LIBERTARIANS FOR TRANSPARENT GOVERNMENT, ETC. VS. CUMBERLAND COUNTY, ET AL. (L-0609-18, CUMBERLAND COUNTY AND STATEWIDE) (A-1661-18T2)

 LIBERTARIANS FOR TRANSPARENT GOVERNMENT, ETC. VS. CUMBERLAND COUNTY, ET AL. (L-0609-18, CUMBERLAND COUNTY AND STATEWIDE) (A-1661-18T2)

The court determines a settlement agreement between defendant Cumberland County and a former County employee resolving a preliminary notice of disciplinary action (PNDA) against the employee is not a government record under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, but instead is a personnel record exempt from disclosure under section 10 of the statute, N.J.S.A. 47:1A-10. The court rejects the argument of plaintiff Libertarians for Transparent Government that the settlement agreement was properly released in redacted form as not supported by the language of section 10 or the history of excluding personnel and pension records from public access contained in Executive Orders 9 (Hughes), 11 (Byrne) and 21 (McGreevey).

The court reverses the trial court order that released the redacted settlement agreement and remands for the court to consider whether Libertarians is entitled to the agreement, either in whole or in part, under the common law right of access to public records, see Bergen Cty. Improvement Auth. v. N. Jersey Media Grp., Inc., 370 N.J. Super. 504, 520 (App. Div. 2004).

STATE OF NEW JERSEY VS. MICHAEL GUERINO (16-04-0672,

 STATE OF NEW JERSEY VS. MICHAEL GUERINO (16-04-0672, OCEAN COUNTY AND STATEWIDE) (A-4644-17T1)

This case examines the scope of Rule 3:11, which requires law enforcement to make a detailed record of an out-of-court identification. The court focused on an unusual live identification event that took place almost two years after the robbery and two weeks before trial. The prosecutor asked the robbery victim to come to the courthouse and sit in a hallway while defendant and other jail inmates were led past her. This event was not electronically recorded and no verbatim account was made of the dialogue between the victim and prosecutor's office representatives who accompanied her. Defendant argued this event corrupted the victim's memory, rendering her subsequent in-court identification inadmissible.

The State did not seek to introduce evidence of the hallway event at trial and characterized it as "trial prep." The court nonetheless concluded it was an out-of-court "identification procedure conducted by a law enforcement officer" within the meaning of Rule 3:11(a) and therefore should have been recorded. The court remanded for the trial court to make detailed findings concerning whether the hallway procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

STATE OF NEW JERSEY VS. JEREMIE FABER (17-036,

 STATE OF NEW JERSEY VS. JEREMIE FABER (17-036, MONMOUTH COUNTY AND STATEWIDE) (A-5726-17T4)

Defendant was convicted in municipal court of driving while under the influence of alcohol (DWI), N.J.S.A. 39:4-50(a). In a de novo appeal pursuant to Rule 3:23-8, the Law Division found defendant guilty, but reduced the period of license suspension from nine months to seven months because the municipal court judge improperly relied on defendant's lack of credibility to support a lengthier period of license suspension. In this appeal, defendant argues the Law Division should have vacated his municipal court conviction and remanded the matter for a new trial.

This court affirms but sua sponte remands for the Law Division to resentence defendant in accordance with N.J.S.A. 39:4-50(a)(1)(ii) and N.J.S.A. 39:4-50.17. This court also notes the Law Division's failure to follow the standard in State v. Robertson, 228 N.J. 138 (2017) when it stayed the execution of defendant's sentence pending the outcome of this appeal.