Opinion
DOCKET NO. A-4125-13T1
04-25-2016
NEW JERSEY DIVISION OF CHILD PROTECTION AND PERMANENCY, Plaintiff-Respondent, v. Y.D., Defendant-Appellant. IN THE MATTER OF S.A.A., a minor.
Joseph E. Krakora, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nicole Sara Piccoli, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Tracye Wilson Elliot, Designated Counsel, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Higbee. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FN-12-60-14. Joseph E. Krakora, Public Defender, attorney for appellant (Beth Anne Hahn, Designated Counsel, on the briefs). John J. Hoffman, Acting Attorney General, attorney for respondent (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Nicole Sara Piccoli, Deputy Attorney General, on the brief). Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor (Tracye Wilson Elliot, Designated Counsel, on the brief). PER CURIAM
Defendant Y.D. appeals from a March 20, 2014 Family Part order entered after a judge found she had abused or neglected her twelve-year-old daughter. Defendant argues: her daughter's out-of-court statements were uncorroborated and therefore her daughter was required to appear in court and testify; expert testimony was required to establish defendant's intoxication or impairment; the New Jersey Division of Child Protection and Permanency (the "Division") failed to prove defendant inadequately supervised her daughter; and because defendant no longer posed a threat to her daughter when the fact-finding hearing was conducted, a finding of abuse or neglect is contrary to the policies underpinning Title 9. We reject these arguments and affirm.
I.
The relevant events began on a July night in 2013 when the Division received a referral from a municipal police department. Defendant's child, who was at the department with her maternal grandmother, disclosed her stepfather had molested her several times in previous years. The next day the Division served defendant with a "Dodd" notice.
A Dodd removal is an emergency removal of a child without a court order pursuant to N.J.S.A. 9:6-8.29, part of "the Dodd Act, which, as amended, is found at N.J.S.A. 9:6-8.21 to -8.82. The Act was authored by former Senate President Frank J. 'Pat' Dodd in 1974." N.J. Div. of Youth & Family Servs. v. N.S., 412 N.J. Super. 593, 609 n.2 (App. Div. 2010). Here, the Division did not have to physically remove the child, because she was staying with her grandmother at her grandmother's home. --------
The following week, the Division filed a verified complaint and order to show cause seeking custody, care, and supervision of defendant's child. Defendant and her attorney appeared in court, as did counsel for the Division and the Law Guardian. The court determined that the Division's emergent removal of the child was necessary and that it would be contrary to the child's welfare to return her to her parents' home.
The court ordered defendant to undergo both a substance abuse and psychological evaluation. The court continued the child in the physical custody of her grandmother and entered a no-contact order as to the child's stepfather. On the return date of the order to show cause, the court continued the child's physical custody with the child's grandmother, ordered services for defendant and her daughter, and prohibited the child's stepfather from visiting the child, a prohibition which remained in place throughout the proceedings.
The court conducted periodic case management conferences and compliance review hearings between August and December 2013. During this time, defendant complied with the court's orders, completed some services, and continued with others. By the time the fact-finding hearing commenced, defendant and her child had been reunited. The fact-finding hearing took place on three non-consecutive days in January and February 2014.
During the fact-finding hearing, the Division presented its proofs through the testimony of a Division investigator, Tanisha Braithwaite, and a county prosecutor's investigator. The Division also introduced into evidence numerous documentary exhibits. Defendant testified on her own behalf. The Division's proofs established the following facts.
After receiving the screening summary and referral in July 2013, Braithwaite spoke with law enforcement officers and listened to a county prosecutor's investigator's recorded interview of the child. She next spoke with the child in her grandmother's kitchen. The child declined to discuss being molested, but talked about her home conditions and her parents' consumption of alcohol. When her parents drank, the child saw them become intoxicated. "[S]he would observe them . . . slurring [their speech], stumbling over, and she told [Braithwaite] what they would be drinking." The child felt unsafe in the presence of her stepfather.
Braithwaite spoke with defendant the day the Division served the Dodd notice, which was left in the door of defendant's home when no one came to the door. Later that day, when Braithwaite telephoned defendant to see if she had received the notice, Braithwaite asked defendant about the previous night. Defendant replied she had been drinking because her daughter had been taken away and her husband was no longer there and she had nothing else to do but drink. When Braithwaite next spoke with defendant at the first court hearing, defendant said she had "a lot of problems" with her husband and claimed she drank because of the problems. Defendant also said she believed her daughter's allegations.
The prosecutor's investigator, who had extensive experience in the Sex Crimes and Child Abuse Unit, testified and authenticated a CD recording of her interview with defendant's daughter. The CD was played for the court. During the interview, defendant's daughter explained that she had lived with her mother, stepfather, and brother. Her stepfather had been involved in her life for approximately four or five years.
The child said sometimes life at home could be rough, as it was currently. She explained that when her mother and stepfather drank, they would argue non-stop, sometimes for minutes, sometimes for hours. Her mother usually consumed a pint of vodka each night and her stepfather usually consumed a pint of Jack Daniels each night. Her mother would typically begin drinking at approximately 6:00 p.m., her stepfather perhaps at the same time during the week, but in the afternoon on weekends. When her parents drank and argued, she would go to her room, but if she became too frustrated she would go out and yell at them.
The child said she enjoyed a "usually good" relationship with her mother, who cared for her. She described her relationship with her stepfather as "okay." Some days her stepfather would be angry, other days he would be happy. The child said she had an "overall decent" relationship with both her mother and her stepfather.
The child described an incident the previous Saturday when she was playing with her dog and holding a bone. Her stepfather came out of the shower and asked why, if she could hold her dog's bone, she could not hold his "dick" when he was going to the bathroom. The child was surprised, because such comments were out of the ordinary for her stepfather, especially in the presence of her mother.
That night, during one of several conversations with her grandmother, who often asked if her stepfather had ever laid his hands on her, the child disclosed three incidents over two years when her stepfather molested her. The child had not previously disclosed the abuse because she was afraid her mother could not manage financially without her stepfather, and she was worried about the stress the disclosure would cause her mother and the entire family. The child cried hysterically when she told her grandmother about the abuse.
The child told the investigator the stepfather had molested her three times: twice in the defendant and stepfather's bedroom and once on the living room couch. She thought the incidents took place when she was eleven years old, but more likely when she was nine or ten years old. She thought she was in fourth grade the first time. The child described the specifics of each incident. The first incident occurred on defendant's bed; defendant was not home. When the second incident occurred on the living room couch, defendant was asleep in the bedroom. During the third incident, which also occurred on defendant's bed, defendant was also on the bed, passed out. Defendant had been drinking on all three occasions.
Following the interview, the prosecutor's investigator went to defendant's home one evening to speak with her husband. According to the investigator, defendant was "highly intoxicated." She raised her voice to the investigator and a fellow detective, as well as to her husband. She insisted he not leave her, not go with the detectives. "She was very wobbly, she was swaying. She was even falling into walls as she was trying to move around, pulling at him."
The Division's documentary exhibits included the reports of a psychosocial mental health evaluation and medical examination of defendant's daughter, both of which were conducted at the Dorothy B. Hersh Regional Child Protection Center (CPC). The report of the psychosocial mental health evaluation stated under "Reason for Referral" that defendant's daughter was referred by the Division. The medical evaluation report stated the Division had referred defendant's daughter "for a medical evaluation." The report then recounted the molestation allegations.
Although both reports recommended defendant's daughter undergo counseling and other services, neither concluded the child had sustained any physical or psychological injury. To the contrary, the testing the child completed during her psychosocial mental health evaluation "do[es] not indicate any mental health issues or behavior problems." Rather, the child was functioning as an intelligent, articulate young lady who was doing exceptionally well in school. Nonetheless, the evaluator recommended the child
begin individual therapy to allow her the opportunity to process her experience of sexual abuse and to further talk about her thoughts and feelings on her experience of living with her mother's alcohol abuse and the domestic violence between her mother and
stepfather. These experiences are typically traumatic and can impact children in many different ways, even when no external symptoms of mental health issues are apparent.
Defendant testified she married the stepfather in October 2008. Her relationship was "fine" for the first couple of years they were married, then "[h]e got really mean . . . and started to drink a lot . . . and that made him even more mean." They began to argue all the time. Although the arguments never became physically violent, the stepfather would throw things. When the two would begin to argue, defendant would send her daughter to her room.
Defendant thought the stepfather's relationship with her daughter was very good. He was strict with her two children, but she did not think he had abused them.
Defendant claimed she was a social drinker. She said she drank three times weekly, but not until 8:00 p.m., after which she would have "a couple of drinks before bed." She claimed she typically did not get intoxicated. She drank vodka and diet coke. Defendant stated emphatically she was never under the influence of alcohol while driving her daughter anywhere. She admitted she frequently argued with her husband before June 30, 2013. Although she was not "necessarily" drinking when they argued, he was always drinking.
On the night her daughter went to the grandmother's house, defendant and her husband had a bad argument. Defendant's daughter went to her bedroom and defendant hid in her bedroom. Defendant claimed she "heard the front door open and [saw] out the bedroom door that [her daughter] had gone . . . with [her grandmother]." The next morning, defendant went to her mother's home, saw that her daughter had been crying, and spoke to her mother. That is when defendant learned her husband had abused her daughter.
Defendant left, returned home, and confronted her husband. He denied the accusations and said he would take a lie detector test. That day and the following day, she attempted to locate a service that would administer a polygraph. The third day, he said he would not take a polygraph because he could not afford it. She told him to leave. She then "went and . . . got a bottle [of vodka] because he was leaving" and she was unsure of what to do about her daughter, though she realized she had to go to the police. The following weekend, the stepfather moved out.
During cross-examination, defendant admitted hearing her husband make the comment about the bone while her daughter was playing with the dog. Defendant claimed she freaked out and that was when her argument with her husband escalated.
The trial court determined defendant had abused or neglected her daughter. In recounting the testimony, the court emphasized defendant's daughter's statements about the extent of her mother's and stepfather's drinking, including that her mom had been drinking for years, drank Smirnoff vodka every day with diet coke, and her stepfather would drink as well. The court noted the prosecutor's investigator observed defendant to be highly intoxicated the night the investigator attempted to speak with the stepfather, a fact defendant did not deny when she testified. The court also recounted the statements defendant made to the mental health evaluator and to the prosecutor's investigator.
The court found credible both the Division's investigator and the prosecutor's investigator. Although the court found defendant to be credible, it also found that she "in a sense was not as forthcoming with information as I believe she could have been when she was discussing her drinking." The court thought defendant had held back, and downplayed her use of alcohol.
In delivering its oral decision, the court emphasized the mental health evaluator's recommendation defendant's daughter, "begin individual therapy to allow her the opportunity to process her experience of sexual abuse, and to further talk about her thoughts and feelings on her experience of living with her mother's alcohol abuse, and the [d]omestic [v]iolence between [defendant] and the [step]father." The court characterized as "one of the most important statements" in the report the evaluator's comment:
These experiences are typically traumatic, and can impact children in many different ways even when there are no external symptoms of mental health issues apparent at the time. Hence the reason she requests, or recommends that this child be placed into therapy to deal with the typical traumatic impact that children can suffer from these types of situations . . . .
The court noted the Division's theory as "twofold"; first, defendant's excessive alcohol use over years placed the child at risk of harm; and second, defendant failed to protect her child the third time the stepfather molested her because defendant had passed out from alcohol use.
Recognizing the daughter's out-of-court statements needed to be corroborated, the court determined defendant's statements to Braithwaite as well as her testimony corroborated much of what the child said. Specifically, the court noted defendant's testimony about having two or three drinks before going to bed, drinking alone with her husband, confirming her husband drank a lot, and admitting she and her husband were drinking the night her daughter made the disclosure. The court also noted defendant's statement she drank vodka and diet coke, the mix her daughter recalled. The court cited defendant's admission that she was drunk on the evening the prosecutor's investigator came to the house to talk to her husband.
Additionally, the court found defendant's testimony about the deterioration of her relationship with her husband corroborated her daughter's similar observations. Lastly, the court cited defendant's corroboration of the stepfather's vulgar remark to her daughter the morning the daughter was playing with the dog.
Having determined the child's out-of-court statements were both admissible and credible, the court concluded defendant had neglected her child. The court found defendant and the stepfather had exposed their daughter to a continuous environment of excessive alcohol consumption and that such exposure created a risk of harm to the child. That harm was "clearly delineated in the evaluation of the mental health of the Biopsycho-Social" reports referencing the child hiding in her room or seeking out her grandmother when her mother and stepfather drank excessively and fought. The court reiterated the report's recommendation that the child undergo therapy to process "this experience of sexual abuse as well as the excessive alcohol use in the home." In addition to the abuse and neglect caused by defendant's alcoholism, the court determined defendant had neglected her child by failing to protect her on the night she was molested on the same bed where defendant had passed out.
The court entered an order adjudicating defendant guilty of having abused or neglected her daughter. Less than two weeks later, the court entered an order terminating the litigation.
II.
A court must decide at the fact-finding hearing "whether the child is an abused or neglected child." N.J.S.A. 9:6-8.44. The Division "must prove that the child is 'abused or neglected' by a preponderance of the evidence, and only through the admission of 'competent, material and relevant evidence.'" N.J. Div. of Youth & Family Servs. v. P.W.R., 205 N.J. 17, 32 (2011) (quoting N.J.S.A. 9:6-8.46(b)). "[P]revious statements made by the child relating to any allegations of abuse or neglect shall be admissible in evidence; provided, however, that no such statement, if uncorroborated, shall be sufficient to make a fact finding of abuse or neglect." N.J.S.A. 9:6-8.46(a)(4).
The most effective types of corroborative evidence may be eyewitness testimony, a confession, an admission or medical or scientific evidence. However, corroborative evidence need not relate directly to the accused. By its nature, corroborative evidence "need only provide support for the out-of-court statements."
[N.J. Div. of Youth & Family Servs. v. L.A., 357 N.J. Super. 155, 166 (App. Div. 2003) (quoting N.J. Div. of Youth & Family Servs. v. Z.P.R., 351 N.J. Super. 427, 436 (App. Div. 2002)).]
The relevant statute, defines an "abused or neglected child" as
a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian . . . to exercise a minimum degree of care . . . in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court.
[N. J.S.A. 9:6-8.21(c)].
When we review an order finding that a child has been abused or neglected, our review is deferential. N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 343 (2010). We will uphold the decision of a Family Part judge if the decision is supported by sufficient credible evidence in the record. Id. at 345.
Defendant's primary argument on appeal is the trial court erred in finding she abused or neglected her child. She contends the CPC evaluations were inadmissible, no competent evidence corroborated her child's statements, and as to her alleged abuse of alcohol, expert testimony was required to "establish intoxication or impairment." Defendant further argues that because no competent evidence corroborated her child's statements, the statements were inadmissible and the child's testimony was required at the hearing. Lastly, defendant contends the Division failed to prove inadequate supervision, and in any event, under the circumstances of this case, a finding of abuse or neglect is contrary to the objectives of Title 9.
We begin our analysis with the Division's proofs concerning the extent of defendant's drinking. According to her child's statements, defendant became intoxicated nearly nightly. The child's statements were adequately corroborated. Defendant was inebriated during two unannounced visits to her home: the first when the Division's investigator served the Dodd notice, as established during the investigator's telephone conversation with defendant later the same day; and the second when the prosecutor's investigators went to defendant's home to interview her husband. Defendant admitted that she was a social drinker. She further admitted, however, that she drank three times weekly, but not until 8:00 at night, when she would have "a couple of drinks before bed." She drank vodka and diet coke, a drink her child had identified. Lastly, she admitted she frequently argued with her husband before June 30, 2013, and though she was not "necessarily" drinking when they argued, he was always drinking.
This evidence amply corroborated the child's statements concerning the extent of defendant's drinking. The factfinder could have reasonably inferred it was more than coincidental defendant was inebriated twice within the relatively short period of time investigators came to her home, unannounced. Moreover, defendant's admission she drank alone, three times each week, was contradictory to her characterization of herself as a social drinker. Considered in light of her ambiguous statement that she was not "necessarily" drinking when she and her husband argued, the record not only amply supports the court's finding defendant was understating the frequency of her alcohol consumption, but also amply corroborates her child's statements. The corroborating evidence "need only provide support for the out-of-court statements." Z.P.R., supra, 351 N.J. Super. at 436.
We also reject defendant's argument that expert testimony was necessary to establish her impairment or intoxication. Lay opinion testimony is admissible on the issue. "It is the established practice in this State to permit evidence of this character." State v. Shiren, 9 N.J. 445, 455 (1952).
The Division having proved through the child's corroborated statements that defendant drank to excess nearly every night, we must next determine whether such conduct constituted a failure to exercise a minimum degree of care in providing the child with proper supervision or guardianship. The trial court concluded that it did. We agree. When defendant became intoxicated, she failed to exercise any degree of care in providing the child with proper supervision or guardianship, let alone a minimum degree of care.
The more difficult question is whether the Division proved the child's physical, mental, or emotional condition was impaired or was in imminent danger of becoming impaired as the result of defendant's failure to exercise minimum care or guardianship when intoxicated. The court determined the child suffered such harm, as evidenced by the psychosocial evaluation, and by being molested by defendant's husband. Defendant contends the psychosocial and medical reports were erroneously admitted into evidence over her objection, and the child's statements about being molested were uncorroborated. We agree the psychosocial report was improperly admitted into evidence. We disagree the medical report was improperly admitted into evidence.
"[A] trial court's evidentiary rulings are 'entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)); see also, N.J. Div. of Youth & Fam. Sevs. v. M.G., 427 N.J. Super. 154, 172 (App. Div. 2012). For that reason, "an appellate court should not substitute its own judgment for that of the trial court, unless the 'trial court's ruling was so wide of the mark that a manifest denial of justice resulted.'" Brown, supra, 170 N.J. at 147 (quoting Marrero, supra, 148 N.J. at 484).
The trial court determined the psychosocial report was admissible under Rule 5:12-4(d), which permits the Division "to submit into evidence, pursuant to N.J.R.E. 803(c)(6) and 801(d), reports by staff personnel or professional consultants." The court based its ruling on a certification provided by the Division establishing the report was a business record. The court also apparently accepted the Division's attorney's statement that the report was obtained for the purpose of determining whether the child needed services. Although seemingly acknowledging N.J.R.E. 808's requirement the report be trustworthy, the court did not make an independent finding the report was trustworthy. In discussing what "this evaluator did," the court stated: "just like any other business record, the idea is that they would be accurate and reliable, because this person has a duty to indicate what they did during this evaluation. And if they're certifying that this is kept in the ordinary course of business, those things are considered trustworthy."
As previously noted, Rule 5:12-4(d) is subject to N.J.R.E. 803(c)(6), which permits the introduction of "records of regularly conducted activity," subject to N.J.R.E. 808. N.J.R.E. 808 provides:
Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness."Therefore, when the expert is not produced as a witness, the rule requires the exclusion of his or her expert opinion, even if contained in a business record, unless the trial judge makes specific findings regarding trustworthiness." M.G., supra, 427 N.J. Super. at 174. The court made no findings about the "motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, [or] the complexity of the subject matter." Ibid. (quoting N.J.R.E. 808). Thus, the trial judge did not make the requisite findings.
[(Emphasis added).]
The parties do not dispute that the person who prepared the psychosocial report was a consultant retained by the Division. Although the Division's attorney said the consultant had been retained to assist the Division in determining what services the child needed, the attorney's statement was not competent evidence, as she did not request the consultation and, in any event, provided no sworn statement in a certification or otherwise. Litigation was well under way, and the report's conclusion was based on the evaluator's subjective judgment rather than objective criteria. See ibid. The court misapplied its discretion by admitting the report into evidence.
We reach a different conclusion concerning the CPC medical report, which was admitted under a different rule for a different reason. The court admitted the report under N.J.R.E. 803(c)(4), which permits a court to admit:
Statements made in good faith for purposes of medical diagnosis or treatment which describe medical history, or past or present symptoms, pain, or sensations, or the inception of general character of the cause or external source thereof to the extent that the statements are reasonably pertinent to diagnosis or treatment.
Here, the child was referred to the doctor by the Division. The medical report states: "A telephone call was received by the CPC on 7/10/2013 . . . DCPP, Middlesex Coastal NJ, referring [the child] to the CPC for a medical evaluation." The child's maternal grandmother accompanied the child to the doctor's office and gave the evaluating doctor permission to "perform any evaluation necessary for the medical evaluation, medical diagnoses and medical care and treatment of [the child]." When the doctor was alone with the child, the doctor repeated she was a "doctor who takes care of girls and boys and will talk to [the child] to see if she has any worries or questions about her body or the health of her body." In response, the child acknowledged she was there "to talk about what she told her (maternal) grandmother." She related the details of her stepfather's abusive conduct, including his sometimes touching her buttocks in front of her mother, who knew what was going on but was drinking and said nothing.
The trial court admitted the doctor's report, finding the doctor's statements to the child and her grandmother, as recorded in the report, established the child's statements were made in good faith for purposes of medical diagnosis or treatment, and thus were admissible under N.J.R.E. 803(c)(4). The court stated it would consider only the statements made by the child "for diagnosis purposes." The court also stated, "any conclusions that are made, any information from the Social Worker, anything along those lines I'm not considering because they would be hearsay and possibly requiring an expert to come in."
Defendant asserts the CPC report was not made for purposes of medical diagnosis or treatment, but rather "was clearly prepared for litigation," and therefore inadmissible. Defendant further asserts the child did not "articulate a cognizable understanding of the purpose of the evaluation," that is, she did not understand the doctor was seeking information from her for purposes of a medical evaluation or treatment. Lastly, defendant asserts the consultation's purpose was duplicative of the purpose of the psychosocial evaluation. Defendant argues that such a duplicative purpose demonstrates the CPC medical report was "an attempt by the Division to gather further evidence."
The question of whether the report was admissible under N.J.R.E. 803(c)(4) presented a close call. As defendant has pointed out, the report was prepared after the Division had filed its complaint, and the report duplicated in part the psychosocial report. On the other hand, the doctor in her report stated the purpose of the visit was a medical evaluation, which she explained to both the child and the child's grandmother. Although the child's statement about why she was there could have been more specific, we cannot overlook that the doctor was dealing with a child, not an adult, and thus used language perhaps less explicit than she would have used had she been evaluating an older person. We also note defendant did not request a hearing under N.J.R.E. 104 to question either the doctor or the child about the purpose of the examination. Considering the totality of circumstances, we cannot conclude the trial court's ruling "was so wide of the mark that a manifest denial of justice resulted." Brown, supra, 170 N.J. at 147 (quoting Marrero, supra, 148 N.J. at 484).
There was ample corroborative evidence of the child's accounts of her mother's drinking. The child's statements to the CPC physician — subject to the limitations and exclusions stated by the trial court — were properly admitted as substantive evidence. In addition, the stepfather's crude comment, his recantation of his agreement to take a lie detector test when challenged by his wife, his leaving the house, and defendant's own belief that her child was telling the truth about being molested, all tend to corroborate the child's statements. Accordingly, we reject defendant's argument that the Division failed to prove inadequate supervision, the child having been molested during some of defendant's many drinking episodes. Defendant's remaining arguments are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION