This Week’s Published Opinions

On Monday, January 31, I have my first in-person appellate argument since the COVID-19 pandemic began. Preparation for that, and other matters, made the current week go by all too fast. Here are summaries of the published opinions that the Supreme Court and Appellate Division issued this week:

State v. Nyema, ___ N.J. ___ (2022). This opinion by Justice Pierre-Louis, for a unanimous Supreme Court, actually entailed two cases, the other being State v. Myers. The two defendants were riding in a car with a co-defendant when the police stopped the vehicle. An armed robbery of a 7-Eleven convenience store had just occurred, and a police dispatch about the robbery described the suspects as “two Black males, one with a handgun.” A police officer illuminated passing cars with his spotlight, allowed a car that contained a man and a woman to pass, and then stopped the vehicle in which the three defendants were riding. The officer said “[t]he description of the suspects was two Black males so at that point I decided to issue a motor vehicle stop on the second vehicle.” Officers searched the car and found a handgun, dark clothing (the robbers were reported to have worn dark clothing), and cash in the same amount that was reported stolen. Defendants moved to suppress the evidence, achieving only partial success. In one case, the Appellate Division affirmed, but in the other, the Appellate Division held that the stop was not based on reasonable and articulable suspicion. The Supreme Court granted review and held that there was no reasonable and articulable suspicion. “The only information the officer possessed at the time of the stop was the race and sex of the suspects,
with no further descriptors. That information, which effectively placed every single Black male in the area under the veil of suspicion, was insufficient to justify the stop of the vehicle and therefore does not withstand constitutional scrutiny.”

State v. Rochat, ___ N.J. Super. ___ (app. Div. 2022). Judge Geiger wrote this 88-page opinion. The panel reversed defendant’s murder conviction, agreeing with defendant’s contention that certain DNA evidence should not have been admitted into evidence. “The disputed DNA evidence was obtained through a technique known as low copy number (LCN) DNA testing performed by the Office of the Chief Medical Examiner of the City of New York (OCME). One of the samples was analyzed by OCME using its Forensic Statistical Tool (FST) software program.” The Appellate Division held that neither LCN DNA testing nor the FST are generally accepted in the scientific community. Thus, the evidence did not pass the test of Frey v. United States, 293 F. 1013 (D.C. Cir. 1923), which still applies in criminal cases in New Jersey.

Underwood Properties, LLC v. City of Hackensack, ___ N.J. Super. ___ (App. Div. 2022). This was an Open Public Records Act appeal in which Judge Mawla wrote the Appellate Division’s opinion. The panel affirmed on both an appeal and a cross-appeal as to plaintiff’s standing, a privilege issue, and the award of attorneys’ fees to plaintiff’s counsel.

Trenton Renewable Power, LLC v. Denali Water Solutions, LLC, ___ N.J. Super. ___ (App. Div. 2022). This opinion by Judge Messano involved a ruling on a motion to quash a discovery subpoena that defendant issued to a third party. The trial court had before it not only that motion but a motion to quash by plaintiff as well. The Appellate Division reversed the ruling of the trial court that had applied the same test regarding “undue burden and expense” to the third party here as to a party in the case. “In doing so, he failed to consider the distinction between the burden plaintiff carried in opposing Denali’s broad discovery demand, and the qualitatively different burden imposed on [the third party]. After all, plaintiff commenced the litigation, and Denali was entitled to the full force of our liberal discovery rules in obtaining information from its adversary; not so with respect to [the third party].” Judge Messano relied heavily on analogous federal authority regarding subpoenas to third parties, and he concluded the opinion by stating that the panel would “forward [its] opinion to the Civil Practice Committee for consideration of whether our Rules, like the Federal Rules, should provide for explicit recognition of discovery demands served on nonparties.”