DWI based on pot smell remanded for lower court to consider CREAMMA and N.J.S.A. 2C:35-10c State v Cooper

  

DWI based on pot smell remanded for lower court to consider CREAMMA and N.J.S.A. 2C:35-10c

State v Cooper

 

DOCKET NO. A-1727-23

State v. Cooper

Superior Court of New Jersey, Appellate Division

December 9, 2024, Submitted; December 19, 2024, Decided

DOCKET NO. A-1727-23

STATE OF NEW JERSEY, Plaintiff-Respondent, v. JAMIE COOPER, Defendant-Appellant.

Notice: 

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION.

 [*1] On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Municipal Appeal No. 08-08-22.

Judges: Before Judges Sabatino and Jacobs.

Opinion

PER CURIAM

Defendant Jamie Cooper seeks reversal of the Law Division's January 25, 2024 order upholding, de novo, an August 11, 2022 judgment of conviction of the Frankford Municipal Court finding him guilty of the following: (1) driving while intoxicated ("DWI"), N.J.S.A. 39:4-50; (2) refusal to submit to a chemical test, N.J.S.A. 39:4-50.4a; and (3) speeding, N.J.S.A. 39:4-98. Defendant conditionally pled guilty to the charges after the municipal judge denied his motion to suppress the State's evidence.

The charges stemmed from a motor vehicle stop by a State Trooper on the evening of April 28, 2021. The trooper had observed defendant's car traveling 64 mph in a 45-mph zone. Defendant was driving the car, which had three other passengers.

According to the trooper's testimony at a suppression hearing, he spoke to defendant [*2]  after stopping him and could smell "the odor of an alcoholic beverage, and as well, the odor of burnt marijuana emanating." The trooper testified that, because of the speeding, the odor of alcohol and marijuana, and to "establish impairment," he "took [defendant] out of the vehicle to conduct [field] sobriety tests." The trooper sought to perform the field sobriety tests because defendant "was showing signs" that led him to believe defendant was "possibly under the influence of either alcohol or a narcotic." Defendant refused to perform the field sobriety tests, stating that he would prefer to take the Breathalyzer. The trooper placed defendant under arrest. He issued summonses corresponding to the charges referenced above.

On cross-examination by defense counsel, the trooper stated that when defendant stepped out of the car, he smelled marijuana on defendant's breath, but acknowledged he could not smell defendant's breath before that time. Notably, the trooper denied smelling any alcohol on defendant's breath.

When asked to specify what he had considered at the scene to be indicia of defendant's intoxication, the trooper testified: "his demeanor, how he behaved, how he was speeding [*3]  . . . ." Explaining further what he meant by defendant's demeanor, the trooper stated that "[h]e was questioning everything . . . . [H]e was debating the speed, which obviously, it was not like he was only five miles over the speed limit. The speed limit was 45 [mph] and he was [going] 64 [mph]." The trooper found it significant that defendant stated, "he wasn't going that fast," a perception "which then makes me believe he is unaware of how fast he is traveling, which could be a sign of impairment, as well."

The trooper acknowledged that defendant was not stuttering, slurring his words, crying, or laughing inappropriately. He also acknowledged defendant's face was not red.

The municipal judge found the trooper's account of the events credible and concluded the trooper had reasonable suspicion to require defendant to submit to field sobriety tests. The judge further reasoned that when defendant refused to submit to the tests, that refusal furnished the trooper with probable cause to arrest him. Consequently, the municipal judge denied defendant's motion to suppress the fruits of the motor vehicle stop and search.

Defendant then entered into a conditional guilty plea to the speeding, DWI, [*4]  and refusal violation. He was sentenced to a one-year driver's license suspension, forty-eight hours in the Intoxicated Driver Resource Center ("IDRC") program, and various fines and penalties.

Defendant filed a municipal appeal in the Law Division, essentially arguing the same points for suppression that he had argued in the municipal court. On de novo review, the Law Division judge reached the same legal conclusions as the municipal judge and sustained the convictions.

In his brief on the present appeal, defendant argues:

POINT I

THE APPELLANT'S SUPPRESSION MOTION SHOULD HAVE BEEN GRANTED BEAUSE THERE WAS NO REASONABLE ARTICULABLE SUSPICION TO ASK THE APPELLANT TO PERFORM FIELD SOBRIETY TESTS, AND, THEREFORE, NO PROBABLE CAUSE TO ARREST HIM.

Before we address this issue, it is incumbent to raise a concern we have that appears to have been overlooked. About two months before this motor vehicle stop, the Legislature enacted the Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act ("CREAMMA"), N.J.S.A. 24:6I-31 to -56, "a sweeping law that largely decriminalizes the simple possession of cannabis in New Jersey." State v. Gomes, 253 N.J. 6, 11, 288 A.3d 825 (2023). The statute became effective on February 22, 2021. Among other things, CREAAMA declares that "the odor of cannabis or burnt cannabis" can no longer, "individually or [*5] collectively, constitute reasonable articulable suspicion of a crime." N.J.S.A. 2C:35-10c; see also State v. Cohen, 254 N.J. 308, 328, 296 A.3d 480 (2023) (acknowledging that, as the result of CREAMMA, "going forward, . . . cases involving the automobile exception and probable cause to search a vehicle based solely on the smell of marijuana will likely be few and far between" (emphasis added)).

Here, the trooper's justification for perceiving defendant's impairment and for requiring defendant to submit to field sobriety tests was based, at least in part, on his perception that defendant emitted the smell of marijuana. As we noted above, the trooper did not smell alcohol on defendant when he got out of the car in closer proximity.

Under the circumstances, we remand this matter to the Law Division to reconsider its analysis in light of CREAMMA and N.J.S.A. 2C:35-10c. The Law Division will have the discretion to invite supplemental briefing from the parties. We intimate no views on the appropriate outcome of the remand.

The remand shall be completed within forty-five days. Following the issuance of the Law Division's remand decision, the parties may respectively pursue renewed appellate review—defendant via an amended notice of appeal or the State via a motion for leave to appeal. [*6]  The Law Division will have the authority to consider whether any of the terms of defendant's sentence should be stayed in the interim. We do not retain jurisdiction.

 

STATE VS. STEPHANIE HAND

 STATE  VS. STEPHANIE HAND A-2580-22

• At issue is whether the holding in State v. Jackson, 243 N.J. 52 (2020), that the Sixth Amendment requires a defendant be permitted to cross-examine a cooperating codefendant with respect to their maximum sentencing exposure prior to their entry into a plea agreement, should be given full retroactive application.  The court concludes that Jackson does not apply to convictions for which direct appellate review was complete when the opinion in Jackson was issued. As a result, the court affirmed the denial of post-conviction relief to defendant, whose direct appeal of her convictions for three offenses arising out of a mortgage fraud scheme was completed approximately a month before the Supreme Court issued its opinion in Jackson.

STATE OF NEW JERSEY VS. STEVEN W. ITALIAN A-4009-22

 STATE OF NEW JERSEY VS. STEVEN W. ITALIAN

A-4009-22

• The court was asked to consider whether a defendant, serving sequentially several consecutive periods of driver's license suspensions imposed for various convictions including driving while under the influence (DWI) offenses, can be charged with violating N.J.S.A. 2C:40-26(b) for driving during the suspension period for a non-DWI-related offense while awaiting commencement of a court-imposed DWI license suspension.  The court determined because the effective date of defendant's most recent DWI-related conviction was delayed only due to other consecutively imposed accumulated sentences, defendant violated N.J.S.A. 2C:40-26(b) when he operated his vehicle prior to the conclusion of the suspension for his DWI offense.

  The court distinguished State v. Perry, 439 N.J. Super. 514 (App. Div. 2015).  It noted the Perry court determined N.J.S.A. 2C:40-26(b) "punishes those who drive while suspended for violations of the DWI . . . law . . . when they drive during the court-imposed period of suspension," and it was not intended to criminalize "driving during a period of administrative suspension" when driving privileges could have been restored but for the defendant's failure to complete the process for administrative restoration.  Id. at 531-32.  

  The court observed defendant was not driving during a period of administrative suspension after having completed his court-ordered suspension.  Rather, he had not yet completed his suspension term for the most recent of his four DWIs.  The court concluded it would be illogical for defendant to avoid a conviction for violating N.J.S.A. 2C:40-26(b), in light of defendant's four prior DWIs, merely because the suspension for his latest DWI had not yet commenced because he incurred multiple other intervening license suspensions.

           The court adopted the rationale of State v. Cuccurullo, 228 N.J. Super. 517, 520 (App. Div. 1998), holding in the context of applying the enhanced penalties under N.J.S.A. 39:3-40 for driving while suspended for DWI, that "[a] person is 'under suspension' from the time that the suspension is imposed even though the period of suspension may not begin until later."  Ibid.

L H v P H FRO reversed were an insufficient record for appeal court to...

24 :21-21 . Prohibited acts C.--Records and order forms of registered manufacturers and distributors--Penalties

24 :21-21 .  Prohibited acts C.--Records and order forms of registered manufacturers and distributors--Penalties
    a.  It shall be unlawful for any person:
    (1) Who is subject to the requirements of article 3 of this act to distribute or dispense a controlled dangerous substance in violation of section  14;
    (2) Who is a registrant, to manufacture, distribute, or dispense a controlled dangerous substance not authorized by his registration;
    (3) To omit, remove, alter, or obliterate a symbol, label or mark required by Federal or State law;
    (4) To refuse or fail to make, keep or furnish any record, notification, order form, statement, invoice or information required under this act;
    (5) To refuse, any entry into any premises or inspection authorized by this  act;  or,
    (6) Knowingly to keep or maintain any store, shop, warehouse, dwelling house, building, vehicle, boat, aircraft, or any place whatever, which is resorted to by persons using controlled dangerous substances in violation of this act for the purpose of using such substances, or which is used for the keeping or selling of the same in violation of this act.
    b.  Any person who violates this section shall be subject to a fine of not more than $25,000.00;  provided, that if the violation is prosecuted by an accusation or indictment which alleges that the violation was committed knowingly or intentionally, and the trier of fact specifically finds that the violation was committed knowingly or intentionally, such person is guilty of a high misdemeanor and shall be punished by imprisonment for not more than 3 years, or by a fine of not more than $25,000.00, or both.
    L.1970, c. 226, s. 21.

SUBJECT: Landlord Tenant - Promulgation of Certification of Lease and Registration Statement Form

SUBJECT: Landlord Tenant - Promulgation of Certification of Lease and Registration Statement Form

DATE: September 1, 2021

Directive #21-21, issued August 23, 2021, promulgated new landlord tenant forms consistent with the Court’s July 14, 2021 Orders and Administrative Determinations for use as of September 1, 2021. This Supplement promulgates a new Certification of Lease and Registration Statement form for use by landlords in connection with a case management conference.

As provided by the Court’s July 14, 2021 Order, landlords are required to file a copy of the lease (or, if the lease exceeds 10 pages, the relevant portions of the lease); the registration statement, if applicable; and a certification of the landlord’s lease and registration statement in a form to be promulgated by the Administrative Director. In addition, landlords shall submit a copy of the rent control statement if requested by the court. All required documents shall be filed five days before the case management conference.

Any questions related to this Supplement to Directive #21-21 or the attached form should be directed to the Civil Practice Division at (609) 815-2900 ext. 54900 or civilwebsites.mbx@njcourts.gov.

Attachment:
Certification of Lease and Registration Statement Form (CN 12842)

                

Page 1 of 2

SUPPLEMENT TO DIRECTIVE #21-21

[Questions or comments may be directed to (609) 815- 2900, ext. 54900]

Supplement to Directive #21-21 – Landlord Tenant – Certification of Lease and Registration Statement Form September 1, 2021
Page 2 of 2

cc: Chief Justice Stuart Rabner Civil Presiding Judges

Supervising Special Civil Part Judges Steven D. Bonville, Chief of Staff AOC Directors and Assistant Directors Clerks of Court

Special Assistants to the Administrative Director
Civil Division Managers and Assistant Division Managers (SCP) Melissa A. Czartoryski, Chief, Civil Practice
Bridget Dorney Chater, Civil Practice

Page 2 of 2

Name:
Attorney ID Number: Address:

Telephone Number: Email Address:

Plaintiff/ Landlord v.

Superior Court of New Jersey Law Division, Special Civil Part

Landlord-Tenant
County

Docket Number: LT-

Certification of Lease and Registration Statement

☐ Residential ☐ Commercial , (Esq.) of full age, being duly sworn according to law,

      

Defendant/ Tenant(s)
certify and say (select one option for each of the following):

 

1. I am: ☐ the plaintiff/landlord ☐ an attorney at law duly licensed to practice in the state of New Jersey in the above-captioned landlord tenant action.

2. The lease that is the subject of this action is: ☐ attached in full ☐ attached in pertinent part and the full lease document is in excess of 10 pages ☐ not the subject of a written agreement.

3. ☐ I have attached a copy of any registration statement for the residential rental property required by the Landlord Registration Act N.J.S.A. 46:8-27.
☐ The property is exempt from registration pursuant to N.J.S.A. 46:8-28.5(b).

I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.

Dated (Signature of Attorney/Self-Represented Landlord) (Printed Name of Attorney/Self-Represented Landlord)

  

Effective 09/01/2021, CN 12842

STATE OF NEW JERSEY VS. ANDREW HIGGINBOTHAM (

 Defendant appeals from the trial court's order denying his motion to dismiss an indictment, which charged him with fifteen counts of second-degree child endangerment, N.J.S.A. 2C:24-4(b)(4), (5)(a)(i), (5)(a)(ii); and one count of third-degree child endangerment, N.J.S.A. 2C:24-4(b)(5)(b)(iii).  These provisions were enacted in 2018 as part of the child erotica amendment to the endangerment statute.  L. 2017, c. 141 (the child erotica amendment).  Finding that the statute is both unconstitutionally vague and overbroad, the court reversed.

N.J.S.A. 2C:24-4(b)(4) makes it a second-degree crime to photograph or film a child in a sexually suggestive manner, which necessarily requires the viewing and possession of such material.  N.J.S.A. 2C:24-4(5)(a)(ii) makes it a second-degree crime to possess child erotica with intent to distribute it.  Finally, N.J.S.A. 2C:24-4(5)(b)(iii) makes it a third-degree crime to possess child erotica.  The amendment's expanded definition of child pornography, which includes child erotica (i.e., images that "portray a child in a sexually suggestive manner"), is at odds with New York v. Ferber, 458 U.S. 747 (1982); Osborne v. Ohio, 495 U.S. 103 (1990); and Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

The child erotica amendment is overbroad because it precludes the private possession of material the United States Supreme Court has said is protected by the First and Fourteenth Amendments.  Based on the amendment's definition of "portray a child in a sexually suggestive manner," any image of a child could appeal to sexual interests and thus be proscribed.  Therefore, the amendment is also vague because a person of ordinary intelligence would not understand the limits of permissible conduct.

State v. Kulgod Sentencing court could consider Twitter posts not admissible in a trial

State v. Kulgod Sentencing court could consider Twitter posts not admissible in a trial

       State appealed defendant's downgraded sentence for vehicular homicide. The Event Data Recorder in defendant's car showed he was traveling 86 miles per hour in a 45 miles per hour zone five seconds before impact. Car's anti-lock braking system activated two seconds before impact. Car was going over 52 miles per hour at impact. Defendant's car crossed the double yellow line and struck the front of victim's car, killing the driver. Jury found defendant guilty. Sentencing judge found aggravating factor nine, mitigating factors seven and nine and imposed the minimum five-year NERA term. Appellate court remanded for resentencing and ordered mitigating factor 14 be considered. State had recovered 11 of defendant's Twitter posts pursuant to a warrant and asked resentencing court to consider them. The posts bragged about defendant's "triple digit speed" and 4-wheel-drifts. 

       Sentencing court denied the motion because the posts had been ruled inadmissible at trial and applied aggravating factor nine, mitigating factors seven, nine and 14; downgraded the crime to a second-degree offense and imposed a four-year NERA sentence. Court vacated and remanded for a second resentencing, finding sentencing court abused its discretion in not considering the social media posts because they were not stale and admissibility at trial was not controlling. Additionally, sentencing judge's reasons for downgrading the offense were not sufficiently explained. Source https://www.law.com/njlawjournal/almID/1680635024NJA215121/

Oral agreement rejected as a Will In the Matter of the Estate of Wasowicz

Oral agreement rejected as a Will In the Matter of the Estate of Wasowicz

 

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

IN THE MATTER OF THE ESTATE OF VICTOR WASOWICZ,

Deceased.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-3620-21

Submitted October 23, 2023 – Decided November 21, 2023

Before Judges Marczyk and Vinci.

On appeal from the Superior Court of New Jersey, Chancery Division, Probate Part, Middlesex County, Docket No. 277224.

J. Lynn DeGillo, appellant pro se.

Respondent Estate of Victor Wasowicz has not filed a brief.

PER CURIAM
In this one-sided appeal, plaintiff pro se J. Lynn DeGillo appeals from the

trial court's June 7, 2022 order dismissing her complaint with prejudice. Based on our review of the record and the applicable legal principles, we affirm.

From 1971 to 1987, decedent Victor Wasowicz had a relationship with plaintiff's mother, though they never married. Plaintiff asserts she developed a close "father [] daughter" type relationship with decedent. In 1987—after decedent's relationship with plaintiff's mother ended—plaintiff unexpectedly bumped into decedent in the parking lot of a supermarket. Plaintiff alleges decedent told her he wanted her to have everything he owned in exchange for plaintiff promising she would take care of her mother and planting a tree in his memory. Plaintiff contends they "formed an oral agreement contract . . . akin to a will." However, there was no action taken to memorialize the contract because, according to plaintiff, decedent "was a practical man; a dutiful man; a man who detested lawyers and believed 'the system' to be greedy . . . ."

Decedent passed away intestate in 2022. Decedent's estate was to be divided between his two intestate heirs. However, plaintiff filed suit against the estate, arguing she was the only person entitled to decedent's estate because of their oral agreement in 1987—thirty-five years earlier. Plaintiff also objected to the division of the assets on the basis that she believed there to be no living descendants of decedent's brother.

At the hearing in June 2022, the trial court denied plaintiff's motion to transfer the matter to the Civil Part of the Law Division. The court noted, "this

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is a [p]robate matter . . . that would only be appropriate for the Probate Court . . . ." In an order dated June 7, 2022, the trial court dismissed plaintiff's complaint with prejudice because plaintiff lacked standing, as she was not biologically or legally related to decedent. The trial court also noted that even if plaintiff had standing, her contention there was an oral will is inconsistent with N.J.S.A. 3B:3-2(a)(1). Furthermore, because plaintiff lacked standing and was not an interested party concerning decedent's intestate estate, the court declined to address plaintiff's argument that the court-appointed attorney for the estate had incorrectly identified decedent's nieces as the intestate heirs. This appeal followed.

Plaintiff alleges the trial court erred in dismissing her complaint for lack of standing. She further argues the court misinterpreted her breach of contract claim and that the court failed to properly consider the standard for dismissal under Rule 4:6-2. More particularly, plaintiff relies on Ballard v. Schoenberg, 224 N.J. Super. 661 (App. Div. 1988), for the proposition she and decedent entered into an enforceable oral contract and that she was entitled to his intestate estate.1

1 Plaintiff also relies on In re Estate of Roccamonte, 174 N.J. 381 (2002). That matter involved a palimony case which is unrelated to the claims in this matter.

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A-3620-21

Our review of orders that dismiss claims for lack of standing is de novo. Courier-Post Newspaper v. Cnty. of Camden, 413 N.J. Super. 372, 381 (App. Div. 2010). We also review a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 4:6-2(e) de novo. Baskin v. P.C. Richard & Son, LLC, 246 N.J. 157, 171 (2021) (citing Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108 (2019)). "A reviewing court must examine 'the legal sufficiency of the facts alleged on the face of the complaint,' giving the plaintiff the benefit of 'every reasonable inference of fact.'" Ibid. (quoting Dimitrakopoulos, 237 N.J. at 107). Courts should search the complaint thoroughly "and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary." Ibid. (quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). But "if the complaint states no claim that supports relief, and discovery will not give rise to such a claim, the action should be dismissed." Ibid. (quoting Dimitrakopoulos, 237 N.J. at 107).

Plaintiff essentially advances two claims regarding the nature of the agreement with decedent. Her primary claim is that she had a contract with decedent—distinct from a will. She also argues, however, her agreement with

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decedent was "akin to a will." The trial court viewed plaintiff's argument regarding the contract as "a will in disguise." We address both contentions below.

To the extent plaintiff asserts her agreement with decedent was akin to a will or an oral will, we note under New Jersey law:

[A] will shall be: (1) in writing;

(2) signed by the testator or in the testator's name by some other individual in the testator's conscious presence and at the testator's direction; and

(3) signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will as described in paragraph (2) or the testator's acknowledgment of that signature or acknowledgment of the will.

[N.J.S.A. 3B:3-2(a)(1)-(3).]
The term "'will' . . . includes every species of testamentary act, which takes its effect from the mind of the testator, requiring a sound and disposing mind and capacity, and manifested by the proper execution of an instrument in writing . . . ." In re Est. of Sapery, 28 N.J. 599, 607 (1959) (emphasis added). Here, plaintiff argues decedent made an oral contract—akin to a will—to devise everything he owns to her upon his death. However, it is undisputed there is no

5

A-3620-21

evidence of any written will, let alone a document signed by decedent related to the purported promise. Accordingly, the trial court did not err in finding there was no valid claim asserted based on any oral will.

We now turn to plaintiff's primary argument that her agreement with decedent was not a will, but rather an oral contract. The trial court did not squarely address this argument. Although we agree with the court that plaintiff's complaint should have been dismissed, we do so, in part, for a different reason noted below.2

Plaintiff argues the trial court erred in dismissing her complaint for lack of standing based on her oral agreement with decedent in which he promised to give her everything he owned upon his death in return for her caring for her mother and planting a tree when decedent died. She contends this agreement was enforceable and is analogous to the oral contract in Ballard, 224 N.J. Super. 661. Plaintiff's reliance on Ballard, however, is misplaced. There, in an action for possession of a thirteen-acre farm, the defendant, a former farm worker for the decedent, alleged the decedent orally promised—in 1960—he would devise

2 An order will be affirmed on appeal if it is correct, even if we do not adopt the specific reasoning of the trial judge. State v. McLaughlin, 205 N.J. 185, 195 (2011) (citing Isko v. Plan. Bd. of the Twp. of Livingston, 51 N.J. 162, 175 (1968)).

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A-3620-21

the farm to her if she did the farm work and carried on the business of the farm during his lifetime. Id. at 663. Decedent died in 1984, and litigation ensued between the executor of the estate and the defendant. Ibid. We ultimately affirmed the trial court's judgment in favor of the defendant, enforcing the contract. Ibid. Importantly, however, we specifically noted, "[r]ecognizing that decedent's oral undertaking antedated by approximately eighteen years the effective date of N.J.S.A. 3B:1-4, plaintiff raises no issue of the applicability of that statute, which bars enforcement prospectively of oral undertakings to devise real property upon performance of services during the feeholder's lifetime." Id. at 664 n.1. That is, we were mindful that oral promises such as the one alleged by plaintiff in this appeal, after the effective date of N.J.S.A. 3B:1-4, would be subject to a different analysis.

N.J.S.A. 3B:1-4 requires proof of a writing regarding contracts made to devise property.3 Specifically, the statute provides:

A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after September 1, 1978, can be established only by (1) provisions of a will stating material provisions of the contract; (2) an express reference in a will to a contract and extrinsic evidence proving the terms of the

3 We further observe that N.J.S.A. 3B:1-4 applies to "testamentary disposition of real or personal property" pursuant to N.J.S.A. 3B:1-1.

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A-3620-21

contract; or (3) a writing signed by the decedent evidencing the contract. . . .

The oral promise plaintiff seeks to enforce here was made in 1987, subsequent to the effective date of N.J.S.A. 3B:1-4. Because decedent passed away without a will or any writing evidencing the alleged oral contract with plaintiff, we conclude plaintiff failed to satisfy the requirements of N.J.S.A. 3B:1-4. Because oral promises for testamentary disposition are unenforceable under N.J.S.A. 3B:1-4, the trial court did not err in dismissing plaintiff's complaint.

To the extent we have not specifically addressed any of plaintiff's remaining arguments, we conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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Court admits copy of Will and rejects forgery here IN THE MATTER OF THE ESTATE OF BEVERLY ANDREWS, Deceased.

 Court admits copy of Will and rejects forgery here

IN THE MATTER OF THE ESTATE OF BEVERLY ANDREWS, Deceased.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

IN THE MATTER OF THE ESTATE OF BEVERLY ANDREWS, Deceased.

Date of Death: January 26, 2021 __________________________

Argued October 31, 2023 – Decided November 29, 2023

Before Judges Smith and Perez Friscia.

On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. 321733.

Kevin R. Cropsey argued the cause for appellant Nicole Carter (Milvidskiy Law Group PC, attorneys; Kevin R. Cropsey, on the briefs).

Robert E. Margulies argued the cause for respondents Cherie Andrews Brown and Roshea Younger (Schumann Hanlon Margulies LLC, attorneys; Robert E. Margulies, on the brief).

PER CURIAM

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-1332-22

Defendant Nicole Carter1 appeals from a November 23, 2022 order admitting a copy of decedent Beverly Andrews's May 3, 2019 will to probate and dismissing defendant's counterclaim seeking the admission of a copy of a September 10, 2015 will in which she was a named beneficiary. Following our review of the arguments, the record, and applicable law, we affirm.

On appeal, Nicole contends the judge in her decision erred in failing to admit the proffered 2015 will to probate because: rejecting the opinion of handwriting expert, Dennis Ryan, was an abuse of discretion; admitting the 2019 will to probate was against the weight of the evidence; and addressing "which of the [w]ills . . . was . . . forge[d]" was required. Because we conclude the record sufficiently supports Chancery Judge Mary Costello's cogent written decision, we affirm.

I.
On January 26, 2021, Beverly passed away. Beverly had three siblings:

Leon Andrews and Rodez Andrews, who predeceased her, and Orlando Andrews, who survived her. Rodez had two daughters, Cherie Andrews Brown and Roshea Younger, Beverly's nieces. After Beverly passed away, Cherie and

1 For clarity, and intending no disrespect, we refer to the parties by their first names.

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A-1332-22

Roshea went to Beverly's house where Cherie located "a folder on [Beverly's] dresser" containing a copy of the 2019 will. The will named Cherie and Roshea as beneficiaries and co-executors. Orlando and Aminah Jackson were also named as beneficiaries, but both renunciated their inheritance rights.

On May 27, 2021, Cherie and Roshea filed a verified complaint seeking to probate a copy of the 2019 will and be appointed co-executors. On September 23, 2021, Nicole filed an answer and counterclaim seeking to probate a copy of the 2015 will and alleging the 2019 will "appear[ed] to be forged." The 2015 will named Natasha Carter and Nicole as beneficiaries, and Leon Peterson as the sole executor. An attorney prepared the 2015 will but did not prepare the 2019 will.

Following a one-day bench trial, on October 31, 2022, Judge Costello issued a written statement of reasons and order, granting plaintiffs' application to admit the copy of Beverly's 2019 will to probate. The judge found the credible evidence "clearly and convincingly established that Beverly . . . signed what she intended to be her Last Will and Testament" and plaintiffs had established that the "requirements of the statute [we]re satisfied and the 2019 [w]ill [wa]s . . . validly executed." Further, the judge dismissed defendant's

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counterclaim alleging the 2019 will was forged and seeking to probate a copy of Beverly's 2015 will as the claims were "ultimately . . . without merit."

II.
We begin with the established standard of review in an appeal from a

bench trial. "The scope of [our] review of a trial court's fact-finding function is limited." Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (quoting Cesare v. Cesare, 154 N.J. 394, 411 (1998)). We review final determinations made by the trial court "premised on the testimony of witnesses and written evidence at a bench trial, in accordance with a deferential standard." D'Agostino v. Maldonado, 216 N.J. 168, 182 (2013). "We are not to review the record from the point of view of how we would have decided the matter if we were the court of first instance." Sebring Assocs. v. Coyle, 347 N.J. Super. 414, 424 (App. Div. 2002). "We defer to the credibility determinations made by the trial court because the trial judge 'hears the case, sees and observes the witnesses, and hears them testify,' affording it 'a better perspective than a reviewing court in evaluating the veracity of a witness.'" Gnall v. Gnall, 222 N.J. 414, 428 (2015) (quoting Cesare, 154 N.J. at 412). "'Only when the trial court's conclusions are so "clearly mistaken" or "wide of the mark"' should we interfere to 'ensure that there is not a denial of justice.'" Ibid. (quoting N.J. Div.

     

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of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008)). We review de novo the "trial court's interpretation of the law and the legal consequences that flow from established facts." D'Agostino, 216 N.J. at 182-83 (quoting Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

A trial court has "broad discretion in determining the relevance of evidence." Verdicchio v. Ricca, 179 N.J. 1, 34 (2004). We do not overturn a trial court's evidentiary rulings "unless it can be shown that the trial court palpably abused its discretion." See ibid. (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)). "It [i]s within the trial court's wide discretion to accept or reject an expert's testimony, either in whole or in part." Sipko v. Koger, Inc., 251 N.J. 162, 188 (2022). The judge, as factfinder, "must weigh and evaluate the experts' opinions, including their credibility, to fulfill the judge's responsibility in reaching a reasoned, just and factually supported conclusion." Pansini Custom Design Assocs., LLC v. City of Ocean City, 407 N.J. Super. 137, 144 (App. Div. 2009). "The court need not give the expert's opinion 'greater weight than other evidence []or more weight than it would otherwise deserve in light of common sense and experience.'" E&H Steel Corp. v. PSEG Fossil, LLC, 455 N.J. Super. 12, 29 (App. Div. 2018) (quoting Torres v. Schripps, Inc., 342 N.J. Super. 419, 430 (App. Div. 2001)). "Factual findings

          

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premised upon evidence admitted in a bench trial 'are binding on appeal when supported by adequate, substantial, credible evidence.'" Potomac Ins. Co. of Ill by OneBeacon Ins. Co. v. Pa. Mfrs.' Ass'n Ins. Co., 215 N.J. 409, 421 (2013) (quoting Cesare, 154 N.J. at 411-12).

III.

We first address Nicole's argument that Judge Costello abused her discretion in rejecting the handwriting expert's opinion. Judge Costello declined to accept the expert's opinion after considering the "factual basis and methodology," which consisted of using the "computer technology" program, "Photo Shop," to overlay Beverly's two will signatures in different colors to compare the signatures. In rejecting the opinion, she found the expert: only reviewed copies of the wills; had conceded the "repeated copying of any document w[ould] diminish the resolution thereof"; and "admit[ted] that he did not know how many times either of the documents he examined were copied." Judge Costello was "unpersuaded by the opinions offered by [the expert] that the 2019 [w]ill [wa]s a forgery" because she "discredited the reliance on the comparative resolution" of the signatures. As the factfinder, Judge Costello reviewed the "colorized overlay of the two signatures" and found the image, as purported by the expert, did not demonstrate a replicated "copy of the other,"

  

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because the evidence as alleged did "not completely overlay one another." Finally, in determining that the expert's "testimony render[ed] any reliance on the resolution of the signatures untrustworthy and of no aid to the court," the judge found the expert failed to establish "the signatures 'came from a common source.'" We discern no error in the judge's decision.

We defer to Judge Costello's credibility findings which are well-reasoned and her factual determinations which are supported by the substantial credible evidence. We observe, as did the trial judge, that an expert must "'give the why and wherefore' that supports the opinion, 'rather than a mere conclusion.'" Townsend v. Pierre, 221 N.J. 36, 54 (2015) (quoting Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013)). The judge acted within her discretion to reject the expert's opinion.

Nor are we persuaded by Nicole's argument that admitting to probate the 2019 will was against the weight of the evidence. Judge Costello made specific factual findings supported by the record that the 2019 will was Beverly's intended testamentary document. The judge elucidated that "the unbiased, direct and credible testimony of Wanda Powell and Fonda Stewart clearly and convincingly established that Beverly . . . signed what she intended to be" her will. Judge Costello found it uncontroverted that Beverly's friends credibly

  

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"both identified their own signatures" and "witnessed the signature of" Beverly and those of "one another." The findings that "the requirements of the statute [we]re satisfied and the 2019 [w]ill [wa]s deemed to be validly executed" are supported by the substantial credible evidence.

A will executed in accordance with N.J.S.A. 3B:3-2 shall be: "(1) in writing"; "(2) signed by the testator"; and "(3) signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will . . . or the testator's acknowledgment of that signature or acknowledgment of the will." The Legislature enacted N.J.S.A. 3B:3-3 to address effectuating a decedent's intent when the testamentary document "was not executed in compliance with N.J.S.A. 3B:3-2." See In re Probate of Will & Codicil of Macool, 416 N.J. Super. 298, 310-12 (App. Div. 2010) (quoting N.J.S.A. 3B:3-3). Thus, N.J.S.A. 3B:3-3 provides for the ability to probate an informal will and avoid intestacy:

 

Although a document or writing added upon a document was not executed in compliance with N.J.S.[A.] 3B:3-2, the document or writing is treated as if it had been executed in compliance with N.J.S.[A.] 3B:3-2 if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: (1) the decedent's will; (2) a partial or complete revocation of the will; (3) an addition to or an alteration of the will; or (4) a partial or complete revival

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of his formerly revoked will or of a formerly revoked portion of the will.

[N.J.S.A. 3B:3-3.]

It is presumed that a testator was competent and of sound mind when he or she executed a will. Haynes v. First Nat'l State Bank of N.J., 87 N.J. 163, 175-76 (1981).

As observed by the judge, "[c]opies of [w]ills offered for probate in place of lost originals is a fairly common occurrence." "The fact that the document is only a copy of the original . . . is not fatal to its admissibility to probate." In re Est. of Ehrlich, 427 N.J. Super. 64, 75 (App. Div. 2012). We discern no abuse of discretion in the judge's decision declining to find the 2019 will a forgery and determining the copy of the 2019 will was consistent with the "goal" of giving "effect" to the "intention of the maker of the [w]ill." As observed by the judge, neither of the proffered wills was an original with Beverly's signature. Although both wills were witnessed, the credible testimony of Wanda and Fonda, as found by the judge, evinced that the 2019 will was Beverly's intended testamentary document. Judge Costello's finding that the clear and convincing evidence established Beverly revoked her 2015 will and validly executed the 2019 will is supported by the substantial credible evidence in the record.

 

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To the extent not addressed, defendant's remaining arguments lack sufficient merit to warrant discussion in our written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

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