Criminal Law Library Blog
These News Briefs and Decision Summaries are from the the New Jersey State Bar Association. They are an exclusive benefit of the Association in partnership with the New Jersey Law Journal. A subscription may be necessary to access the full text of some of the items listed:
NEWS BRIEFS:
Will 2025 Bring a Change to Lawyers’ Mandatory Pro Bono Duties Under ‘Madden’?
New Jersey legislators are contemplating big changes to the system of lawyers’ mandatory pro bono assignments, but a $19.5 million price tag could hold up adoption of the measure.
Ethics/Diversity CLE Credits Available 24/7 with NJICLE
Need ethics and diversity credits before tomorrow’s MCLE deadline? NJICLE offers dozens of compelling on-demand seminars on a wide range of topics. Stream NJICLE’s programs 24/7 to earn the five ethics and diversity credits you need. View the seminar options here.
Pardoning Jan. 6 Defendants May Send Bad Message About Insurrection, Rule of Law
H.L.A. Hart is widely acknowledged as the most important writer and thinker of the 20th century in the discipline of Anglo-American legal philosophy. His debates with Harvard’s Lon Fuller, author of the Case of the Speluncean Explorers, and his later debates with his former student, Ronald Dworkin, on the nature and function of law in our legal system, changed the way most scholars approach modern legal problems.
2025 Family Law Symposium is the First Can’t-Miss Event of the Year
Join nearly four dozen judges and legal experts at this premier family law event on Jan. 25 in New Brunswick. This is the opportunity to learn about how family law intersects with other practice areas, like estate planning, immigration, bankruptcy, real estate and LGBTQ+ matters. Find out everything you need to represent clients effectively, plus get up to date on the top 10 reported and unreported cases of 2024. Register today and earn up to 7.3 CLE credits.
Looming Clash Over Abortion Pills Shows Overturning ‘Roe v. Wade’ Settled Nothing
It has happened, just as we anticipated when the State of Texas adopted one of the most stringent anti-abortion laws in the country. The Attorney General of that state has filed a lawsuit accusing a New York doctor of prescribing and sending the Federal Drug Administration approved drugs, mifepristone and misoprostol to a Texas resident in violation of Texas state law. This aggressive legal action was inevitable, especially after the Supreme Court overturned Roe v. Wade.
DECISION SUMMARIES:
Click on any decision below to get the full opinion
from the New Jersey Judiciary – December 27, 2024
APPROVED FOR PUBLICATION
There are no decisions approved for publication.
NOT APPROVED FOR PUBLICATION
CRIMINAL LAW
State v. Gittens, Appellate Division, Per Curiam. Defendant appealed the denial of his application for post-conviction relief without an evidentiary hearing. Defendant was charged in a 96-count indictment for a series of burglaries and related offenses committed in 2011 and 2012. After defendant was arrested, he contacted a detective and cooperated in the return of the stolen property. He was convicted by a jury in 2015 on several counts and entered an open plea to 20 additional charges. Sentencing court rejected mitigating factor 12 and he was sentenced to an aggregate term of 17 years, which was affirmed on direct appeal. The PCR petition alleged ineffective assistance of appellate counsel for inadequately addressing the sentencing court’s failure to consider his post-arrest cooperation with law enforcement as a mitigating factor. PCR court denied the petition because the sentencing challenge was addressed on direct appeal. The mitigating factor twelve claim merely reprised defendant’s excessive sentence claims, which were not proper for PCR and appellate counsel was “thorough and more than adequate.” Defendant admitted that direct appeal counsel raised the argument that the court erred in rejecting mitigating factor twelve, but argued that counsel did not adequately present the issue or the details of defendant’s cooperation. Court noted PCR was not an appropriate vehicle to raise or rehash excessive sentencing challenges and found defendant’s claims were essentially a rehash of issues already addressed on direct appeal and that defendant failed to demonstrate a prima facie case of ineffective assistance of appellate counsel.
EMPLOYMENT LITIGATION
Lee v. Bd. of Tr., Police & Fireman’s Ret. Sys., Appellate Division, Judge Walcott-Henderson. Plaintiff former police officer appealed the denial of his application for deferred retirement benefits. Plaintiff was terminated after pleading guilty to petty disorderly conduct related to accessing a confidential database for personal reasons. Plaintiff applied for ordinary disability retirement benefits and listed kidney disease, osteomyelitis, an amputated toe, and a fractured wrist as disabilities. Board found plaintiff ineligible for ordinary disability retirement benefits because he did not leave employment as a result of a disability. Plaintiff submitted an application for deferred retirement with an effective retirement date of January 1, 2024. Board denied the application, citing his removal for cause due to misconduct. ALJ found plaintiff was barred from receiving deferred retirement benefits and his arguments, pertaining to his underlying criminal charge, the Forfeiture Order to which he consented, and the Board’s denial of his ordinary disability retirement benefits, were “misplaced and unpersuasive” and beyond the jurisdiction of the tribunal. ALJ rejected plaintiff’s argument that the Board erred in not conducting an analysis pursuant to Uricoli v. Bd. of Tr., 91 N.J. 62. Plaintiff argued his offense was not one of the enumerated offenses identified in the statute, Board failed to apply the Uricoli factors and his criminal charge should not have resulted in the forfeiture of his public pension benefits under N.J.S.A. 43:16A-11.2. Court affirmed. Court noted the multi-factor balancing test of Uricoli was inapplicable because N.J.S.A. 43:16A-11.2 explicitly stated that when an employee was dismissed for cause or charges of misconduct or delinquency, the employee may not elect to receive deferred retirement benefits. The plain language of the statute left no room for discretion by the Board.
EMPLOYMENT LITIGATION
Asri v. Bd. of Review, Dep’t of Labor, Appellate Division, Per Curiam. Claimant appealed the decision finding him ineligible for Pandemic Unemployment Assistance under the Coronavirus Aid, Relief, and Economic SecurityAct. Claimant filed for PUA benefits on May 24, 2020, and received benefits until August 2021. In November 2022, the Deputy Director of Unemployment Insurance notified claimant that he was ineligible for benefits as of December 2020, due to a lack of proof of attachment to the labor market. Claimant testified he had not worked since early 2018 and had returned to school in 2020 and remained in school during the pandemic. He received a job offer in 2019 or 2020 but could not commence work due to his inability to afford the required computer. His request to work part time while trying to obtain the computer was denied. Appeal Tribunal found claimant was “not eligible for PUA benefits from [December 27, 2020] through September 4, 2021] as he was unable to establish labor market attachment and his unemployment was not due to one of the COVID-19[-]related reasons identified in Section 2102(a)(3)(A) of the CARES Act.” Claimant argued he was eligible for PUA benefits because he received a job offer. Court affirmed the Board’s determination finding the record supported the Board’s conclusion that claimant’s unemployment—including after his job offer—did not result from one of the COVID-19-related reasons enumerated under the CARES Act.
EMPLOYMENT LITIGATION
Kress v. Bd. of Tr. of the Teachers’ Pension & Annuity Fund, Appellate Division, Per Curiam. Petitioner appealed Board’s rejection of her retroactive salary increases as creditable compensation for pension calculation purposes. Petitioner, a teacher, filed a wage discrimination lawsuit alleging violations of the Diane B. Allen Equal Pay Act and the New Jersey Law Against Discrimination. She asserted she did not receive full credit for her prior work experience and did not receive the same annual pay increases received by her male colleagues. A settlement agreement allocated $100,000 to her final three years of employment, and provided retroactive salary increases for the years 2018 through 2021 if she resigned. Board approved her retirement based on a final salary of $105,003.66, which excluded the retroactive increase. Board argued the increase called for in the settlement agreement was extra compensation not pensionable under N.J.A.C. 17:3-4.1 and denied her request for a hearing. Petitioner argued that the Board’s decision violated legislative policies and Board improperly rejected her hearing request. Court noted that under the statute that governed the Teachers’ Pension and Annuity Fund, salary adjustments that were granted primarily in anticipation of retirement were not included as part of a member’s “compensation” when calculating the member’s pension. Court affirmed finding Board’s decision was supported by substantial evidence. Court noted the retroactive increases were not required by statute and were allocated only to the final years of employment, aligning with the years used to calculate her pension benefits. Board could reasonably conclude the retroactive salary increases were given primarily in anticipation of retirement and were extra compensation as defined in N.J.A.C. 17:3-4.1(a)(1). Court was not persuaded by petitioner’s reliance on In re Snellbaker, 414 N.J. Super. 26. Petitioner’s retroactive salary increases, unlike those in Snellbaker, were not required by statute and were not applied to all the years in which she claimed she was underpaid. No hearing was required because the relevant facts regarding the settlement and her retroactive salary adjustments were not disputed.
ENVIRONMENTAL LAW
In the Matter of Flood Hazard Area Verification & Flood Hazard Area Individual Permit, Appellate Division, Per Curiam. Appellant, The Watershed Institute, challenged the issuance of a Flood Hazard Area Verification and a Flood Hazard Area Individual Permit for a warehouse development project. Company proposed a large warehouse facility that required flood hazard approvals. At the time company’s application was pending in 2021, DEP released studies that predicted higher rainfall levels in New Jersey beyond earlier estimates. DEP approved the Flood Hazard Area Verification and Flood Hazard Area Individual Permit and appellant argued DEP failed to adequately ensure the project would be consistent with a local areawide Water Quality Management Plan in violation of the Water Quality Planning Act; erroneously permitted the construction of a culvert, rather than a bridge, at a proposed stream crossing, in violation of the Flood Hazard Area Control Act and the Flood Hazard Area Control Act Rules and failed to take into account new data predicting increased levels of precipitation in New Jersey, in violation of the FHACA and other relevant law; and failed to delineate floodways on the site in violation of the FHACA. Court found DEP’s final agency decisions did not explain why it deemed company’s application satisfied the infeasibility requirement of N.J.A.C. 7:13- 1(c)(2)(ii). Court was not persuaded by company’s claim that separate provisions within N.J.A.C.7:13-12.7 addressing various requirements for bridges and culverts eliminated an applicant’s obligation under N.J.A.C. 7:13-11(c)(2)(ii) to establish that a bridge at a waterway crossing was not feasible. Court rejected the assertion that projects meeting the criteria for culverts under N.J.A.C. 7:13-12.7 inherently or automatically qualify under the feasibility analysis mandated by N.J.A.C. 7:13-11.1(c)(2)(ii). Court remanded to enable the agency to reconsider an amplified application that explicitly addressed the bridge infeasibility requirement of N.J.A.C. 7:13-11(c)(2)(ii). Court also found DEP properly approved the permit in this case without incorporating the yet-to-be-applicable rainfall studies’ findings.