low threshold for physical aggression.["] Dr. Dyer noted that "[t]he severity and chronicity of [Susan's] drug problem and emotional problems present enormous obstacles to treating her [and] [t]his would be true even if [Susan] had been cooperative with attempts to provide services for her; however, her history is one of poor compliance." He continued that "she remains much too disorganized, immature, emotionally unstable, socially alienated, and vulnerable to drug relapse to be entrusted with the care of any child." Moreover, "[h]er prognosis for acquiring adequate parenting capacity within the foreseeable future is extremely poor, given her history and the severity of her problems." Dr. Dyer found that [Susan] was not fit to care for Claudia and Claudia "would be [at] extremely high risk of medical neglect, as well as [at] risk of ordinary neglect, in light of [Susan's] emotional instability and unreliability." The judge thus reasoned that Susan was unable to adequately address the risk of harm she created that resulted in Claudia's removal, and is unlikely to do so in the near future. Addressing prong three, whether the Division made reasonable efforts to help Susan correct the problems that lead to her daughter's harm and if it considered alternatives to termination, N.J.S.A. 30:4C-15.1(a)(3), the judge determined that the evidence demonstrated the Division offered multiple services to assist Susan; it attempted to prevent the initial removal of Claudia with a protection plan; it advocated on Susan's behalf for several 6 A-1961-15T3 treatment programs; and it investigated and ruled out all possible alternative placements. And as to prong four, will termination of parental rights do more harm than good, N.J.S.A. 30:4C-15.1(a)(4), the judge agreed with Dyer's testimony that, "although Claudia did have a 'degree' of attachment to her mother, she considers her resource parents as her 'primary source of security, nurturance, and structure rather than her mother.'" She also accepted his opinion "that while the resource parents could mitigate any harm that resulted from termination of parental rights, Susan lacked the capacity to mitigate the loss Claudia would experience if contact with the resource parents was severed." In challenging the judge's decision, defendant contends the finding that the Division satisfied its burden under the best interests test was not supported by credible evidence. Specifically, she argues there was no proof that her past drug use harmed Claudia, or that she would harm Claudia in the future given that she established at the time of trial she was being treated. She also contends the Division did not prove that it offered her the appropriate services to remediate both her substance abuse and mental health issues. Susan further contends termination of her parental rights would damage her loving relationship with her daughter. Similar to our conclusion regarding abuse or neglect, 7 A-1961-15T3 we find insufficient merit in Susan's arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Credible substantial evidence supported the termination of Susan's parental rights to Claudia and, for that reason, we must defer to the judge's findings. Affirmed. 8 A-1961-15T3
DIVISION OF CHILD PROTECTION AND PERMANENCY v. S.J.A.
Date: April 18, 2018
Docket Number: a3348-16 PER CURIAM Defendants S.J.A. and P.B.G. are the parents of seven children who were born in 2005, 2006, 2008, 2011, 2012, 2013 and 2016. Judge Timothy W. Chell presided over a two-day guardianship trial, after which he found that the evidence warranted termination of both defendants' parental rights to all but the oldest child. Both defendants appeal, arguing the judge erred in finding clear and convincing evidence on any of the four prongs of the applicable statutory test, N.J.S.A. 30:4C-15.1; defendant P.B.G. also argues 2 A-3348-16T2 he "should not be penalized for the actions of S.J.A."1 We find insufficient merit in these arguments, R. 2:11-3(e)(1)(E), and affirm substantially for the reasons set forth by Judge Chell in his thorough and well-reasoned written decision. Affirmed. 1 All the children but two – the two youngest, L.J.A. and J.A. – support defendants' arguments. 3 A-3348-16T2
Date: April 18, 2018
Docket Number: a3348-16 PER CURIAM Defendants S.J.A. and P.B.G. are the parents of seven children who were born in 2005, 2006, 2008, 2011, 2012, 2013 and 2016. Judge Timothy W. Chell presided over a two-day guardianship trial, after which he found that the evidence warranted termination of both defendants' parental rights to all but the oldest child. Both defendants appeal, arguing the judge erred in finding clear and convincing evidence on any of the four prongs of the applicable statutory test, N.J.S.A. 30:4C-15.1; defendant P.B.G. also argues 2 A-3348-16T2 he "should not be penalized for the actions of S.J.A."1 We find insufficient merit in these arguments, R. 2:11-3(e)(1)(E), and affirm substantially for the reasons set forth by Judge Chell in his thorough and well-reasoned written decision. Affirmed. 1 All the children but two – the two youngest, L.J.A. and J.A. – support defendants' arguments. 3 A-3348-16T2
ROBERT U. DEL VECCHIO TRUSTEE OF THE ROBERT U DEL VECCHIO PENSION TRUST v. HELEN V. SMITH
Date: April 17, 2018
Docket Number: a1729-16
Date: April 17, 2018
Docket Number: a1729-16
JACINTO KOGER-HIGHTOWER v. NEW JERSEY STATE PAROLE BOARD
Date: April 17, 2018
Docket Number: a4659-15
Date: April 17, 2018
Docket Number: a4659-15
RICK LARUE v. MONMOUTH COUNTY AGRICULTURE DEVELOPMENT BOARD
Date: April 16, 2018
Docket Number: a2608-16
Date: April 16, 2018
Docket Number: a2608-16
G.A. BARRETT, LLC v. STATE OF NEW JERSEY DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT
Date: April 16, 2018
Docket Number: a2893-16
Date: April 16, 2018
Docket Number: a2893-16
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