STATE OF NEW JERSEY VS. ANWAR BELTON A-0971-16T1

STATE OF NEW JERSEY VS. ANWAR BELTON 

A-0971-16T1 

In this PCR appeal, defendant collaterally challenged his conviction, after a guilty plea, to aggravated manslaughter. The panel concludes that defendant, in the course of his allocution, suggested a defense of others that was inconsistent with guilt; his waiver of that defense was not knowingly made; therefore, he did not present a sufficient factual basis of guilt. In reaching this conclusion, the panel applies the principles set forth in State v. Urbina, 221 N.J. 509 (2015), although that case involved a claim of self-defense, rather than the defense of others, suggested in the course of a guilty plea. In view of defendant's contemporaneous claim of innocence, the panel held that the failure to elicit a sufficient factual basis was of constitutional dimension and warrants PCR. 

STATE OF NEW JERSEY VS. ANWAR BELTON A-0971-16T1

 STATE OF NEW JERSEY VS. ANWAR BELTON 

A-0971-16T1 

In this PCR appeal, defendant collaterally challenged his conviction, after a guilty plea, to aggravated manslaughter. The panel concludes that defendant, in the course of his allocution, suggested a defense of others that was inconsistent with guilt; his waiver of that defense was not knowingly made; therefore, he did not present a sufficient factual basis of guilt. In reaching this conclusion, the panel applies the principles set forth in State v. Urbina, 221 N.J. 509 (2015), although that case involved a claim of self-defense, rather than the defense of others, suggested in the course of a guilty plea. In view of defendant's contemporaneous claim of innocence, the panel held that the failure to elicit a sufficient factual basis was of constitutional dimension and warrants PCR. 

Not criminal harassment to publish rude flyers State v. Burkert

Not criminal harassment to publish rude flyers
State v. Burkert (A-6-16) Decided December 19, 2017
ALBIN, J., writing for the Court.
This case tests the limits to which a broadly worded harassment statute, N.J.S.A. 2C: 33-4(c), can criminalize speech.
William Burkert and Gerald Halton were corrections officers, who held positions in different unions representing distinct classes of officers. Their relationship became particularly strained after Burkert read online comments attributed to Halton’s wife that Burkert felt insulted him and his family. Angered by the insulting online comments, Burkert retaliated. Burkert downloaded the Haltons’ wedding photograph. He then copied the photograph and made two flyers, writing lewd dialogue in speech bubbles over the faces of the bride and groom.
Halton testified that on January 8, 2011, he arrived at the employee garage of the Union County Jail and saw papers “blowing all over the place.” He picked one up and discovered Flyer #1. The next day, when Halton arrived at work, a sergeant handed him Flyer #2, which the sergeant had found in the area of the officers’ locker room. Halton identified the handwriting on both flyers as Burkert’s. On January 11, while Halton was engaged in union negotiations, a lieutenant handed him Flyer #2, stating, “This came out the other night.” Halton indicated that he “was a mess in negotiations,” went home, and never returned to work. Halton explained that he felt embarrassed and concerned for his safety and received psychological counseling and treatment.
Ten months after the January incidents, Halton filed criminal harassment charges against Burkert. Halton stated that he filed the charges only because the county had failed to properly discipline Burkert. He also filed a civil lawsuit against Burkert. During the county’s investigation into the flyers, Burkert admitted that he had prepared the flyers but denied circulating them. Burkert explained that he expressed himself through the flyers rather than “get physical with the guy.” Burkert retired as a corrections officer in September 2012.
The municipal court entered a guilty verdict against Burkert for harassing Halton on January 8 and 11 in violation of N.J.S.A. 2C: 33-4(c). The court found that Burkert made and circulated the flyers in the garage and locker room, that the bubble dialogue inscribed on the Haltons’ wedding photograph was “lewd and obnoxious,” and that such language would “seriously annoy any person, in this case Mr. Halton.” In a de novo trial before the Law Division, the court found Burkert guilty beyond a reasonable doubt of committing acts of harassment.
A panel of the Appellate Division reversed Burkert’s conviction, concluding “the commentary [Burkert] added to [Halton’s] wedding photograph was constitutionally protected speech.” 444 N.J. Super. 591, 594 (App. Div. 2016). The panel accepted the argument that “the altered photograph . . . was not directed to [Halton],” but rather to an audience of possibly willing listeners—other corrections officers. Id. at 601-02. The panel determined that the evidence did not support a finding that the flyers “were a direct attempt to alarm or seriously annoy” Halton or to invade his privacy rights. Id. at 601. The panel also found that the vulgar commentary on the flyers did not constitute criminal harassment. Id. at 603.
The Court granted the State’s petition for certification. 227 N.J. 377 (2016).
HELD: To ensure that N.J.S.A. 2C:33-4(c) does not exceed its constitutional reach in cases involving the prosecution of pure speech, repeated acts to “alarm” and “seriously annoy” must be read as encompassing only repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person’s reasonable expectation of privacy.
1
1. N.J.S.A. 2C:33-4 distinguishes between “communications” and “language” that violate the statute in subsection (a), and “conduct” and “acts” that do so in subsection (c). Although a “course of alarming conduct” or “repeatedly committed acts” can occur through communications and language alone, it is far from clear that the Legislature had in mind offensive speech as the object of N.J.S.A. 2C:33-4(c). That the primary thrust of N.J.S.A. 2C:33-4(c) is not to interdict speech, but rather conduct, is reinforced in State v. Hoffman, 149 N.J. 564 (1997).
2. Criminal laws touching on speech must give fair notice of where the line is set between what is permissible and proscribed and must be drawn with appropriate definiteness. A court can invalidate a statute that is substantially overbroad on its face if the statute reaches a substantial amount of constitutionally protected conduct. Such a drastic remedy, however, is not the only—and not even the preferred—approach. Provided that a statute is reasonably susceptible to an interpretation that will render it constitutional, courts must construe the statute to conform to the Constitution.
3. The vaguely and broadly worded standard in N.J.S.A. 2C:33-4(c) does not put a reasonable person on sufficient notice of the kinds of speech that the statute proscribes. The statute’s vagueness also gives prosecuting authorities undue discretion to bring charges related to permissive expressive activities. That, in turn, means that the statute—if not more narrowly defined—has the capacity to chill permissible speech. Under N.J.S.A. 2C:33-4(c), a person who, with the purpose to seriously annoy another, does seriously annoy another is guilty of harassment. Speech, however, cannot be transformed into criminal conduct merely because it annoys, disturbs, or arouses contempt. The First Amendment protects offensive discourse, hateful ideas, and crude language because freedom of expression needs breathing room and in the long run leads to a more enlightened society. Outside of the category of obscenity, courts should not play the role of censor by engaging in a weighing of an expression’s value or relative social costs and benefits. Speech cannot be criminalized merely because others see no value in it. Nonetheless, neither the First Amendment nor Article I, Paragraph 6 of our State Constitution prohibits the State from criminalizing certain limited categories of speech, such as speech that is integral to criminal conduct, speech that physically threatens or terrorizes another, or speech that is intended to incite imminent unlawful conduct. The First Amendment also does not bar states from enacting laws that punish expressive activity when substantial privacy interests are being invaded in an essentially intolerable manner. (4. N.J.S.A. 2C:33-4 provides: “[A] person commits a petty disorderly persons offense if, with purpose to harass another, he: . . . (c) Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.” In cases based on pure expressive activity, the amorphous terms “alarming conduct” and “acts with purpose to alarm or seriously annoy” must be defined in more concrete terms consonant with the dictates of the free-speech clauses of our Federal and State Constitutions. Narrowly reading the terms alarm and annoy will save the statute from constitutional infirmity. Therefore, for constitutional reasons, the Court will construe the terms “any other course of alarming conduct” and “acts with purpose to alarm or seriously annoy” as repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person’s reasonable expectation of privacy. That standard applies only in those cases where the alleged harassing conduct is based on pure expressive activity.
5. The prosecution in this case targeted purely expressive activity and therefore the Court applies the heightened standard of subsection (c) set forth above. Neither the municipal court nor Law Division judge who sat in this case had the benefit of the standard developed in this opinion. They applied the statute as written. Although in other circumstances a remand might be appropriate, the Court sees no point here because even the most indulgent view of the record favoring the State would not support a harassment conviction under N.J.S.A. 2C: 33-4(c).  

No Good faith exception to police mistake in search warrant State v. Boone

No Good faith exception to police mistake in search warrant

 State v. Boone (A-3-16) (077757)

  Decided December 18, 2017

In this appeal, the Court considers whether a warrant application that did not include evidence as to why a specific apartment unit should be searched fell short of establishing probable cause for the search of that apartment.

Over the course of two months during the summer of 2012, the Bergen County Prosecutor’s Office Narcotics Task Force set up surveillance of defendant Akeem Boone for suspected distribution of crack cocaine, marijuana, and heroin. On August 27, 2012, police observed Boone drive to a parking lot in River Edge and retrieve a duffel bag from an unoccupied vehicle. He later drove to an apartment building, 211 Johnson Avenue, where police suspected he lived. Boone did not bring the bag into the thirty-unit building. An hour later, Boone went to retrieve the bag but, noticing the vehicle from which police were monitoring him, returned the bag to the car and drove away. Several times that day, police saw him drive to and from the Johnson Avenue apartment complex. That same evening, police followed Boone from Johnson Avenue to Main Street in Hackensack, where they observed what appeared to be a hand-to-hand drug transaction. Boone then drove back to the apartment complex.

On August 29, 2012, Detective Dennis Conway of the Bergen County Prosecutor’s Office applied for a warrant to search Boone, his car, and Unit 4A of 211 Johnson Avenue—identified as Boone’s apartment—among other things. The detective did not note that the building was a thirty-unit apartment building, nor did he provide any details about Unit 4A or how police knew Boone was a tenant in that unit. Although the warrant application frequently mentions 211 Johnson Avenue, it never discusses the inside of the apartment building, and it fails to mention Unit 4A other than in passing. However, the detective concluded that “my investigation reveals that Boone is distributing Controlled Dangerous Substances, 211 Johnson Avenue, Apartment 4A, Hackensack.”

The trial court subsequently issued a warrant to search Boone, his residence, and his car. Police executed the search warrant on September 7, 2012, and found between one-half and five ounces of cocaine and an illegal handgun in Unit 4A. They then arrested Boone. In February 2013, a grand jury charged Boone with seven counts of drug, weapons, and child endangerment offenses.

Boone sought to suppress the evidence found in Unit 4A on the ground that the search warrant lacked a factual basis to establish probable cause to search his apartment. The trial court denied the motion. Although the court acknowledged that police offered no support to justify a search of Unit 4A, it noted that Detective Conway provided extensive details of the police surveillance of Boone. The court found that Boone’s activity, coupled with the detective’s investigative experience and Boone’s criminal history, established probable cause to search Unit 4A. After the denial of his motion to suppress, Boone pled guilty to two second-degree drug offenses.

The Appellate Division affirmed the denial of the motion to suppress in an unpublished opinion. The panel held that the totality of the circumstances presented in the affidavit justified a finding of probable cause for the issuance of the search warrant. The panel found that the issuing judge had “ample grounds to anticipate” that narcotics would be in Boone’s apartment “given the furtive conduct of defendant the surveilling officers had observed and his two recent apparent hand-to-hand drug transactions at another location.”

The Court granted certification. 227 N.J. 356 (2016).

HELD: Because the warrant affidavit failed to provide specific information as to why defendant’s apartment and not other units should be searched, the warrant application was deficient. 2

1. The search-and-seizure provision in Article I, Paragraph 7 of New Jersey’s Constitution affords a higher level of protection for citizens than the Fourth Amendment of the United States Constitution. Searches without a warrant are presumed unreasonable unless they fall within an exception to the warrant requirement.   

2. The application for a warrant must satisfy the issuing authority that there is probable cause to believe that a crime has been committed, or is being committed, at a specific location or that evidence of a crime is at the place sought to be searched. The requirement for a search warrant is not a mere formality, and the showing necessary to secure one should be based not merely on belief or suspicion, but on underlying facts or circumstances which would warrant a prudent man in believing that the law was being violated.  

3. Reviewing courts accord substantial deference to the discretionary determination resulting in the issuance of the search warrant. Courts consider the totality of the circumstances and should sustain the validity of a search only if the finding of probable cause relies on adequate facts. The probable cause determination must be based on the information contained within the four corners of the supporting affidavit, as supplemented by sworn testimony before the issuing judge that is recorded contemporaneously. The analysis into sufficient probable cause to issue a warrant for an arrest or for a search involves two separate inquiries.

4. In State v. Keyes, the Court held that a confidential informant’s tip could serve as the basis for issuing a warrant provided that there is “substantial evidence in the record to support the informant’s statements.” 184 N.J. 541, 555 (2005). Although police could not observe the informant enter the home in that case, under the totality of the circumstances, there was a sufficient basis to issue the warrant based on the controlled drug buy. Id. at 559-60. The Court credited the informant’s past contributions to drug sale arrests, his description of the defendant, the controlled buy, and the fact that known drug users were entering and exiting the area as contributing to the totality of the circumstances. Id. at 558-60. Because police had that corroborating evidence and the informant’s tip linking the defendant to the apartment, the Court held that the warrant had a sufficient basis.

5. Here, no independent documentary evidence, such as a voting record, utility bill, or lease, was offered to corroborate Boone’s address. No neighbor, informant, or controlled transaction demonstrated that Boone lived in Unit 4A. Police failed to provide the issuing judge a basis of knowledge from which to conclude that contraband would be found in the particular apartment. That is true regardless of whether the warrant application provided a basis for Boone’s arrest because, as noted, probable cause to arrest a suspect is not synonymous with probable cause to search that suspect’s apartment. Police lacked the facts important in Keyes, namely a reliable informant who could identify where Boone lived. Police here listed Boone’s apartment unit as the targeted property in a conclusory manner, without any evidential basis as to how they knew that specific unit in a thirty-unit building contained contraband. The Court recognizes that the error here was likely an innocent oversight by the police. However, because New Jersey does not recognize an officer’s good faith alone as an exception to the warrant requirement, the error demands reversal.

6. Because the State’s warrant application did not include specific evidence as to why a judge should issue a search warrant for a specific apartment unit, the search warrant issued on the basis of that application was invalid. And, because the police search of Unit 4A was not supported by a valid warrant or justified by an exception to the warrant requirement, the search was unconstitutional. Therefore, the Court suppresses all evidence seized from Boone’s apartment. The Court emphasizes that judges issuing search warrants must scrutinize the warrant application and tie specific evidence to the persons, property, or items the State seeks to search. Without that specificity and connection to the facts, the application must fail.

STATE OF NEW JERSEY VS. DONOVAN WHITE STATE OF NEW JERSEY VS. LARRY BOSTIC A-4778-16T6

STATE OF NEW JERSEY VS. DONOVAN WHITE 

STATE OF NEW JERSEY VS. LARRY BOSTIC 

A-4778-16T6 AND A-5364-16T6 (CONSOLIDATED) 

In these two appeals from orders of detention pursuant to the Criminal Justice Reform Act, N.J.S.A. 2A:162-15 to -26 (the CJRA), the Law Division revoked defendants' pretrial release for violations of conditions. 

In White, although defendant received notice that the hearing on the State's motion to revoke would occur on a different date, the judge refused to grant a short extension of the hearing when defendant appeared in court so defendant could call a witness and produce other evidence. The panel concluded the judge mistakenly exercised his discretion and reversal was required because the denial of the adjournment was prejudicial to defendant's ability to rebut the State's proffered evidence of a violation. 

In Bostic, defendant was immediately arrested when he reported for the first time to Pretrial Services. The State alleged defendant violated conditions of his release, specifically leaving his home and entering a "victim exclusion zone" for one minute. The Law Division judge revoked defendant's release. 

The panel reversed, concluding there was no authority for defendant's immediate arrest, because he committed no new offense and the court had issued no warrant for his arrest based upon alleged violations of conditions. The panel also concluded the State failed to prove by preponderance of the evidence that defendant knew the parameters of the victim "exclusion zones," or that his failure to remain in his home, when specifically ordered to report to Pretrial Services, was a violation of his conditions of release. 

STATE VS. LEON FAISON A-3629-15T4

STATE OF NEW JERSEY VS. LEON FAISON 

A-3629-15T4 

In this case, we reverse defendant's conviction for operating a motor vehicle while his license was suspended for a second or subsequent driving while intoxicated (DWI) conviction, N.J.S.A. 2C:40-26(b). While defendant's license was suspended for a second DWI conviction when the police stopped him, before trial he successfully petitioned for post-conviction relief (PCR). The order granting PCR vacated his prior DWI convictions and remanded both matters to the municipal court for new trials. On remand, the municipal court dismissed one DWI charge, and defendant pled guilty to the other. 

As a result of defendant's PCR and remand proceedings, at the time of his trial for violating N.J.S.A. 2C:40-26(b), he had only one prior DWI conviction. Accordingly, the State could not prove an element of the crime charged — a second DWI conviction — a prerequisite to the mandatory 180-day incarceration period imposed by N.J.S.A. 2C:40-26(b) and (c). 

STATE OF NEW JERSEY VS. ROLANDO TERRELL A-0492-11T4/

 STATE OF NEW JERSEY VS. ROLANDO TERRELL 

A-0492-11T4/A-1593-12T4(NEWLY PUBLISHED OPINION FOR 11/29/17) 

Defendant appeals from his convictions and sentence asserting several arguments, which challenge evidentiary determinations by the trial judge. Specifically, defendant characterizes the errors as: (1) the exclusion of defense expert testimony evaluating the reliability of voice identification evidence and discussing factors affecting the reliability of what was termed "earwitness" identification; (2) the admission of what he characterizes as the State's prejudicial, irrelevant gang expert evidence; and (3) the admission of the State's misleading expert testimony pertaining to the chemicals Toluene and D5 found at the scene. 

The court affirmed the evidentiary rulings, noting the judge fully determined the limits of admissibility of all evidence. When deeming certain subjects inadmissible, the trial judge's detailed findings including: the expert was found not to be qualified to address the area; the testimony risked misleading the jury; the concepts related to matters of common sense; and the opinion tended to tread on the jury's credibility determinations. 

STATE OF NEW JERSEY VS. SUSAN HYLAND A-2530-16T2

 STATE OF NEW JERSEY VS. SUSAN HYLAND 

A-2530-16T2 

The State appeals a special probation Drug Court sentence imposed under N.J.S.A. 2C:35-14 following defendant's conviction for second-degree leaving the scene of a fatal accident, N.J.S.A. 2C:11-5.1, third-degree causing death while driving with a suspended or revoked license, N.J.S.A. 2C:40-22(a); and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2(a). The State contends the court erred in its assessment of the factors required for imposition of a special probation sentence under N.J.S.A. 2C:35-14. 

The court concludes it is without jurisdiction to hear the appeal, finding the State lacked authority to appeal because the sentence is not illegal and N.J.S.A. 2C:35-14 does not authorize the State to appeal a special probation sentence. The court rejects the contention that N.J.S.A. 2C:44-1(f)(2) authorizes the State's appeal because defendant received a probationary sentence for a second-degree crime that is otherwise subject to a presumption of imprisonment under N.J.S.A. 2C:44-1(d). The court determines that the State's appeal authorized by N.J.S.A. 2C:44-1(f)(2) is limited to challenges to sentencing determinations under N.J.S.A. 2C:44-1(d), and does not apply to sentencing decisions made under N.J.S.A. 2C:35-14. 

STATE OF NEW JERSEY VS. NICHOLAS MASCE A-1967-16T1

 STATE OF NEW JERSEY VS. NICHOLAS MASCE

A-1967-16T1

The State of New Jersey appealed from the sentencing judge's order denying its request to enter, as part of the plea agreement reached between it and defendant, a civil consent judgment for restitution due the victims of defendant's theft, and from an order denying reconsideration. The court affirmed, concluding the Legislature did not confer statutory authority on a sentencing judge to enter a civil consent judgment in favor of a crime victim.

guardians fee reduced here IN THE MATTER OF MARIA DELORES HELLER, an Alleged Mentally Incapacitated Person.

guardians fee reduced here IN THE MATTER OF 

MARIA DELORES HELLER, 

an Alleged Mentally 

Incapacitated Person.

____________________________________

September 11, 2017

Submitted March 6, 2017 – Decided 

Before Judges Nugent and Currier.

On appeal from Superior Court of New Jersey, Chancery Division, Probate Part, Bergen County, Docket No. P-244-15.

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.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0 

PER CURIAM

The appeal and cross-appeal in this unsuccessful guardianship action involve the trial court's denial of compensation to a guardian pendent lite and the fee award to her attorneys. Maria Delores Heller, the alleged incapacitated person, appeals from an order that required her to pay counsel fees to the attorneys who represented the guardian pendente lite ("temporary guardian") as well as the premium for the temporary guardian's bond. The temporary guardian cross-appeals from the same order, arguing the court erred by reducing the fee her attorneys sought and by denying her application for compensation. We have reviewed the trial court's decisions and order for an abuse of discretion and found none. We thus affirm the August 6, 2015 order in its entirety.

The underlying facts are essentially undisputed. Heller, a septuagenarian during the guardianship proceedings, suffers from late-stage Amyotrophic Lateral Sclerosis (ALS). She is bedridden and requires round-the-clock medical care. On July 6, 2015, the temporary guardian, a New York attorney and a former legal associate of Heller's late husband, filed, through New Jersey counsel, an order to show cause and a verified complaint. The temporary guardian sought to have a court declare Heller incapacitated and appoint her as permanent guardian. 

In support of her application, the temporary guardian submitted two physicians' certifications opining Heller suffered from ALS, which rendered her mentally incapacitated and unable to govern her own affairs. One physician concluded Heller needed a feeding tube without which she was at a high risk of developing aspiration pneumonia and slowly starving herself to death. In addition to the physicians' certifications, the temporary guardian alleged Heller had withdrawn a large sum of money from a bank account, prompting the bank to contact Adult Protective Services.

The court appointed counsel to represent Heller. On July 8, 2015, based on the physicians' certifications, the court appointed the temporary guardian as pendente lite guardian of MDH's person and property.¹ The order vested the temporary guardian with the authority to "arrange interim financial, social, medical or mental health services" deemed necessary to address MDH's needs and avoid substantial harm to her person or property. The order also authorized the temporary guardian "to receive reasonable fees for her services as well as reimbursement for reasonable expenses upon approval of the [c]ourt [to be paid] from the estate." 

On July 16, 2015, the temporary guardian filed an emergent application to have Heller examined, and, if necessary, to have doctors insert a feeding tube to save her life. The court entered a consent order that required Heller's medical examination to take place as soon as possible and authorized the temporary guardian to approve the administration of life-saving medical intervention, including the insertion of a feeding tube. After doctors examined Heller, they discharged her from the emergency room, finding a feeding tube was unnecessary. 

A few days after Heller's examination, the temporary guardian decided to withdraw her guardianship application. She represented to the court that she no longer wished to continue as guardian pendente lite for Heller "in any capacity." After hearing oral argument and reviewing two new physicians' certifications concluding Heller had the capacity to make decisions relating to her medical care, the court dismissed the guardianship proceeding, finding Heller had capacity and should be permitted to "die with whatever dignity she so chooses to die with."

The court also relieved the temporary guardian of her duties as pendente lite guardian. The court entered an implementing order on July 23, 2015. The temporary guardian had thus served in that capacity from July 8, 2015 to July 23, 2015, a total of fifteen days.² For her services, the temporary guardian sought compensation of $44,973.66 and expenses of $3938.52. Her attorneys sought fees of $35,946.25 and reimbursement of $1678.32 for expenses. 

The court denied the temporary guardian's application for compensation, but awarded her attorneys $25,924.27, $23,000.00 of which the court ordered reimbursed to the temporary guardian, who had paid her attorneys that sum. The court also ordered Heller to pay a bonding agency $1790 for the bond premium owed for the bond the temporary guardian had posted.³

Heller paid the bond premium but not the temporary guardian's counsel fees. Rather, she "appealed" the fee award to the trial court, alleging the court had erred by awarding fees to the temporary guardian's attorneys. Heller argued the attorneys were unsuccessful, the court having dismissed the guardianship action. She also argued the temporary guardian's motive in filing the action was for personal gain. Lastly, she argued the attorneys' fees were excessive.

A court has authority to fix compensation for a guardian ad litem, his or her attorney, and appointed counsel under Rule 4:86-4(e), which states: "The compensation of the attorney for the party seeking guardianship, appointed counsel, and of the guardian ad litem, if any, may be fixed by the court to be paid out of the estate of the alleged incapacitated person or in such other manner as the court shall direct."  Rule 4:42-9, which enumerates actions in which the award of fees are allowable, also authorizes such fees: "In a guardianship action, the court may allow a fee in accordance with R. 4:86-4(e) to the attorney for the party seeking guardianship, counsel appointed to represent the alleged incapacitated person, and the guardian ad litem."  R. 4:42-9(a)(3). 

Both rules vest the court with discretion to fix compensation; the rules do not mandate that a court do so. A court has discretion to decline to award a fee. Moreover, if a court in its discretion chooses to award a fee, the court may consider counsel's lack of success in determining what fee is reasonable.  Cf. Szczepanski v. Newcomb Med. Center, 141 N.J. 346, 355 (1995) (noting that the method for calculating reasonable fees – a product of hours reasonably expended on litigation times a reasonable hourly rate – may be excessive if a plaintiff has achieved only partial or limited success). "[F]ee determinations by trial courts will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion."  Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001). 

Heller does not dispute the court's discretion to award fees to the attorneys for the temporary guardian. Rather, she contends the court abused its discretion because the temporary guardian's "motive in being appointed guardian in this case [was] money," the temporary guardian "misrepresented the mental state of Heller in her Verified Complaint in order to get appointed," and "[t]o require Heller, who was found to be mentally competent, to pay this amount of money for a legal proceeding that was dismissed without a trial or plenary hearing [eighteen] days after its inception is unconscionable." 

The trial court determined the temporary guardian's "application was brought in good faith . . . and not for [plaintiff's] own gain." The court also determined "litigation costs were necessary and could not be avoided." These findings are supported by adequate, substantial, and credible evidence in the record and are therefore binding on appeal.  Triffin v. Automatic Data Processing, Inc., 411 N.J. Super. 292, 305 (App. Div. 2010) (citing Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). 

Nor do we find any abuse of discretion by the trial court in the amount of fees it awarded. Attorneys seeking fees under the actions enumerated in Rule 4:42-9 must file "an affidavit of services addressing the factors enumerated by RPC 1.5(a)." R. 4:42-9(b). A judge considering a fee application in a guardianship action should also consider the plaintiff's motivation in pursuing the guardianship action, whether the plaintiff has a potential interest in the incapacitated person's estate, and the financial circumstances of both plaintiff and the alleged incapacitated person.  In re Landry, 381 N.J. Super. 401, 410 (Ch. Div. 2005). Of course, the court must also consider the reasonableness of the hourly rate and the amount of time the attorneys "devoted to the matter."  Ibid.

Here, the court considered all of the foregoing factors as well as the life-threatening situation extant when the temporary guardian filed the guardianship application. The court determined Heller's estate was substantial. These findings are amply supported by substantial and credible evidence and therefore should not be disturbed on appeal.  Triffin, supra, 411 N.J. Super. at 305.

Similarly, on the cross-appeal, we conclude the trial court did not abuse its discretion by denying compensation to the temporary guardian. As previously noted, the temporary guardian served in that capacity for fifteen days, from July 8 to July 23, 2015; yet, she submitted a bill for services rendered from January 2, 2015 through July 29, 2015. Moreover, as the trial court explained, the time the temporary guardian allegedly spent performing certain services appears to be excessive, and the temporary guardian billed for "attorney services" when she was functioning not as an attorney, but a guardian pendente lite. The temporary guardian is not licensed to practice law in the State of New Jersey. 

The temporary guardian's application for compensation included an extraordinary number of hours for which she did not perform services as a temporary guardian, demonstrated excessive time allegedly spent for other services, and apparently included services for attorneys' fees to which she was not entitled. The billing irregularities also called into question the application for compensation that the court properly exercised its discretion in denying it.

We have considered the parties' remaining arguments and found them to be without sufficient merit to warrant further discussion.  R. 2:11-3(e)(1)(E).

Affirmed

1  The July 8, 2015 order is an amended order. The temporary guardian represents the original order was entered on July 7, 2015. 

2  The temporary guardian served for sixteen days if the day the court entered the July 8, 2015 amended order appointing her is counted, or seventeen days if July 7, 2015 is counted.  See n.1, supra. 

3  The court also awarded Heller's counsel fees and costs, a decision not challenged on this appeal.