14-1-1654 State v. Maloney, Sup. Ct. (Rodriguez, P.J.A.D., temporarily assigned) (34 pp., including dissent by Albin, J.) The trial court did not err by failing to sua sponte instruct the jury on accomplice liability and by rejecting defendant’s request to charge the jury on the asserted lesser-included offenses of attempted theft by receiving stolen property and conspiracy to receive stolen property. [Decided Oct. 16, 2013.]
14-2-1653 State v. Granskie, App. Div. (Reisner, P.J.A.D.) (21 pp.) We held that defendant had the right to present expert testimony concerning his heroin addiction and withdrawal symptoms and the potential impact of his physical and psychological condition on the reliability of his confession. The expert may explain how heroin withdrawal could have affected the defendant during the police interrogation, but may not opine that the defendant’s confession was unreliable or was false, because such testimony would usurp the jury’s role. Although the expert may rely in part on hearsay to explain his opinions, N.J.R.E. 703, there must be some legally competent evidence that defendant was, in fact, suffering from withdrawal at the time he made the confession. [Decided Oct. 16, 2013.]
14-2-xxxx State v. Henderson, App. Div. (Fisher, P.J.A.D.) (22 pp.) In its landmark decision in this case, State v. Henderson, 208 N.J. 208 (2011), the Supreme Court remanded to the trial court for a new Wade hearing. Applying the court’s new state constitutional framework for such matters, the trial court denied suppression of the out-of-court eyewitness identification evidence used to convict defendant. On appeal, defendant argued, among other things, that the new framework implicitly imposed on the prosecution the burden of proving reliability by “clear and convincing evidence.” In light of the language of the Supreme Court’s opinion that, once a defendant provides evidence of suggestiveness the prosecution must “offer proof to show that the proffered eyewitness identification is reliable,” id. at 289, the court rejected this argument, viewing the prosecution’s burden as little different and no more onerous than the “burden of producing evidence” described in N.J.R.E. 101(b)(2).Affirmed. [Decided Oct. 17, 2013.]
20-2-xxxx New Jersey Division of Youth and Family Services v. J.S., App. Div. (Sabatino, J.A.D.) (32 pp.) Defendant, a biological father, appeals from the Family Part’s judgment terminating his parental rights as to his minor child following a multiday trial. Among other things, defendant argues that the trial court erred in upholding a decision of the Division of Youth and Family Services to “rule out” two cousins who had expressed interest in serving as alternative caregivers for the child. Affirming the final judgment, we reject defendant’s argument that the division lacks the authority to rule out relatives under N.J.S.A. 30:4C-12.1 based on considerations of a child’s best interests. Instead, we hold that the applicable statutory provisions and a related regulation, N.J.A.C. 10:120A-3.1, allow the division to rule out a relative on such best-interests grounds, regardless of the relative’s willingness or ability to care for a child. However, the division’s rule-out authority is always subject to the Family Part’s ultimate assessment of that child’s best interests. We also uphold the validity of the language in N.J.A.C. 10:120A-3.1(b) prohibiting a relative who the division rules out on best-interests grounds from pursuing an administrative appeal of that agency determination. However, we urge the division to act with reasonable diligence in notifying a potential caretaker that he or she has been ruled out, once the investigation of that person has been completed. [Decided Oct. 17, 2013.]
27-2-xxxx Soliman v. The Kushner Companies Inc., App. Div. (Fuentes, P.J.A.D.) (36 pp.) This appeal involves four consolidated lawsuits brought by employees of tenants and members of their families, including minors, against the landlord and managers of this commercial office building, as well as a number of other companies responsible for installing and maintaining video monitoring and recording equipment intentionally concealed inside smoke detectors in four public bathrooms, two male and two female. Plaintiffs allege intentional and negligent infliction of emotional distress, common-law invasion of privacy, and invasion of privacy under N.J.S.A. 2C:58D-1(b). They seek common-law compensatory damages, punitive damages under the Punitive Damages Act, and statutory damages under N.J.S.A. 2C:58D-1(c). The Law Division granted defendants’ motions for summary judgment and dismissed plaintiffs’ cause of action as a matter of law. We reverse the Law Division’s order dismissing the counts in their complaints grounded on invasion of privacy. As a threshold issue, plaintiffs must show defendants’ actions to clandestinely monitor their activities in a gender-restricted bathroom is subject to liability because it is the type of intrusion that a reasonable person would find to be highly offensive. Consistent with the approach endorsed by the Supreme Court in Rumbauskas v. Cantor, 138 N.J. 173 (1995), we also hold that a plaintiff in a cause of action predicated on the tort of invasion of privacy, grounded in the subcategory of “invasion of intrusion on the plaintiff’s physical solitude or seclusion,” which includes the characteristics of unconsented prying, may recover compensatory damages for “personal hardships,” similar in kind and scope to those codified in N.J.S.A. 10:5-3, if plaintiffs can show a causal link between defendants’ intrusion and these “personal hardships.” [Decided Oct. 17, 2013.]
39-2-1652 Greene v. AIG Casualty Company, App. Div. (Accurso, J.A.D.) (15 pp.) The question presented by this appeal is whether respondent AIG Casualty Company, which paid workers’ compensation benefits to petitioner, Kelly Greene, is entitled to a lien against her settlement with a third-party tortfeasor pursuant to § 40 of the Workers’ Compensation Act, N.J.S.A. 34:15-40, even though her injury was ultimately noncompensable. Nothing in either § 15 or § 40 conditions reimbursement of the claim from a third-party settlement on whether the benefits the employer paid were owed in the first place. Read in conjunction, § 40 and our collateral-source statute, N.J.S.A. 2A:15-97, plainly require that a third-party tortfeasor be held to the full extent of its liability for a workplace injury, that the employer be repaid for benefits paid to the injured worker pursuant to the act without regard to the compensability of the claim, and that the employee not obtain a double recovery. AIG is entitled to its lien. [Decided Oct. 16, 2013.]
10-7-1596 Disability Rights New Jersey Inc. v. Velez, U.S. Dist. Ct. (Debevoise, S.U.S.D.J.) (55 pp.) In this challenge to New Jersey’s policy regarding the involuntary administration of psychotropic drugs in nonemergency circumstances to patients at the state’s four psychiatric hospitals, codified in Administrative Bulletin 5:04B, the court holds that A.B. 5:04B does not violate substantive and procedural due process rights of the class at large because the forced administration of psychotropic medication does not require a right to a judicial hearing and counsel. However, A.B. 5:04B violates the substantive and procedural due process rights of CEPP status patients because they have been determined to no longer pose a danger to themselves or others and there is no legitimate government objective in their continued forced medication, and such state action is arbitrary, conscience-shocking and oppressive in a constitutional sense. To the extent that A.B. 5:04B does not violate procedural and due process rights, it is not discriminatory under the Americans with Disabilities Act or the Rehabilitation Act because its application is within the ambit of safety concerns and any differential treatment is based on dangerousness not disability. However, the application of A.B. 5:04B to CEPP status patients is discriminatory because their dangerousness is no longer at issue. [Filed Sept. 27, 2013.]
15-8-1597 Simon v. FIA Card Services, Third Cir. (Rosenthal, U.S.D.J. sitting by designation) (44 pp.) Plaintiffs, debtors in a Chapter 7 bankruptcy proceeding, filed this action asserting violations of the Fair Debt Collection Practices Act against a creditor and its law firm arising out of a letter sent by the firm to each debtor and their bankruptcy attorney advising that the creditor was contemplating filing an adversary proceeding but would not if plaintiffs were willing to stipulate that the debt was nondischargeable or would agree to pay a reduced amount to settle the debt. Attached to the letter was a notice of a Rule 2004 examination and a subpoena. The court holds that the letter was a communication by a debt collector under the act, despite the fact that it did not specifically request payment; the failure to specify the means by which the Rule 2004 examination would be recorded did not violate the act; the issuance of a subpoena from the District of New Jersey for an examination to take place in New York, or another agreed-on location, did not violate the act; and that an FDCPA claim can arise from the debt collector’s communication to the debtor and such a claim is not precluded by the bankruptcy code and rules unless there is a direct conflict between the code and rules and the FDCPA, and here, there is no conflict regarding the claimed violations of § 1692e(5) and (13) for failure to send the subpoena directly to plaintiffs and failure to include the text of Civil Rule 45 but there is a conflict that precludes the claimed violation of § 1692(11) for failure to include in the letters a mini- Miranda warning. [Filed Oct. 7, 2013.]