The last two weeks have seen no Supreme Court opinions. But the Appellate Division published three opinions, two of them in the criminal realm and one civil appeal. Here are summaries, to close out 2025:
McDermott v. Guaranteed Rate, Inc., ___ N.J. Super. ___ (App. Div. 2025). This appeal, involving two consolidated cases, produced a 55-page opinion by Judge Natali. Though well worth reading in full, including for its enlightening discussion about the uses of unpublished opinions, particularly those from other jurisdictions, the headlines of the decision are well laid out in the opening paragraphs:
“These appeals, which we have consolidated for the purposes of issuing a single opinion, involve similar issues, one of which – the scope of the Ending Forced Arbitration of Sexual Assault and Harassment Act of 2021 (EFAA), 9 U.S.C. §§ 401-402, is a matter of first impression in New Jersey. In A-0921-24, Megan McDermott challenges the court’s order that applied the EFAA to bar from arbitration only those counts in her fourteen-count complaint related to the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -50. The court permitted her LAD claims to proceed in the Law Division but severed the rest for prosecution in an arbitral forum and rejected her later application for reconsideration. The court also denied defendants’ motion to dismiss plaintiff's LAD sexual harassment claim as time barred, a decision they challenge by way of a cross-appeal.
Geraldine Rivera-Santana's appeal in A-1568-24 raises nearly identical issues. For her part, she challenges the court’s order that limited the application of the EFAA’s arbitration bar to only her LAD hostile work environment sexual harassment-based claim, but directed her remaining claims, all of which were plead under the LAD, to arbitration after finding they arose out of a different set of operative facts. The Rivera-Santana court also rejected defendants' application to dismiss her LAD-based cause of action for sexual harassment, gender discrimination, and hostile work environment as untimely.
We reject defendants' arguments that the EFAA should be interpreted to bar only those claims for which the underlying conduct related specifically to a sexual harassment cause of action, and instead, adopt the majority view of published federal and state court opinions that have considered this issue, and conclude Section 402(a) of the EFAA renders pre-dispute arbitration agreements unenforceable as to all claims in a multiclaim dispute where plaintiff has pled a viable claim involving sexual harassment. We agree, however, with both courts' decision that, through the indulgent lens of a Rule 4:6-2(e) application, as pled plaintiffs' LAD-based sexual harassment claims are not time-barred.”
State v. Gibson, ___ N.J. Super. ___ (App. Div. 2025). Defendant, a Newark police detective, took administrative sick leave. Newark Police Department policies prevented persons on sick leave from taking any outside employment. Despite that, defendant worked as a security guard at a hospital on multiple occasions. A jury found him guilty of theft by unlawful taking and official misconduct. In an opinion by Judge Sabatino, the Appellate Division affirmed the theft conviction but reversed the official misconduct conviction. The statute under which defendant was charged with official misconduct requires “an act relating to [defendant’s] office but constituting an unauthorized exercise of his official functions.” The panel held that his conviction foundered on the “exercise of his official functions” requirement. “His behavior in accepting the sick pay benefits did not entail any of the customary functions of a police officer or detective, such as responding to police dispatches, investigating possible criminal activity, tracking down and interviewing witnesses, arresting or interrogating suspects, seizing physical evidence, procuring search warrants, preparing and compiling police reports, and the like. He did not interact with the public acting, or pretending to act as, a law enforcement official. He was not functioning as a police officer. Nor was he portraying himself to others as acting in an official police capacity ….”
State v. K.W., ___ N.J. Super. ___ (App. Div. 2025). Convicted by a jury of second-degree sexual assault and fourth-degree criminal sexual contact, defendant appealed. He raised several legal issues, all of which the Appellate Division rejected in an opinion by Judge Vinci. Defendant’s claim that a 2020 amendment to the sexual assault statute that was not in effect at the time of the alleged sexual assault violated the ex post facto clauses of the United States and New Jersey Constitutions failed because “[u]nder either version of the statute, the State was required to prove exactly the same thing – that defendant committed the act of sexual penetration ‘without the victim’s freely and affirmatively given permission.’” The panel held that a Confrontation Clause argument that was raised for the first time on appeal had been waived because it could have been presented at trial. Defendant made a tactical decision not to do that. Finally, Judge Vinci rejected a contention that the trial judge wrongly denied his request for an adverse inference charge due to the State’s failure to call a particular witness. There are four factors regarding an adverse inference charge, as stated in State v. Hill, 199 N.J. 545 (2009). The trial judge evaluated all of those factors and reached the correct conclusion.
