NJ Appellate Court Decisions

February 2, 2012

STATE OF NEW JERSEY v. JOSEPH MAROLDA, SR

PER CURIAM Defendant Joseph Marolda, Sr. appeals from the denial of his petition for post-conviction relief (PCR) grounded on ineffective assistance of trial counsel. We affirm. The facts of this matter are set forth in State v. Marolda, 394 N.J. Super. 430 (App. Div.), certif. denied, 192 N.J. 482 (2007), and need not be repeated here in detail. The following facts are pertinent to this appeal.

MARGARET DUCEY v. STEPHEN DUCEY

J.A.D. In this complex matrimonial matter, the parties' cross-appeals challenge various provisions contained in an amended final judgment of divorce (JOD) that ordered the payment of support and the equitable distribution of assets. Without addressing the parties' arguments on the merits of these issues, we are constrained to reverse, as we reject the procedure employed by the trial judge, who, after presiding over a fourteen-day trial, entered a final JOD advising the court's "underlying opinion will be sent shortly." Several months later, when the trial judge released the reasoning for her prior decision, the substantive provisions diverged significantly from those in the JOD and counsel was ordered to prepare an amended JOD. Although the trial judge included factual findings for many of the conclusions set forth in the amended JOD, no explanation was given for the wholesale alteration of the initially ordered provisions in the JOD. We reject any suggestion that the trial judge's actions in this regard fall within her reasoned discretion, as discussed in Lombardi v. Masso, 207 N.J. 517 (2011). Accordingly we reverse and remand for a new trial before a different Family Part judge. The parties were married on June 19, 1993, and have four minor children. Plaintiff Margaret Ducey, formerly a teacher, was a full-time homemaker. Defendant Stephen Ducey worked as an orthopedic surgeon, and owned a forty-nine percent interest in a medical practice. The parties separated in May 2006.

STATE OF NEW JERSEY v. DEMOTT W. HARRELL

PER CURIAM Defendant DeMott Harrell appeals from the Law Division's October 14, 2010 denial of his third petition for post-conviction relief (PCR) alleging ineffective assistance of trial counsel, appellate counsel, and PCR counsel. We affirm.

BELAL BHUIYAN v. SHAHAB UDDIN

PER CURIAM In this breach of contract case, defendant Shahab Uddin appeals from a January 25, 2011 order denying his motion to vacate default judgment. We reverse, remand, and direct the judge to make additional findings of fact and conclusions of law after conducting a plenary hearing.

JESUS CINTRON v. NEW JERSEY DEPARTMENT OF CORRECTIONS

PER CURIAM Jesus Cintron appeals from a final agency decision of the Department of Corrections (DOC) that he committed prohibited acts *.011, possession of security threat group (STG) material, and *.202, possession of a weapon, N.J.A.C. 10A:4-4.1. We affirm. On December 30, 2010, a search of Cintron's cell resulted in the confiscation of seventeen pages of material that contained references to the Latin Kings and a sharpened metal instrument. Cintron admitted the sharpened pen was his. As a result of the prohibited act charging the weapon possession, Cintron was confined in prehearing detention pursuant to N.J.A.C. 10A:4-10.1(c).

STATE OF NEW JERSEY v. ELIJAH HAMM

PER CURIAM Defendant Elijah Hamm appeals from the denial of his third petition for post-conviction relief (PCR). We affirm.

STATE OF NEW JERSEY v. JOSEPH J. BROWN

PER CURIAM After a jury trial, defendant Joseph J. Brown was found guilty of third-degree burglary, N.J.S.A. 2C:18-2, and third-degree theft of movable property, N.J.S.A. 2C:20-3a. He was sentenced on June 28, 2002, to an aggregate term of five years in prison with two years of parole ineligibility. His convictions were upheld on appeal. State v. Brown, No. A-6534-01 (App. Div. February 9, 2004), certif. denied, 180 N.J. 457 (2004).

MICHAEL A. FAZIO v. TEMPORARY EXCELLENCE INC.

PER CURIAM Plaintiff Michael Fazio appeals and defendants Temporary Excellence, Inc., Temporary Excellence of NY, Inc. (collectively TEI), and James and Lupita Cunningham (James, Lupita, or the Cunninghams), cross-appeal from those parts of two final judgments, dated April 17, 2009, that are unfavorable to them. Plaintiff also appeals from the June 12, 2009 order, which denied his motion for a new trial and judgment notwithstanding the verdict. We affirm. This case has a long and tortured procedural history marked by extensive and contentious pre-trial discovery and motion practice. We shall only refer to facts in the record and procedural matters that are pertinent to this appeal.

February 1, 2012

STATE OF NEW JERSEY v. MIGUEL GONZALEZ

PER CURIAM Defendant appeals from the denial of his second petition for post-conviction relief (PCR). We affirm. Defendant was convicted of first-degree murder, fourth-degree unlawful possession of a weapon, second-degree burglary and third-degree theft. He was sentenced on April 18, 1989 to an aggregate sentence of thirty years without any eligibility of parole. Defendant appealed and argued that comments by the prosecutor during summation deprived him of a fair trial; that trial counsel was ineffective and that the trial court abused its discretion by admitting "gruesome photographs" into evidence. His convictions and sentence were affirmed on direct appeal, State v. Bilbrault, No. A-1064-89T4 (App. Div. June 16, 1992), and his petition for certification was denied, State v. Gonzalez, 130 N.J. 595 (1992).

RANDALL ZANDSTRA v. NEW JERSEY DEPARTMENT OF CORRECTIONS

PER CURIAM Randall Zandstra appeals from a final disciplinary decision of the Department of Corrections (DOC). We affirm. In 2010, when Zandstra was an inmate at South Woods State Prison, a search of his locked wall locker resulted in the seizure of "nine pieces of paper with spreads and points for NFL games with over and under point totals[,]" and "amounts of commissary items to equal money amounts and one letter containing inmate AKAs and what they owe to the 'store' with dollar amount and commissary items[.]" Zandstra admitted ownership of the items seized by signing an inmate receipt. On October 23, 2010, Zandstra was charged with prohibited act .603, possession of gambling paraphernalia, N.J.A.C. 10A:4-4.1(a)1 and placed in pre-hearing detention.

RONALD VILLONE, JR v. KATHERINE VILLONE

PER CURIAM Plaintiff appeals from an order that denied his application for modification of alimony and child support paid to his former spouse. We reverse. The parties were married on January 8, 1994 and had two children. They were divorced in 2004 and entered into a marital settlement agreement (MSA) that was incorporated into a supplemental judgment of divorce dated April 23, 2004.

YOLANDA HERNANDEZ v. MW MANUFACTURERS, INC

PER CURIAM Complainant, Yolanda Hernandez, appeals from a November 13, 2009 order of the Division on Civil Rights (Division) finding there was no probable cause to credit the allegations of discrimination asserted by her and closing its file. Complainant contended her employer, MW Manufacturers, Inc. (MW), discriminated against her by refusing to accommodate her disability resulting from an injury to her wrist that occurred at work by not offering her a "light duty" clerical position. We affirm.

STATE OF NEW JERSEY v. NICKOLAS AGATHIS

FUENTES, J.A.D. Defendant Nickolas1 Agathis appeals from the denial of his petition for post conviction relief (PCR). We reverse and remand for an evidentiary hearing. Defendant pled guilty to the domestic violence offense of simple assault and was placed on probation conditioned upon forfeiting his firearms identification card. Relying on our Supreme Court's decision in State v. Nunez-Valdez, 200 N.J. 129 (2009), defendant argues he received ineffective assistance of counsel when his attorney incorrectly informed him that he could regain his firearms identification card after completing the term of probation. Stated differently, defendant claims he would not have agreed to plead guilty if he had known that by doing so, he would permanently forfeit his right to own and possess a firearm.

QIONG JIN v. LUPING SUN

PER CURIAM Plaintiff Qiong Jin appeals from a December 15, 2010 trial court order dismissing her complaint, which sought the return of $1390 in residential security deposit and $568 in rent from her former landlords, defendants Luping Sun and Erdong Hu. Plaintiff sought double the security deposit due her plus interest pursuant to N.J.S.A. 46:9-21.1. After reviewing the record, we conclude that the trial judge found facts not supported by the evidence. We therefore reverse and remand for a new trial.

DIVISION OF YOUTH AND FAMILY SERVICES IN THE MATTER OF D.Y.M a Minor

PER CURIAM After a fact-finding hearing, the Family Part determined that defendant, the mother of a seventeen-year-old daughter,1 committed abuse and neglect in violation of N.J.S.A. 9:6-8.21. The court's determination arose out of events that led to the daughter's temporary emergency removal from the mother's home by the Division of Youth and Family Services ("DYFS" or "the Division"), at the mother's behest, in June 2010. The daughter was returned to the mother's care and custody four days later.

MONICA A. THORS v. AARON JAMES LAMBERT

PER CURIAM Plaintiff Monica A. Thors appeals from the February 14, 2011 order dismissing her pro se complaint with prejudice. The trial judge entered the order after denying plaintiffâs motion to amend her complaint. After reviewing the record in light of the contentions advanced on appeal, we conclude that the dismissal with prejudice represents an abuse of discretion and reverse.

DONALD DEGROOT v. LINDEN BOARD OF EDUCATION

PER CURIAM Plaintiff Donald DeGroot (DeGroot) appeals from an order granting summary judgment in favor of defendant Linden Board of Education (Linden BOE), dismissing claims for payment for unused vacation days, and an order denying plaintiff's cross-motion for summary judgment. Because there exists a disputed issue of material fact, we reverse.

CHRISTOPHER WENGER v. CARDO WINDOWS, INC.

PER CURIAM In this class action case, plaintiffs seek injunctive relief and statutory civil penalties against defendants in connection with the sale of residential windows. This is the second time we have been asked to review the trial court's decision concerning the certification of this class action. In the first appeal, we affirmed in part and reversed in part the trial court's grant of defendants' summary judgment motion and dismissal of plaintiffs' complaint. Wenger v. Cardo Windows, No. A-3076-07 (App. Div. March 16, 2009).

STATE OF NEW JERSEY v. AARON H. BOYD

PER CURIAM Defendant Aaron Boyd appeals from his conviction, following a guilty plea, for second-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1) and (b)(2), fourth-degree resisting arrest, contrary to N.J.S.A. 2C:29-2(a)(1), and driving while his driver's license was suspended, contrary to N.J.S.A. 39:3-40. Boyd argues on appeal that the trial judge should have suppressed the evidence resulting from the motor vehicle stop that led to his arrest and that the judge should also have granted his motion for access to the arresting officer's personnel and disciplinary records to determine whether there had been racial profiling. We affirm the denial of the motion to suppress premised on Boyd's Fourth Amendment claims, but remand for further consideration of the issue of selective enforcement.

January 31, 2012

STATE OF NEW JERSEY v. HUGH MILLER

PER CURIAM Defendant Hugh Miller appeals from denial of his petition for post conviction relief (PCR) alleging ineffective assistance of counsel and other grounds for relief. We affirm. On April 7, 1995, defendant choked his girlfriend to death. He then went to the home of a friend, and, after sitting with the friend and having some beer, defendant retrieved a gun from his car and shot his friend in the head. After killing his friend, defendant went to his mother's house and shot her dead. He was arrested and faced a capital murder charge. He decided to accept a plea agreement to avoid the potential imposition of the death penalty. He pleaded guilty to the three murders on April 23, 1998, before Judge Donald Gaydos. He was sentenced in accordance with the plea agreement to three consecutive life terms, each with a minimum of thirty years to be served before eligibility for parole.

GREGORY HICKMAN v. NEW JERSEY STATE PAROLE BOARD

PER CURIAM Gregory Hickman's parole was revoked for "seriously" violating the "conditions" of his parole, N.J.S.A. 30:4-123.60; N.J.S.A. 30:4-123.63, and he was given a one-year future parole eligibility date, N.J.S.A. 30:4-123.64. That determination was made by a two-member panel of the Parole Board (Board) based on a recommendation of a hearing officer and the officer's written report summarizing the testimony and evidence presented at a revocation hearing. Hickman now appeals from that final agency decision. R. 2:2-3(a)(2).

STATE OF NEW JERSEY v. DONALD CLAY

PER CURIAM A jury convicted defendant of first-degree carjacking, N.J.S.A. 2C:15-2; first and second-degree robbery, N.J.S.A. 2C:15-1a(1) and (2); fourth-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-9; and third-degree escape, N.J.S.A. 2C:29-5. On November 16, 1998, the court imposed an aggregate custodial sentence of thirty years with a five-year period of parole ineligibility, to be served consecutive to a juvenile sentence for armed robbery that defendant was already serving. The conviction and sentence imposed were upheld on direct appeal. State v. Clay, No. A-2691-98 (App. Div. October 20, 2000). The Supreme Court denied defendant's petition for certification. State v. Clay, 167 N.J. 630 (2001). On October 21, 2008, nearly ten years after his conviction, defendant filed a pro se post-conviction relief (PCR) petition. On October 4, 2009, defendant supplemented his pro se petition with a certification and, the following month, submitted two additional certifications from Joyce Nadhir and Fern Davis. In his certification, defendant stated that based upon his trial counsel's representation as to his maximum custodial exposure upon conviction, he rejected the plea offer extended to him in which the State would recommend a thirteen-year prison term with a five-year period of parole ineligibility if he pled guilty to carjacking and escape. Both Nadhir and Davis, in their certifications, indicated that pending his trial, defendant had many discussions with them during which he explained that his trial counsel advised him to reject the plea offer, since a conviction would not result in a jail term of more than fifteen years with a five-year period of parole ineligibility.

STATE OF NEW JERSEY v. ELLEN HEINE

J.A.D. These two appeals, which stem from enforcement proceedings under the City of Garfield's ordinance-based property maintenance code, have been consolidated on our motion for purposes of this opinion. Defendant Ellen Heine seeks review of two judgments of the Law Division, by different judges, that found her guilty of violating several Garfield ordinances. We affirm in part and reverse in part.

RITA VITALE v. MARY CIMERA

PER CURIAM Plaintiff Rita Vitale brought suit against defendant Mary Cimera for injuries arising from a two-car accident. Plaintiff appeals from the judgment entered on October 27, 2010, which awarded her damages of $48,888, plus costs, and an order entered by the trial court on November 10, 2010, denying her motion for a new trial. We affirm. We briefly summarize the relevant facts, drawn from the testimony presented at trial. On the evening of February 14, 2006, at about 7:00 p.m., plaintiff was traveling westbound on West Greenbrook Road in North Caldwell. Defendant was traveling eastbound on the same road. Defendant made a left turn into the entrance to West Essex High School. Plaintiff's vehicle struck defendant's vehicle as it was making the turn.

MATTHEW SCHWEDE v. SOCIETA MADONNA BUILDING FUND

PER CURIAM Plaintiffs Matthew Schwede and Meghan Wood rented an apartment in Hoboken from the predecessor to defendant, Societa Madonna Building Fund, for $650 per month, signing a lease that commenced on May 1, 1991. On February 27, 1998, counsel to the building's owner requested a rent calculation for all apartments in the building in which plaintiffs resided. A response was issued to counsel and to each resident by Carole McLaughlin, the Division Chief of the Hoboken Division of Rent Leveling & Stabilization. The letter from McLaughlin, dated March 23, 1998, and addressed to Wood stated:

ESTATE OF PATRICIA GILMORE v. ANNA DE DONA, D.O.

PER CURIAM Plaintiffs appeal from orders for summary judgment entered on December 3, 2010, which dismissed their claims against defendants DeDona, Salisbury and Wagenhoffer.1 These dismissals were based on plaintiffs' failure to produce one of their originally identified medical malpractice experts, Dr. Paul DiLorenzo, for depositions, their failure to produce their other medical malpractice expert, Jeanette Seggebrush, a registered nurse, for the continuation of her deposition, and their failure to submit a report from a proposed substitute expert, Dr. Gil Roter, until after the deadline for the submission of expert reports had expired. Plaintiffs' attempt to name Dr. Roter as a substitute expert required them to amend their answers to interrogatories. By the time they attempted to do this, the discovery end date had expired, and a trial date had been fixed. Consequently, the court was only permitted to grant the extension if plaintiff made a showing of "exceptional circumstances." R. 4:24-1(c).

STATE OF NEW JERSEY v. JESUS SERRANO

PER CURIAM Defendant Jesus Serrano pled guilty to two counts of third degree endangering the welfare of a child and received concurrent three-year probationary terms -- now complete. In addition, he is subject to Megan's Law,1 including Community Supervision for Life (CSL). Defendant appeals the December 22, 2010 order denying his petition for post-conviction relief (PCR), in which he moved to withdraw his guilty plea. Following imposition of sentence in August 2005, defendant did not file a notice of appeal. Rather, on July 14, 2010, defendant filed a petition for PCR in which he asserted he was innocent of the charges and entered an uninformed guilty plea. In his petition, defendant relates, and the record reflects, that one of the victims had recanted before defendant entered his guilty plea. Defendant also alleged that the other victim accused him out of spite in retaliation for his strict supervision. He alleged in his petition that his attorney advised the recantation would only assist negotiations of a satisfactory plea agreement.

DIVISION OF YOUTH AND FAMILY SERVICES J.D and K.V IN THE MATTER OF E.V

PER CURIAM Defendant, J.D., the father of E.V., a girl born in April 1994, appeals from: (1) the July 29, 2010 order finding that he caused E.V. to become an abused and/or neglected child as defined by N.J.S.A. 9:6-8.21; and (2) the August 19, 2010 order denying reconsideration. We affirm. These are the relevant facts. Defendant had sole custody of E.V. since 2008. E.V.'s mother (K.V.) is not a party to this appeal. In March 2009, defendant sought the Division of Youth and Family Services' (DYFS) assistance, complaining that E.V., who has been diagnosed with bipolar disorder and attention deficit/hyperactivity disorder, was acting out. DYFS referred E.V. to Devereux Behavioral Health Center (Devereux) to address her anger control problem, oppositional defiance to family and authority figures, childhood trauma, and depression. On July 14, 2009, however, defendant removed E.V. from Devereux against the advice of its staff and without authorization from DYFS. E.V. resumed living with her father.

U.S. BANK NATIONAL ASSOCIATION v. FREDI M. BERTOLI

PER CURIAM Defendant Fredi Bertoli appeals from the March 8, 2010 Chancery Part order denying her motion for a stay of the Sheriff's sale of her foreclosed property. For the reasons that follow, we affirm.

JESSE ROSENBLUM v. ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF CLOSTER

PER CURIAM Plaintiff, Jesse Rosenblum, appeals pro se from an April 11, 2011 order of Judge Conte affirming the decision of the Zoning Board of Adjustment of the Borough of Closter (Board) granting variance relief to Robert and Vanessa Wermert. The record discloses that the Wermerts purchased the property in question in 1999, having been tenants there for a period of ten years. The property had been used, throughout the Wermerts's occupancy, as a two-family residence. However, although two-family residences were conditionally permitted in the Residential "B" Zoning District in which the residence was situated, that use for this particular property was not permitted in the zone because the structure and land did not comply with the bulk requirements of the zoning ordinance. The required side yard setback of fifteen feet was deficient by 2.38 feet; the impervious coverage limit for the zone of thirty percent was exceeded by 5.67 percent; and the authorized percentage limit for accessory structures in relation to principal structures was thirty percent, whereas the accessory structures on this property exceeded that limit by thirty-two percent.

STATE OF NEW JERSEY v. ELLEN HEINE

January 30, 2012

STATE OF NEW JERSEY v. DAMON R. WILLIAMS

PER CURIAM Defendant Damon R. Williams appeals from his conviction for theft from the person, N.J.S.A. 2C:20-2b(2)(d), and his sentence. We affirm. Defendant was indicted for second-degree robbery, N.J.S.A. 2C:15-1, arising from events that occurred at the Pennsauken branch of Commerce Bank on June 27, 2007. At approximately 10:00 a.m. that day, Barbara Carter, a customer service representative, observed a man standing by the doorway looking in the direction of the tellers. He caught her attention because he remained standing there for so long with no apparent purpose. She described him as a dark-skinned African-American male wearing a one-piece "construction outfit," with a white asbestos mask covering his mouth and nose. Because the man was wearing a baseball hat pulled down over his head, she was unable to see whether he had hair on his head but saw black and white specks going through his hat and salt and pepper facial hair sticking out from the mask. In the robbery report Carter filled out that day, she indicated the man was forty to forty-two years old, approximately "five ten" and 170 pounds. Carter saw a water bottle on the counter but did not know if the bottle belonged to the man. She did not notice when he left the bank, but he stayed for about "five, seven, 10 minutes."

STATE OF NEW JERSEY v. JAMES ALEXANDER

PER CURIAM In appealing his conviction and the sentence imposed, defendant argues, among other things, that the trial judge erred in instructing the jury about accomplice liability, after deliberations had begun, in response to a question posed by the jury. After close examination of the issue, we conclude that the judge appropriately provided the additional instructions. We also reject defendant's other arguments and affirm.

LOUISE A. DAVIDOWSKI v. ALAN DAVIDOWSKI

PER CURIAM Plaintiff Louise Davidowski appeals from dismissal at trial of her cause of action for fraud. Defendants are her son, Alan Davidowski, and his friend, Gail Dellaira, who is a realtor. Louise alleged that Alan1 and Dellaira defrauded her of about $125,000 by means of a sham private mortgage and note to Dellaira executed near the time that her husband, Henry Davidowski, died. Louise also claimed that Alan had promised to make her a beneficial co-owner of a home he purchased using proceeds from the sale of Louise's home after Henry's death. During several days of testimony at trial, evidence was presented that Louise had filed a petition for bankruptcy soon after selling her home in 2005, and her debts had been discharged. In the bankruptcy petition, Louise had not listed a beneficial interest in Alan's property or a potential claim against Dellaira. Consequently, at the conclusion of Louise's case in chief, the trial judge dismissed her claims of fraud on grounds of judicial estoppel.

BRUCE SPIEKER v. PUBLIC EMPLOYEES RETIREMENT SYSTEM

PER CURIAM This is an appeal from the denial by the Board of Trustees of the Public Employees Retirement System of an application for an accidental disability pension. Appellant was employed by the Department of Corrections as a senior corrections guard at the South Woods State Prison from June 1997 to May 2005. Appellant's regular and assigned job duty was to patrol the perimeter of the prison in a motor vehicle. For the last two years of his employment, he performed this assignment in a Ford Explorer, which had a broken driver's seat that the prison maintenance staff failed to repair. Appellant would spend as much as four hours a day, five days a week, driving this vehicle.

LOUIS DUBREL v. MAPLE CREST AUTO GROUP

PER CURIAM Petitioner Louis DuBrel appeals from the January 26, 2011 order of the Division of Workers' Compensation dismissing his petition with prejudice and terminating his benefits pursuant toN.J.S.A. 34:15-57.4(c)(1) following a bench trial. The Judge of Compensation found petitioner'stestimony that he no longer drives horses to be "purposefully and knowingly false" and "made for thepurpose of obtaining benefits," which conduct was "so flagrantly galling as to constitute a serious violation per se" for purposes of the aforementioned statute. On appeal, petitioner argues the court improperly admitted testimonial and documentary evidence, which deprived him of a fair trial. He alternatively argues the court exceeded the scope of the trial by depriving him of all benefits. We are not persuaded by petitioner's arguments and affirm.

A.T v. R.T

PER CURIAM Defendant, R.T., appeals from the final restraining order (FRO) entered against him on February 18, 2011, pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The order barred him from having any contact with the plaintiff, A.T., and directed him to stay away from her home and her place of work. The FRO contained other provisions, as well. On appeal, defendant raises the following arguments: POINT I

STATE OF NEW JERSEY v. THOMAS J. BROCKINGTON

PER CURIAM After a request by defendant, Thomas J. Brockington, for a Wade1 hearing was denied, defendant was convicted by a jury of second-degree robbery, N.J.S.A. 2C:15-1 (count one); second-degree burglary, N.J.S.A. 2C:18-2 (count two); third-degree criminal restraint, N.J.S.A. 2C:13-2 (count three); and third-degree terroristic threats, N.J.S.A. 2C:12-3 (count four). After merging counts two and four with count one, Judge Scott J. Moynihan sentenced defendant to a nine-year custodial term subject to an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the robbery conviction, and a four-year consecutive term on the criminal restraint conviction. The court also imposed appropriate fines and penalties. On appeal, defendant challenges the denial of his request for a Wade hearing, claims the verdict was against the weight of the evidence because it was solely based on hearsay, and challenges the imposition of consecutive sentences. We affirm.

ESSECARE, INC v. JPMORGAN CHASE BANK NA

PER CURIAM This appeal involves a dispute over a prepayment penalty of $167,133.98 on a $700,000 ten-year commercial loan â- secured by a mortgage on real estate -- between plaintiff Essecare, Inc. (Essecare), and a federally-chartered bank, JPMorgan Chase Bank, NA (Chase). Specifically, Essecare challenges the propriety and amount of the prepayment penalty when the indebtedness was paid in full seven years early. The Law Division granted summary judgment dismissing Essecare's complaint on the ground that its causes of action were preempted by the National Bank Act of 1864 (the Act), 12 U.S.C. Â§ 1 et seq., and regulations promulgated thereunder by the Office of the Comptroller of the Currency (OCC). We affirm in part, reverse in part, and remand for further proceedings. I.

STATE OF NEW JERSEY IN THE INTEREST OF A.W.

PER CURIAM A.W., a juvenile, appeals from an adjudication of delinquency for an act which, if committed by an adult, would have constituted third-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1b(5)(h), and the disposition of a two-year term at the Jamesburg Training School for Boys (Jamesburg). On appeal, A.W. argues the following points:

STATE OF NEW JERSEY v. JOSE E. CRUZ

PER CURIAM Pursuant to an agreement with the State, defendant Jose E. Cruz pled guilty to five counts of first-degree robbery, N.J.S.A. 2C:15-1b, charged in a twenty-seven-count indictment. The remaining twenty-two counts were dismissed, and defendant was sentenced to five concurrent twelve-year terms of imprisonment subject to periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2. On direct appeal, defendant only challenged his sentence. We affirmed after hearing oral argument in accordance with Rule 2:9-11, and the Supreme Court denied certification, State v. Cruz, 194 N.J. 446 (2008). Defendant now appeals from a denial of his petition for post-conviction relief.

January 27, 2012

JOSEPH R. FOSTER v. JOSEPH P. STAMPONE

PER CURIAM In this appeal, we conclude that the findings of the Chancery judge, rendered at the conclusion of a non-jury trial, resulted in an equitable division of partnership assets and a proper resolution of the claims for credits. Finding no merit in any of the parties' arguments, we affirm.

STATE OF NEW JERSEY v. D.D.

PER CURIAM Tried by a jury, defendant, D.D., was convicted of two counts of first-and one count of second-degree sexual assault on three boys all under the age of twelve, N.J.S.A. 2C:14-2(a)(1) and N.J.S.A. 2C:14-2(b). He was also convicted of three counts of child endangerment, N.J.S.A. 2C:24-4(a). After appropriate mergers, defendant was sentenced to an aggregate term of forty years, with an eighty-five percent period of parole ineligibility subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals, and for the following reasons, we affirm.

ROBERT J. TRAVISANO v. BOARD OF CHOSEN FREEHOLDERS FOR UNION COUNTY

PER CURIAM Plaintiff Robert J. Travisano, a former Union County employee, alleged in this action that he was discriminated and retaliated against based on his age, disability, and political affiliation, asserting violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2, as well as other common law torts. He claims in this appeal, among other things, that the trial court erred in granting summary judgment in favor of defendants George W. Devanney, who was the Union County Manager, and the Board of Chosen Freeholders (the Board), and in denying him leave to amend his complaint to add Union County as a party late in the litigation. We reject these and all of plaintiff's other arguments and affirm.

STATE OF NEW JERSEY v. JONATHAN A. ZARATE

PER CURIAM Tried by a jury, defendant Jonathan Zarate was convicted of first-degree murder, N.J.S.A. 2C:11-3(a)(1)-(2) (count 1); third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (count 6); second-degree desecrating human remains, N.J.S.A. 2C:22-1(a)(1) (count 7); second-degree use of a juvenile to commit a crime, N.J.S.A. 2C:24-9(a)(3) (count 8); two counts of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (counts 2 and 4), and two counts of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (counts 3 and 5). He was sentenced to an aggregate term of life imprisonment plus twenty-four years and assessed appropriate fines and penalties. Defendant appeals. Save for the vacatur of the sentence on count four, which merges with count one, we affirm the judgment of conviction. This criminal episode stems from the brutal murder and dismemberment of defendant's sixteen-year-old neighbor, Jennifer Parks. According to the State's proofs, defendant invited Jennifer to his father's home to watch television at around 1:30 a.m. on July 30, 2005. Both he and his younger brother had been acquainted with her for some time from school and the neighborhood. Jennifer had not been on good terms with defendant's brother, whom she accused of teasing her and who had been disciplined at school a couple of years prior based on those accusations.

DIVISION OF YOUTH AND FAMILY SERVICES v. I.C IN THE MATTER OF THE GUARDIANSHIP OF S.A.A.C Minor-

PER CURIAM I.C., mother of S.A.A.C. (fictitiously, Stuart), appeals the February 8, 2011 order terminating her parental rights. After reviewing the record in light of the contentions advanced on appeal, we affirm substantially for the reasons stated by Judge James Hely in his written opinion. The findings are "based on clear and convincing evidence supported by the record," and the legal conclusions are sound. N.J. Div. of Youth & Family Servs. v. P.P., 180 N.J. 494, 511 (2004). I.C. gave birth to Stuart in March 2007.1 The Division of Youth and Family Services (Division) first investigated the family in October 2007, after receiving a report from a caseworker in New York that I.C. was smoking marijuana and breastfeeding Stuart while high. It was also reported that I.C. was prostituting herself and left Stuart in the care of others when doing so. The New York caseworker indicated that I.C. had a history of depression, for which she had been under the care of a psychiatrist, but that she stopped treatment and ceased taking her depression medication when she became pregnant with Stuart.

CTC DEMOLITION COMPANY INC v. GMH AETC MANAGEMENT/DEVELOPMENT LLC

FISHER, J.A.D. In this appeal, we consider how the first-filed rule of comity -- by which "the court which first acquires jurisdiction has precedence" over another court later acquiring jurisdiction absent "special equities," Yancoskie v. Del. River Port Auth., 78 N.J. 321, 324 (1978) -- applies when a party demands mediation or arbitration, as contractually obligated, and the adverse party brings a declaratory judgment suit in another state regarding the applicability of mediation or arbitration. We conclude that the demand for mediation in this case should be viewed as the first-filed action and, alternatively, that special equities preclude deferral to a court that later acquired jurisdiction over the dispute.

SYLVESTER FLORENCE v. ACAPULCO TAXI, L.L.C.

PER CURIAM We have been advised that this matter has been amicably settled and the parties have stipulated to the dismissal of this appeal. Accordingly, the appeal is dismissed with prejudice and without costs.

STATE OF NEW JERSEY v. KEITH HINES

PER CURIAM In these consolidated matters, defendants Mark Hines and his brother, Keith Hines,1 appeal from an order dated August 6, 2010, denying their motions to suppress evidence. After the order was entered, Mark pled guilty to first-degree maintaining or operating a facility for manufacturing marijuana, N.J.S.A. 2C:35-4 (count one), and second-degree conspiracy to manufacture marijuana, N.J.S.A. 2C:5-2, N.J.S.A. 2C:35-5(a)(1), and N.J.S.A. 2C:35-5(b)(10)(b) (count six). The court sentenced Mark to a ten-year prison term with five years of parole ineligibility on count one, and it imposed a concurrent five-year term on count six. Keith pled guilty to third-degree conspiracy to manufacture marijuana, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5(b)(11), and was sentenced to a one-year period of probation, subject to a 270-day jail term. For the reasons that follow, we affirm.

STATE OF NEW JERSEY v. MARK HINES

THOMAS J. MALLON v. ROY SCOTT

PER CURIAM Defendants MLZ Corporation, LLC (MLZ), and its principal Michael Zimmermann appeal from the order of the Law Division denying their motions for an award of counsel fees against plaintiff Thomas J. Mallon and his attorneys Randall L. Tranger and Michael D. Halbfish. We affirm. I.

STATE OF NEW JERSEY v. PERCY HENRY PATRICK

PER CURIAM Defendant appeals from his conviction for third-degree theft from the person, N.J.S.A. 2C:20-2(b)(2), disorderly persons simple assault, N.J.S.A. 2C:12-1(a)(1), and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2). The judge imposed an aggregate term of five years in prison with twenty months of parole ineligibility. We affirm.

January 26, 2012

STATE OF NEW JERSEY v. MANUEL RIVERA

PER CURIAM Defendant Manuel Rivera appeals from an order denying his motion seeking early termination of probation. Subsequently, defendant completed his probationary term, rendering his appeal moot. Accordingly, we dismiss.

WAKENNA DOWELL v. HOSSEIN AMERI

PER CURIAM Defendant Hossein Ameri appeals from the order of the Law Division, Special Civil Part, awarding judgment of $1550.34 to plaintiff, Wakenna Dowell, after a bench trial. We affirm.

BARRY S. ZALL v. BOARD OF REVIEW DEPARTMENT OF LABOR

PER CURIAM Claimant, Barry Zall, appeals from the final administrative decision by the Board of Review (Board) finding that he had insufficient base weeks or wages from which he would qualify for unemployment benefits. We affirm. Zall was the sole shareholder of the now defunct Distribution Systems, a corporation which, in 2008, became involved in civil litigation and was also the subject of a criminal investigation. During the course of the litigation, Zall was unable to maintain the corporation's business operations because it lost clients and had no income. It ceased operations in March 2008. The litigation spanned two years and consumed Zall's time. Consequently, he contended he was unable to seek and secure employment. The criminal investigation terminated and the civil litigation settled in May 2010. In that same month, Zall filed for unemployment benefits.

S.B. v. Z.H.

PER CURIAM Defendant Z.H. appeals from a final restraining order (FRO) entered pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Defendant argues that the FRO must be vacated because plaintiff is not a victim entitled to protection by the PDVA; defendant did not commit an act of domestic violence; a restraining order was not required under the circumstances of the case; plaintiff, not defendant, should have been barred from the residence; and the findings of fact are not supported by the evidence. We disagree and affirm. By late December 2010, plaintiff had been living in her mother's home for approximately five months. Plaintiff contemplated moving but had made no specific plans to do so. Z.H. and plaintiff's sister also resided at plaintiff's mother's home. They had been living with plaintiff's mother for several years.

ELIZABETH SMITH v. PATRICK GILBOY

PER CURIAM Defendant appeals from the part of a post-judgment order entered on January 4, 2011, which determined that he owed plaintiff $7,687.60 in child support arrearages and rescinded the part of a December 1, 2010 order that directed the Probation Department to conduct a formal audit of his account. Initially, we note that the parties' child was emancipated on June 4, 2009. Therefore, this appeal involves solely the amount of child support arrearages that accumulated up to that date.

OF YOUTH AND FAMILY SERVICES v. N.H. IN THE MATTER OF THE GUARDIANSHIP OF W.M. and N.H minors

PER CURIAM Defendant, N.H., appeals from a November 19, 2010 judgment of guardianship, terminating her parental rights to her son, W.M., born January 14, 2005, and her daughter, N.H., born December 27, 2007.1 The children had been in foster care since November 2008, and with the same foster parents from January 9, 2009 until the trial court's decision almost two years later. The current foster parents wished to adopt the children.

LESLIE GABER v. HERMAN GABER

PER CURIAM In this post-judgment matrimonial matter, both parties appeal from a March 18, 2010 order. Plaintiff Leslie Gaber (wife) challenges the successful motion in aid of litigant's rights of defendant Herman Gaber (husband) to enforce his right to equitable distribution under the parties' property settlement agreement (PSA) and recover his share of the proceeds of a marital investment from a damages award, plus counsel fees. Husband cross-appeals the denial of prejudgment interest on the award and the denial of the balance of the requested counsel fee. We discern no error of law or abuse of discretion by the Family Part judge and affirm.

WELLS FARGO, N.A. v. GIRALDA FARMS PHASE 1 SPE LLC

PER CURIAM This matter having been resolved by the parties, the appeal is dismissed with prejudice and without costs to any party.

STATE OF NEW JERSEY v. RANDY CLAY

PER CURIAM Defendant Randy Clay appeals from the denial of two motions preceding his conviction based upon entry of a guilty plea. He first sought to suppress evidence obtained in the execution of a search warrant without the benefit of an evidentiary hearing. His second motion sought discovery of the surveillance location used by police affiants, whose observations were the basis of the search warrant requests. In support of his request to reverse his conviction for various drug offenses, defendant combines these arguments in a single point, arguing: THE DEFENDANT WAS DEPRIVED OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT TO CONFRONTATION AND DUE PROCESS WHEN THE COURT RULED THAT THE STATE DID NOT HAVE TO ADEQUATELY DISCLOSE THE SURVEILLANCE LOCATION FROM WHICH THE POLICE VIEWED THE ACTIVITIES THAT LED TO THE ISSUANCE OF SEARCH WARRANTS AND TO HIS ARREST, OR TO REVEAL ANY DOCUMENTATION SUPPORTING THE USE OF A NARCOTICS BUY FUND. U.S. CONST. AMENDS[.] VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9 AND 10.

January 25, 2012

MARIA L. QUIJANO v. VICTOR M. QUIJANO

PER CURIAM In this matrimonial matter, defendant Victor M. Quijano (husband) appeals from the Family Part's July 28, 2010 order enforcing the arbitrator's decision pursuant to the parties' 2004 dual judgment of divorce providing for "binding arbitration" of unresolved financial issues. On appeal, husband argues the court erred in: (l) enforcing an unsigned property settlement agreement (PSA) as he never agreed to its terms; (2) disallowing a plenary hearing as to the existence of a valid and enforceable PSA; and (3) failing to award all appropriate credits he advanced plaintiff, Maria L. Quijano (wife). Wife concedes the court's calculation omitted credits awarded by the arbitrator and should be modified to reflect the correct amount due of $314,010, plus the $7,000 pendente lite counsel fee that has not been appealed. We affirm the order as modified.

STATE OF NEW JERSEY v. DAVID FIGUEROA

PER CURIAM Defendant David Figueroa appeals from the February 3, 2009 order denying his pretrial motion to dismiss the indictment against him based on lack of a speedy trial. He also challenges the denial of gap time credits. He preserved both issues when he pled guilty to two counts of armed robbery. We affirm.

STATE OF NEW JERSEY v. JOSEPHUS NYEMA

PER CURIAM Defendant Josephus Nyema appeals from an order dated September 30, 2009, denying his petition for post-conviction relief (PCR). We affirm.

KEITH E. JOHNSON v. NEW JERSEY STATE PAROLE BOARD

PER CURIAM Keith E. Johnson appeals from the final agency decision of the State Parole Board regarding the calculation of his sentence after he was denied parole on January 21, 2009. After reviewing the record in light of the contentions advanced on appeal, we affirm.

STATE OF NEW JERSEY v. V.C.

PER CURIAM Defendant V.C. appeals from the Law Division's October 20, 2008 order denying his petition for post-conviction relief (PCR) following an evidentiary hearing. He had alleged ineffective assistance of trial and appellate counsel. We affirm.

STATE OF NEW JERSEY v. ANDREJ WISNISKI

PER CURIAM Defendant appeals from his de novo conviction for refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.2. The main question is whether he was informed of the consequences of his refusal. Defendant, who speaks Polish and English, contends that he was not informed because a police officer communicated with him only in English. We affirm.

January 24, 2012

STATE OF NEW JERSEY v. ERIC NA-EEM ROCK

PER CURIAM After a jury trial, defendant Eric Na-Eem Rock was convicted of two counts of armed robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and, after a second jury trial, second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b)(1). Defendant is serving an aggregate custodial sentence of sixteen years, subject to eighty-five per cent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

M.J.K v. R.M.K

PER CURIAM This is an appeal from a final judgment in an action brought under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, which concluded that although defendant had committed predicate acts of harassment upon plaintiff, a final domestic violence restraining order was not necessary to protect plaintiff. Plaintiff and defendant were married in 1999. They separated and stopped living together in October 2007. Two children were born of the marriage, who were five and nine when this case was tried. Plaintiff has residential custody and defendant has substantial parenting time.

January 23, 2012

HORACE GLENN v. NEW JERSEY DEPARTMENT OF CORRECTIONS

PER CURIAM Appellant Horace Glenn appeals from the final administrative decision of respondent Department of Corrections (the Department), disciplining him for infraction .402, being in an unauthorized area, in violation of N.J.A.C. 10A:4-4.1. We affirm.

STATE OF NEW JERSEY v. SHAWN MEYERS

PER CURIAM Defendant Shawn Myers appeals from the July 24, 2009 order denying his petition for post-conviction relief (PCR) without an evidentiary hearing. He claims that he is entitled to PCR based upon the following arguments:

STATE OF NEW JERSEY v. JORDAN ATKINSON

PER CURIAM Tried by a jury, defendant Jordan Atkinson was convicted of 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 (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count four). Following merger, the trial judge imposed an aggregate sentence of fifteen-years in state prison, eighty-five percent of which must be served prior to parole consideration, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, with a five-year period of parole supervision upon release. Defendant appeals from his conviction and sentence arguing:

STEPHANIE DECILVEO v. JOSEPH DECILVEO

PER CURIAM In this post-judgment matrimonial matter, plaintiff Stephanie Woolf appeals from the October 29, 2010 Family Part amended order, which denied her motion for enforcement of litigant's rights and attorneys fees and granted defendant Joseph Decilveo's cross-motion for enforcement and attorneys fees. Having reviewed the record in light of the applicable legal principles, we affirm.

MARY LONDONO v. CITY OF ELIZABETH

PER CURIAM Plaintiff Mary Londono appeals from the November 12, 2010 Law Division order granting summary judgment to defendant Roman A. Montes and dismissing plaintiff's intentional tort claims because she did not file notice as required by the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-8, and failed to comply with the statute of limitations. We affirm.

PNC BANK, N.A v. TURKIYEM VIDEO INC

PER CURIAM On October 29, 2010, defendant PNC Bank, N.A., (PNC) obtained summary judgment against defendants Turkiyem Video Inc. and Ugur Ertanis in the amount of $40,612.58. The figure represents the balance due on a line of credit, initially extended by PNC to Turkiyem Video Inc. on May 26, 2004, and thereafter increased on July 20, 2006. Ertanis signed a personal guaranty securing the loan, both when the company first obtained the line of credit and when it was subsequently increased. The obligation went into default on December 26, 2008. Ertanis appeals the judgment, and we affirm. On January 31, 2007, Ertanis sold his fifty percent interest in a business referred to in the sale documents as Turkiyem Video Electronics, Inc.1 to his partner, Ayhan Sahan, together with his fifty percent share in a second business known as TWF Electronics, LLC. As partial consideration for the sale, Sahan agreed to assume sole responsibility for the business indebtedness, including the PNC line of credit.

DIVISION OF YOUTH AND FAMILY SERVICES v. A.R. IN THE MATTER OF A.M.R., M.F.R. and A.A.R

PER CURIAM Defendant, A.R., the father of minor children A.A.R., born in 1992, and fraternal twins, A.M.R. and M.F.R., born in 1994, appeals from an order of the Family Part, entered on August 20, 2008 following a fact finding hearing, determining by a preponderance of the evidence that A.R. abused or neglected his children, in that he refused to permit A.A.R. to return home,1 failed to ensure that the children were attending school and used excessive corporal punishment on the children, thereby placing the children at significant risk of harm.

YINGLU ZHANG v. AJAY SATHYANATH

PER CURIAM Defendant appeals from post-judgment orders entered on December 17, 2010 and February 18, 2011, which compelled him to drive the daughter of his marriage to plaintiff to her piano, karate and drawing lessons during his parenting time and denied his application to be allowed to enroll his daughter in a piano class near his home in Edison to attend during his parenting time. Our review of such rulings is limited to determining whether the trial court abused its discretion. See Cesare v. Cesare, 154 N.J. 394, 411-16 (1998). We are satisfied, substantially for the reasons set forth in the December 17, 2010 and February 18, 2011 orders, that the trial court's rulings challenged in this appeal did not constitute an abuse of discretion. Defendant's arguments do not warrant any additional discussion. R. 2:11-3(e)(1)(E). Affirmed.

SHANTA WARTHEN v. HIGH POINT INSURANCE COMPANY

PER CURIAM Shanta Warthen was injured in an automobile accident on May 19, 2006. Following the accident, she received medical treatment from Phoenix Physical Medicine. At the time of the accident, Warthen had an automobile insurance policy issued by defendant High Point Insurance Company that provided personal injury protection (PIP) coverage. Warthen assigned her claim for PIP benefits to Phoenix.

STATE OF NEW JERSEY v. KEITH WILLIAMS

PER CURIAM After his motion to suppress evidence without a warrant was denied, defendant Keith Williams pled guilty to third-degree receiving stolen property (a Jeep Grand Cherokee) in violation of N.J.S.A. 2C:20-7. Defendant was sentenced in accordance with the negotiated plea to four years in prison to be served concurrently with any violation of probation sentences that he received. On appeal, defendant argues the trial court erred in denying his suppression motion. For the reasons that follow, we affirm.

B.A.D v. L.E

PER CURIAM Defendant appeals from a final restraining order under the Protection Against Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. Defendant's former boyfriend, plaintiff B.A.D., obtained the order after the court found that defendant committed an act of harassment against him. See N.J.S.A. 2C:33-4 (defining harassment); N.J.S.A. 2C:25-19 (defining harassment as an act of domestic violence). We affirm.

January 20, 2012

STATE OF NEW JERSEY v. ELLEN HEINE

PER CURIAM Defendant Ellen Heine is appealing from a judgment of the Law Division, Bergen County, entered on a de novo review of her conviction in the Garfield Municipal Court for a violation of an ordinance that requires occupants to maintain exterior property and premises under their control in a clean, safe and sanitary condition. In a written opinion, Judge Edward A. Jerejian set forth the factual and legal basis for his determination that the State had established beyond a reasonable doubt that defendant had violated the ordinance. Because we are satisfied from our consideration of the proofs as a whole that Judge Jerejian's findings and the result he reached could reasonably have been reached on sufficient credible evidence in the record, State v. Locurto, 157 N.J. 463, 471 (1999); State v. Johnson, 42 N.J. 146, 162 (1964), we affirm. Underlying our affirmance is our agreement with the Law Division's conclusions that the ordinance is not unconstitutionally vague and that the municipal court judge was not required to order a change of venue. Prior to the trial, defendant filed a motion to change the venue, asserting a conflict of interest existed because she had joined the City of Garfield as a third-party defendant in a quiet title action between herself and the previous owner, Dr. Edwin Gilbert. She argued that the municipal court judge could not entertain the matter without being affected by an appearance of impropriety or bias. The court rejected these arguments and denied the request to change the venue, without stating the reasons for the denial.

KEITH ARMSTRONG v. CITY OF JERSEY CITY

PER CURIAM Plaintiff Keith Armstrong, a detective employed by the Jersey City Police Department ("the JCPD"), appeals from an order granting summary judgment to defendants and dismissing his discrimination lawsuit. We affirm. I.

STATE OF NEW JERSEY v. JOSEPH POLIZZI

PER CURIAM Defendant Joseph Polizzi appeals from the Law Division's April 30, 2010 order dismissing his petition for post-conviction relief (PCR). We affirm. I.

DAMON TOOMBS v. ANTHONY PILATO

PER CURIAM Plaintiff Damon Toombs appeals from orders of the Law Division dated October 15, 2010, and October 29, 2010, entering a judgment for plaintiff in the amount of $9204.10, denying motions to set aside the jury verdict and a request for a new trial or, in the alternative, additur.

PING ZHANG v. JULIP PROPERTIES

PER CURIAM Plaintiff Ping Zhang appeals from a final decision by the Division on Civil Rights (DCR), finding no probable cause for her complaint against defendants, Julip Properties and Observer Plaza Condominium Association, the property management company and condominium association, respectively, of Observer Plaza, the seventy-nine unit residential condominium at which plaintiff resides. We affirm. Plaintiff filed a complaint in which she alleged she was subjected to disparate treatment as a condominium owner because of her gender and national origin in violation of N.J.S.A. 10:5-12(g) of the Law Against Discrimination. Plaintiff's underlying complaint against defendants is that she, a female of Asian descent, was treated differently from similarly situated residents. She alleged that she was fined for storing cardboard boxes in her parking space, charged for viewing garage surveillance tapes while other residents were not, and that defendant placed a lien on her property for making a late payment for a special assessment.

STATE OF NEW JERSEY v. G.S.

PER CURIAM Defendant G.S. appeals from his conviction for disorderly persons contempt for violation of a final restraining order, N.J.S.A. 2C:29-9(b). We affirm. Defendant's former wife, D.S., obtained a final restraining order (FRO) against defendant in February 2006. Both the FRO and the May 2006 amended FRO barred defendant from D.S.'s residence and place of employment and also prohibited him, inter alia, from:

PAUL EMMA v. JESSICA EVANS

FISHER, J.A.D. "What's in a name?"1 In this appeal, we examine the propriety of a presumption in favor of the parent of primary residence2 when seeking, over the other parent's objection, a change in the surname of their two children. In two cases -- Ronan v. Adely, 182 N.J. 103 (2004) and Gubernat v. Deremer, 140 N.J. 120 (1995) -- the Court authorized application of a presumption in the PPR's favor in name-change disputes when the child was born out of wedlock. In this matter of first impression, we reject the adoption of such a presumption when the child was born in wedlock to parents who subsequently divorce.

STATE OF NEW JERSEY v. EDUARDO TAPIA

PER CURIAM Defendant Eduardo Tapia appeals the March 11, 2010 order denying his second petition for post-conviction relief (PCR). For the reasons that follow, we affirm.

IN THE MATTER OF THE CIVIL COMMITMENT OF U.C

J.A.D. (retired and temporarily assigned on recall). The issue presented by this appeal is whether a trial court that has placed a developmentally disabled civil committee on "continued extension pending placement" (CEPP) status has the authority to order the Division of Developmental Disabilities (DDD) to fund that person's placement in a particular facility the court determines to be most appropriate. We conclude that the Legislature has delegated exclusive authority to the DDD to determine the appropriate placement of a developmentally disabled person eligible for its services. Therefore, a trial court that has placed a developmentally disabled person on CEPP status lacks authority to override the DDD's determination of an appropriate residential placement for that person.

CARMEN L. COLON v. LIBERTY MUTUAL INSURANCE COMPANY

PER CURIAM Defendant Liberty Mutual Fire Insurance Company1 (Liberty Mutual) appeals from a May 28, 2010 final order and judgment of the Law Division, Camden County, declaring that a homeowner's policy issued by Liberty Mutual to defendants Patricia and Levarn Whetstone, the parents of defendant Jeanine Green, provides coverage for claims for damages caused by Green when she bit plaintiff Carmen Colon, a police officer, after she stopped Green's automobile.2 Judge Michael J. Kassel considered the parties' cross-motions and rejected Liberty Mutual's assertion that the automobile exclusion in the homeowner's policy bars coverage. Judge Kassel concluded the bodily injuries sustained by plaintiff did not "arise out of the ownership, maintenance, use, loading, or unloading of a motor vehicle" because there was not a substantial nexus between the use of the automobile and the biting to bring the incident within the exclusionary provision of the policy. We affirm substantially for the reasons expressed by Judge Kassel in his oral opinion of April 16, 2010. The essential facts are not in dispute.3 On May 13, 2007, plaintiff and Patrolman Daniel Battista of the Lawnside Police Department responded to a call from Patricia Whetstone regarding a domestic situation. Whetstone told the officers she and her daughter, Green, had an altercation, after which Green left home in her motor vehicle with Green's three-year old son. Whetstone expressed fear for the safety of both Green and her child because Green was schizophrenic, and she could become aggressive when she had not taken her medication.

STATE OF NEW JERSEY v. ORDALE R. TELFAIR

PER CURIAM Defendant Ordale Telfair appeals from his conviction, following a guilty plea, for third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10(a)(1), as well as the resulting sentence of incarceration for five years with no parole disqualifier. We affirm. I.

GREGORY M. D'AGOSTINO JR v. BOARD OF REVIEW DEPARTMENT OF LABOR

PER CURIAM Appellant Gregory M. D'Agostino, Jr., appeals from the final decision of respondent Board of Review (Board), which affirmed the decision of the Appeal Tribunal that D'Agostino must refund $1752 in unemployment benefits pursuant to N.J.S.A. 43:21-16(d) and N.J.A.C. 12:17-14.2, is disqualified for benefits for one year pursuant to N.J.S.A. 43:21-5(g)(1) for making false or fraudulent representations, and must pay a $438 fine pursuant to N.J.S.A. 43:21-16(a). We affirm. D'Agostino filed a claim for unemployment compensation benefits on November 30, 2003, and received a weekly benefit rate of $207. During the period of the week ending January 30, 2004 through the week ending May 15, 2004, he collected $1752 in unemployment benefits. During that same period, he was employed by four different employers, Culinary Management Group (Culinary), Superstar Enterprises, t/a The Cove (The Cove), Martell's Seabreeze, Inc. (Martell's), and J.L.T.G., Inc. t/a Village Bar (Village Bar). An investigation by the Department of Labor's Division of Unemployment Insurance (Division), which included a review of the employers' wage and payroll records, confirmed that during the weeks D'Agostino collected unemployment benefits, he earned wages that he either did not report or underreported.

GAIL SCHMIDT v. CARL SCHMIDT

PER CURIAM Defendant Carl Schmidt appeals from a June 11, 2010 order of the Family Part denying his request to have plaintiff Gail Schmidt reimburse him for certain medical expenses incurred by him on behalf of their daughter, and to sanction plaintiff and seize her account at Bank of America, N.A. For the reasons that follow, we affirm.

January 19, 2012

T.B. v. ESSEX COUNTY DIVISION OF WELFARE

PER CURIAM This appeal arises out of the termination of welfare benefits that had been paid to appellant T.B. for eighty-four months under two related State programs. The Essex County Department of Welfare ("ECDW"), which administers those State programs, terminated T.B.'s benefits. It did so because she had reached the maximum time limit and was ineligible for an exemption or an extension. T.B. contested the decision, arguing that she was still entitled to receive benefits under applicable statutes and regulations.

STATE OF NEW JERSEY v. DEBRA A. AQUILINA

PER CURIAM Defendant Debra Aquilina appeals from her May 1, 2009 conviction on charges of first-degree murder, N.J.S.A. 2C:11-3 (count one); first-degree conspiracy to commit murder, N.J.S.A. 2C:11-3/2C:5-2 (count three); third-degree possession of cocaine and heroin, respectively, N.J.S.A. 2C:35-10(a)(1) (counts five and six); and third-degree hindering prosecution, N.J.S.A. 2C:29-3(b)(1) (count seven).1 After appropriate merger, the judge imposed a sentence of life imprisonment on count one, subject to the eighty-five percent parole ineligibility term required by N.J.S.A. 2C:43-7.2, concurrent to five-year terms of imprisonment on counts five and six. The judge imposed a consecutive five-year term of imprisonment on count seven.

DIVISION OF YOUTH AND FAMILY SERVICES v. L.W and S.W. and R.C IN THE MATTER OF K.W Minor-

PER CURIAM The law guardian appeals from the Family Part order issued by Judge Verna Leath dismissing a Title 30 complaint against L.W., the biological mother of K.W., born September 1, 1988. The law guardian sought a conditional dismissal of the complaint. Judge Leath, who, before dismissing the complaint, had presided over the proceedings for three years, determined there was no basis under Title 30 to impose upon the Division of Youth and Family Services (Division) the obligation to continuously supervise L.W. indefinitely when K.W. was no longer at risk. In addition, because she determined there was no jurisdictional basis to order a conditional dismissal, the judge found there was no reason to postpone the dismissal of the complaint pending resolution of the law guardian's motion filed three days before the dismissal hearing. We affirm. L.W. is the mother of ten children, Natalie, Stacey, Kelly, Preston, Shannon, K.W., Sean, Jerry, Bryan, and Nathan,1 whose ages ranged from seven months to twenty-two years old at the time the court dismissed the Title 30 complaint in October 2010. K.W., who is the subject of this appeal, suffers from Partial Tetrasomy 15Q Deletion, a rare chromosomal abnormality that causes multiple medical and developmental issues. He is a non-verbal child who communicates through a combination of hand gestures and limited vocalization. His medical issues include scoliosis, partial hearing loss and difficulty reaching and maintaining a healthy weight.

IN THE MATTER OF DISCIPLINARY ACTION AGAINST ROBERT RANDOLPH SERGEANT/ASSISTANT DISTRICT PAROLE SUPERVISOR

PER CURIAM Robert Randolph (Randolph) appeals an order of the trial court dismissing his complaint with prejudice. For reasons which follow, we vacate the trial court's order and remand with instructions to dismiss the complaint without prejudice.

STATE OF NEW JERSEY IN THE INTEREST OF B.C. a Juvenile

PER CURIAM On September 7, 1995, when B.C. was eleven years old, he was charged with juvenile delinquency for acts which, if committed by an adult, would constitute aggravated sexual assault, N.J.S.A. 2C:14-2(1) (count one); two counts of simple assault, N.J.S.A. 2C:12-1(a)(1) (counts two and three); and

STATE OF NEW JERSEY IN THE INTEREST OF S.R.W. A Juvenile

PER CURIAM Appellant S.R.W., a juvenile, appeals the Family Part's adjudication of delinquency for engaging in conduct that, if committed by an adult, would constitute third-degree receipt of stolen property. N.J.S.A. 2C:20-7a. The Family Part judge imposed upon appellant a twenty-four-month term at the Training School for Boys, plus applicable fees and penalties. We affirm.

ERIC BRAM AND COMPANY v. KENT PLAZA ASSOCIATES

PER CURIAM This appeal involves a commercial real estate broker's commission for a shopping center lease originally procured in 1988. Plaintiff Eric Bram and Company (EB&C) sued Kent Plaza Associates (Kent), the current owner of a shopping center located in Howell, for refusing to pay a commission triggered by events two decades later. The Law Division granted summary judgment to EB&C for the $64,136.96 commission plus a contractually-reallocated attorney's fee of $21,378.98. We affirm the judgment awarding the commission, but reverse and remand the attorney's fee award for reconsideration.

OF YOUTH AND FAMILY SERVICES v. L.C and A.C IN THE MATTER OF B.C and S.C MINORS

PER CURIAM Defendant L.C. appeals from a December 31, 2009 order to show cause for investigation and a January 12, 2010 order on the return date that fixed physical custody of her two children with her husband, A.C., allowed L.C. only supervised visitation and ordered her to undergo psychological evaluations. On May 4, 2010, the New Jersey Division of Youth And Family Services (Division) filed a verified complaint under a different docket number seeking the care and supervision of the two children with restraints regarding contact between L.C. and her children. The judge granted the new order to show cause and dismissed the investigation complaint.

BLUE GULF INDUSTRIAL SUPPLY CO v. P.J.T. TRANSPORT, INC

PER CURIAM In this appeal, plaintiff, Blue Gulf Industrial Supply Company, appeals from the trial court order granting defendant, P.J.T. Transport, Inc., summary judgment and dismissing plaintiff's complaint arising out of a commercial shipping transaction. In dismissing the complaint, Judge Hector Velazquez, in an oral opinion, concluded plaintiff's complaint was barred by the statute of limitations. We affirm. In August 2006, plaintiff contracted with Mueller Streamline Company ("Mueller") to purchase goods which plaintiff intended to be shipped to Nigeria. The goods originated at Mueller's location in Ansonia, Connecticut, from which they were shipped to defendant's facility in South Kearny, New Jersey, where they were stored temporarily. From there, the goods were transported to Port Newark and then to Nigeria.

CLAUDIO GONZALES v. NEW JERSEY DEPARTMENT OF CORRECTIONS

PER CURIAM Claudio Gonzales was convicted of aggravated sexual assault of a victim under thirteen years of age and is currently an inmate at the Adult Diagnositc and Treatment Center (ADTC). He appeals from the final decision of the Department of Corrections (DOC) that he committed prohibited act .013, unauthorized physical contact with any person, N.J.A.C. 10A:4-4.1(a).1 Gonzales argues that there was insufficient evidence to support this finding and that procedural deficiencies deprived him of his due process rights. We affirm. Our review of the DOC's decision is limited. We will only reverse when the agency's decision is arbitrary, capricious or unreasonable, or unsupported by substantial credible evidence in the record as a whole. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999) (court must uphold agency's findings, even if it would have reached a different result, so long as sufficient credible evidence in the record exists to support the agency's conclusions).

IN THE MATTER OF WALDEMER STRYZ HUDSON COUNTY DEPARTMENT OF CORRECTIONS

PER CURIAM Waldemer Stryz, a Hudson County Department of Corrections Officer, appeals from a final determination of the Civil Service Commission (Commission) sustaining the charges of insubordination, conduct unbecoming a public employee, neglect of duty, failure to perform duties and other sufficient cause in failing to ensure the computer was used properly during his shift, and imposing a sixty-day suspension. He argues the final decision of the Commission was not based on substantial and credible evidence, did not adhere to the forty-five-day statutory time frame, and was improperly remanded to the Office of Administrative Law (OAL) for a second hearing. He also challenges his enhanced penalty as excessive. We are not satisfied the charges were based upon the evidence and reverse.

STATE OF NEW JERSEY v. LAMAR B. BURNO

PER CURIAM Defendant Lamar Burno appeals from the decision of the Law Division judge denying his appeal of the State's rejection of his application for entry into the Pretrial Intervention program, Rule 3:28, following his indictment for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. Following the denial of his appeal, defendant pled guilty to the charge and, pursuant to a plea agreement, was sentenced to a two-year probationary term with minimal supervision and the condition that he forfeit his handgun and expired police badges. On appeal, defendant argues that the State's rejection of his PTI application was arbitrary and constituted a gross abuse of discretion. We affirm.

February 2, 2012

Willie C. Rowe v. Mazel Thirty, LLC

Long, J., In this appeal, the Court considers whether summary judgment properly was granted to a landowner on whose private premises a police officer, engaged in a safe-streets initiative, fell and was injured.

February 1, 2012

State v. Danny Lazo

RABNER, C.J., writing for a majority of the Court. In this appeal, the Court considers whether it was proper for a police officer to testify at trial about how and why he assembled a photo array.

January 25, 2012

Bobbie Humphries v. Powder Mill Shopping Plaza

Hoens, J., writing for a unanimous Court. In this appeal, the Court considers whether the framework adopted in Rendine v. Pantzer, 141 N.J. 292 (1995), for evaluating attorneysâ fee awards made pursuant to state statutory fee-shifting provisions, including the continued validity of contingency enhancements, has been altered by the United States Supreme Courtâs decision in Perdue v. Kenny A., __ U.S. __, 130 S. Ct. 1662 (2010).

May L. Walker v. Carmelo Guiffre

January 24, 2012

Statev. Roy Friedman

WEFING, P.J.A.D. (temporarily assigned), writing for a unanimous Court. In this appeal, the Court considers whether a defendant who has been sentenced to consecutive terms under the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), must serve the periods of post-release parole supervision that are part of a NERA sentence consecutively or concurrently; and whether State v. Hess, 207 N.J. 123 (2011), requires invalidation of a portion of a plea bargain under which defendant agreed that his attorney would not argue for concurrent sentences, as opposed to the consecutive sentences to

January 23, 2012

State v. James J. Mauti

LONG, J., writing for a unanimous Court. The Court considers whether the privilege that bars the spouse of an accused from testifying in the criminal action can be pierced by application of the three-part test set forth in In re Kozlov, 79 N.J. 232 (1979).

January 19, 2012

Borough of Sayreville v. 35 Club, L.L.C.

HOENS, J., writing for a majority of the Court. The question in this appeal is whether a court may consider, as part of its determination of an as-applied challenge to the Stateâs statute limiting the places where sexually-oriented businesses may operate, the availability of alternative channels of communication that are located in another state.