                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION


                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-2852-17T3

STATE OF NEW JERSEY,

     Plaintiff-Appellant,
                                      APPROVED FOR PUBLICATION
v.
                                             October 23, 2019
SHANGZHEN HUANG,
                                          APPELLATE DIVISION

     Defendant-Respondent.
_____________________________

           Argued September 13, 2018 – Decided October 22, 2018

           Before Judges Fuentes, Accurso and Moynihan
           (Judge Fuentes dissenting).

           On appeal from the Superior Court of New Jersey, Law
           Division, Middlesex County, Indictment No. 17-10-
           1138.

           Nancy A. Hulett, Assistant Prosecutor, argued the cause
           for appellant (Andrew C. Carey, Middlesex County
           Prosecutor, attorney; Nancy A. Hulett, of counsel and
           on the briefs).

           Philip Nettl argued the cause for respondent (Benedict
           and Altman, attorneys; Joseph J. Benedict and Philip
           Nettl, on the brief).

     The opinion of the court was delivered by

MOYNIHAN, J.A.D.
      The State of New Jersey appeals from the dismissal of an indictment

charging defendant with second-degree vehicular homicide of a child, N.J.S.A.

2C:11-5 (count one) and fourth-degree assault by auto of the child's mother,

N.J.S.A. 2C:12-1(c)(1) (count two) arising from a tragic motor vehicle incident.

The State argues the motion judge abused his discretion in dismissing the

indictment because it presented a prima facie case that defendant was reckless

when he turned his vehicle onto a four-lane highway from a commercial

driveway, left the roadway and sheared two street signs before crashing into a

concrete planter. A metal support from one of the signs hit a six-year-old child

in the head, causing trauma that led to his death. The child's mother, who was

walking with him, suffered internal injuries when she was struck by a piece of

sheared metal. Reviewing the motion judge's decision to dismiss the indictment

for abuse of discretion, State v. Hogan, 144 N.J. 216, 229 (1996), and

recognizing that the judge's exercise of discretion will not be disturbed on appeal

unless there is a clear abuse of discretionary authority, State v. Saavedra, 222

N.J. 39, 55-56 (2015), we agree the State presented sufficient evidence to the

grand jury to sustain both counts of the indictment and reverse.




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                                        2
      The statutes pertaining to both counts of the indictment require the State

to prove the element that defendant drove a vehicle recklessly.1 Defendant

contends, and the motion judge concluded, the evidence presented to the grand

jury failed to establish recklessness. 2 That evidence included a detective's

testimony that the data recorder from defendant's vehicle recorded the rate of

acceleration during the attempted left turn onto the highway.        Defendant's

vehicle reached seventy-two percent acceleration .65 seconds prior to the impact

with the planter. The rate of travel ranged from an idling speed of 3.1 miles-

per-hour to a maximum speed of 37.3 miles-per-hour .15 seconds prior to

impact. The maximum speed was reached after 4.65 seconds. The recorder also

showed that defendant never applied the brakes. A report placed in evidence at

the presentment contained the information from the recorder. The detective,

describing the seventy-two percent acceleration rate, said defendant pressed the




1
   N.J.S.A. 2C:11-5(a) provides in part: "Criminal homicide constitutes reckless
vehicular homicide when it is caused by driving a vehicle or vessel recklessly."
N.J.S.A. 2C:12-1(c)(1) provides in part: "A person is guilty of assault by auto
. . . when the person drives a vehicle . . . recklessly and causes either serious
bodily injury or bodily injury to another."
2
  Defendant does not contend that the State failed to establish other elements of
either crime.


                                                                         A-2852-17T3
                                       3
accelerator "about three-quarters the way to the floor." The speed limit on the

highway defendant entered was forty miles-per-hour.

      The State presented a video to the grand jury – also described by the

detective in testimony – that showed defendant's vehicle enter the highway after

observing constant traffic for approximately twenty-seven seconds. A car was

in sight approaching from defendant's driver side when defendant accelerated

from a standing position with his front tires on the sidewalk and rear tires on the

pavement of the parking lot from which he exited. Defendant crossed all four

lanes of the highway veering toward the sidewalk. He mounted the curb on the

side of the road opposite the driveway from which he set out and drove with the

driver-side wheels on the sidewalk and passenger-side wheels on the front yard

of a structure, shearing both signs and hitting the planter.     The vehicle then

entered an intersection, still driving parallel to the highway. After crossing the

intersecting street, hitting curb-side items along his route, he reentered the

highway and traversed all four lanes, disappearing from view without ever

stopping.

      The State also presented evidence that defendant ultimately crashed his

car into a tree on the same side of the highway on which he began his first turn.

The detective also testified that the driver of a car travelling on the roadway


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                                        4
when defendant turned told the detective that he had to switch lanes to avoid

defendant's vehicle which, he said, was travelling at a high rate of speed.

      The motion judge was compelled to view this evidence under the standard

prescribed by our Supreme Court and determine:

            "whether, viewing the evidence and the rational
            inferences drawn from that evidence in the light most
            favorable to the State, a grand jury could reasonably
            believe that a crime occurred and that the defendant
            committed it." State v. Morrison, 188 N.J. 2, 13 (2006)
            (citing State v. Reyes, 50 N.J. 454, 459 (1967)). A
            court "should not disturb an indictment if there is some
            evidence establishing each element of the crime to
            make out a prima facie case." Id. at 12 (citing Hogan,
            144 N.J. at 236, State v. Vasky, 218 N.J. Super. 487,
            491 (App. Div. 1987)).

            [Saavedra, 222 N.J. at 56-57.]

We determine that the evidence presented by the State and the rational

inferences from that evidence, viewed in the State's favor, established the

element of defendant's reckless operation of the vehicle. The record was not

bereft of evidence of the necessary element, and the motion judge abused his

discretion in dismissing the indictment.

      The detective testified that defendant's passenger told him that defendant

enjoyed the feeling of acceleration to the point of feeling his back pushed against

the seat, thus establishing defendant's familiarity with the effect of acceleration


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                                        5
on a driver. Defendant's acceleration onto the highway, his loss of control, and

the degree to which he lost control – never braking, stopping only after hitting

a tree – sufficiently established that he "was aware that he was operating a

vehicle in such a manner or under such circumstances as to create a substantial

and unjustifiable risk of death" to the child, Model Jury Charges (Criminal),

"Vehicular Homicide (N.J.S.A. 2C:11-5)" (rev. June 14, 2004), and "serious

bodily injury" to the child's mother, Model Jury Charges (Criminal), "Assault

by Auto or Vessel (N.J.S.A. 2C:12-1(c))" (approved June 14, 2004); and "that

the defendant consciously disregarded this risk and that the disregard of the risk

was a gross deviation from the way a reasonable person would have conducted

himself in the situation."3 Model Jury Charges (Criminal), "Vehicular Homicide

(N.J.S.A. 2C:11-5)"; Model Jury Charges (Criminal), "Assault by Auto or



3
    N.J.S.A. 2C:2-2(b)(3) defines recklessness for purposes of the Code:

              A person acts recklessly with respect to a material
              element of an offense when he consciously disregards
              a substantial and unjustifiable risk that the material
              element exists or will result from his conduct. The risk
              must be of such a nature and degree that, considering
              the nature and purpose of the actor's conduct and the
              circumstances known to him, its disregard involves a
              gross deviation from the standard of conduct that a
              reasonable person would observe in the actor's
              situation.
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                                         6
Vessel (N.J.S.A. 2C:12-1(c))". Whether or not a jury finds the State established

these elements beyond a reasonable doubt is not the question before us. We

conclude only that there was some evidence before the grand jury establishing

the element of recklessness to warrant denial of defendant's motion to dismiss

the indictment.

      In his merits brief, defendant mentions the detective's misleading

testimony about the passenger's statement. He does not argue that improper

testimony necessitated dismissal of the indictment; only that

            the court found that [the detective's] misleading
            testimony about [the passenger] was not clearly
            exculpatory, and therefore was not relied upon in
            dismissing the indictment.        Rather, [d]efendant's
            acceleration and speed, which was essentially all the
            State presented, "by itself, is not the type of conduct
            that in [the motion judge's] view would constitute
            recklessness."

As such, we will not consider the detective's alleged misleading testimony as a

ground for dismissing the indictment. 539 Absecon Blvd., L.L.C. v. Shan

Enters. Ltd. P'ship, 406 N.J. Super. 242, 272 n.10 (App. Div. 2009)

(noting claims that have not been briefed are abandoned on appeal).

      We also determine defendant's other arguments: the State's failure to

appeal the dismissal of a prior indictment handed down against defendant in

connection with this same incident bars this appeal under the doctrine of res

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                                       7
judicata; and the State's failure to present any additional inculpatory evidence

to the second grand jury requires the same result as the prior motion to dismiss

– which were either not raised to or not addressed by the motion judge – to be

without sufficient merit to warrant discussion here. R. 2:11-3(e)(2). We add

only that in granting defendant's motion to dismiss a prior indictment against

defendant, the judge specified that same was without prejudice and told the

assistant prosecutor, "You can re-present." The State, in presenting its case to

the second grand jury, addressed errors which the judge found justified dismissal

of the first indictment: what the judge termed, the detective's "misleading, if

not false response, to a grand juror's question" about defendant's medical

condition. Before the second grand jury, the State also narrowed the charges

presented from five to two, presented medical records and reports, as well as an

insurance report submitted by defense counsel indicating defendant's medical

complaints. The second presentment, which corrected the errors that led to the

judge's first dismissal, was not improper; the first dismissal had no bearing on

the State's right to appeal the second dismissal.

      Reversed and remanded for further proceedings under the indictment.




                                                                         A-2852-17T3
                                        8
___________________________________

FUENTES, P.J.A.D., dissenting.

      A Middlesex County grand jury returned an indictment against defendant

Shangzhe Huang, charging him with second degree vehicular homicide, N.J.S.A.

2C:11-5(a), and fourth degree assault by auto under N.J.S.A. 2C:12-1(c)(1).

Both counts of the indictment require the State to present "some evidence

establishing each element of the crime to make out a prima facie case." State v.

Saavedra, 222 N.J. 39, 57 (2015) (quoting State v. Morrison, 188 N.J. 2, 12

(2006)). My colleagues in the majority have concluded that the State has

satisfied this burden. I disagree and therefore respectfully dissent.

      Under N.J.S.A. 2C:11-5(a), "[c]riminal homicide constitutes reckless

vehicular homicide when it is caused by driving a vehicle or vessel recklessly."

(Emphasis added). N.J.S.A. 2C:12-1(c)(1) defines "assault by auto" as driving

a motor vehicle "recklessly" and causing "either serious bodily injury or bodily

injury to another." (Emphasis added). In his decision to dismiss the indictment,

the trial judge aptly noted that "the issue in this case is recklessness." The

Criminal Code defines "recklessly" as follows:

            A person acts recklessly with respect to a material
            element of an offense when he consciously disregards
            a substantial and unjustifiable risk that the material
            element exists or will result from his conduct. The risk
            must be of such a nature and degree that, considering
            the nature and purpose of the actor's conduct and the
            circumstances known to him, its disregard involves a
            gross deviation from the standard of conduct that a
            reasonable person would observe in the actor's
            situation.   "Recklessness," "with recklessness" or
            equivalent terms have the same meaning.

            [N.J.S.A. 2C:2-2(b)(3) (Emphasis added).]

The Legislature listed four examples of conduct that, if proven, a jury could rely

on to infer a defendant was operating a motor vehicle recklessly:

            [(1)] defendant fell asleep while driving or was driving
            after having been without sleep for a period in excess
            of 24 consecutive hours[;] . . . [(2)] defendant was
            driving while intoxicated in violation of [N.J.S.A.]
            39:4-50[;] . . . [(3)] defendant was operating a hand-
            held wireless telephone while driving a motor vehicle
            in violation of [N.J.S.A.] 39:4-97.3[;] . . . [and (4)]
            defendant failed to maintain a lane in violation of
            [N.J.S.A.] 39:4-88.

            [N.J.S.A. 2C:11-5(a).]

The Legislature cautioned, however, that "[n]othing in this section shall be

construed to in any way limit the conduct or conditions that may be found to

constitute driving a vehicle . . . recklessly." Ibid.   See State v. Stanton, 176

N.J. 75, 85 (2003) (in which the Court noted that "excessive speed, weather and

lighting conditions, and known substantial safety defects in the motor vehicle or

vessel" may also be considered to determine whether the defendant was driving

recklessly at the time of the incident.)


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                                           2
      In State v. Campfield, 213 N.J. 218 (2013), the Court reviewed the history

of "recklessness" as defined in N.J.S.A. 2C:2-2(b)(3), to determine the adequacy

of the factual basis the defendant provided when he pleaded guilty to second

degree reckless manslaughter. 1     Writing for the majority of the Court in

Campfield, Justice Patterson specifically noted the comments made by the

drafters of the Criminal Code related to the meaning and application of reckless

conduct:

            As the Code uses the term, recklessness involves
            conscious risk creation. It resembles acting knowingly
            in that a state of awareness is involved but the
            awareness is of risk that is of probability rather than
            certainty; the matter is contingent from the actor's point
            of view. Whether the risk relates to the nature of the
            actor's conduct or to the existence of the requisite
            attendant circumstances or to the result that may ensue
            is immaterial; the concept is the same. The Code
            requires, however, that the risk thus consciously
            disregarded by the actor be substantial and
            unjustifiable; even substantial risks may be created
            without recklessness when the actor seeks to serve a
            proper purpose. Accordingly, to aid the ultimate
            determination, the Code points expressly to the factors
            to be weighed in judgment: the nature and degree of the
            risk disregarded by the actor, the nature and purpose of
            his conduct and the circumstances known to him in
            acting.

1
   Under N.J.S.A. 2C:11-4(b), "Criminal homicide constitutes manslaughter
when: (1) It is committed recklessly; or (2) A homicide which would otherwise
be murder under section 2C:11-3 is committed in the heat of passion resulting
from a reasonable provocation."
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                                        3
            [Id. at 232-33 (quoting II The New Jersey Penal Code:
            Final Report of the New Jersey Criminal Law Revision
            Commission, commentary to § 2C:2-2, at 41-42 (1971))
            (emphasis added).]

      Here, the State presented to the grand jury the testimony of Middlesex

County Prosecutor's Office (MCPO) Detective Donald Heck; a surveillance

video recording that depicts the incident; a number of photographs derived from

the video record that show various stages of the wreckage created after

defendant's car comes to a stop; a forty-two page document identified by the

prosecutor as defendant's medical records containing the results of diagnostic

tests, and a report authored by defendant's physician in which he opines that at

the time of the incident, defendant was suffering from a "basilar artery migraine

causing the warning symptoms of dizziness, whiting out of vision, then loss of

consciousness. A possible cause of this migraine was consuming MSG at a

Chinese restaurant."

      The record developed before the grand jury shows the following

undisputed facts. The incident occurred on January 16, 2016 on Route 27, a/k/a

Raritan Avenue, located in the Borough of Highland Park, Middlesex County; it

was a cloudy day and "the temperature was in the low to mid-forties" degrees

Fahrenheit. The road and the air were both dry. Route 27 is a four-lane roadway,


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                                       4
consisting of two northbound lanes and two southbound lanes; the posted speed

limit is forty miles per hour. Defendant was twenty-one years old at the time of

this incident.       He was driving a 2013 Lexus GS350 sedan; there was one

passenger seated in the front passenger seat. Defendant and the passenger had

just finished eating at a Chinese restaurant located in a commercial strip of land

adjacent to Route 27. The incident occurred as defendant exited the driveway

of this commercial strip to make a lawful left turn onto Route 27.

           After showing the surveillance video recording of the incident to the grand

jury, the prosecutor asked Detective Heck to "describe what we've just seen

. . . ."

                 DETECTIVE HECK: As the Lexus leaves the parking
                 lot, he fails to negotiate a full left turn. The vehicle
                 mounts the curb on the far side of the highway. It then
                 comes in contact with the street sign. That is one of the
                 metal signs that - - I believe it was for a bus stop
                 notification that there was a bus stop in the area. It
                 sheared that sign at the base. There was a second metal
                 sign that was also sheared, as well as a concrete planter
                 that was used as a garbage holder.

                 After he made contact with all three . . . of those objects,
                 [the mother] and her child came down from Columbia
                 and were right at the intersection on . . . the sidewalk
                 there, where one of the street sign support posts made
                 contact with [the mother] in her right side of her
                 abdomen. Unfortunately the street sign post also made
                 contact with the child's head causing massive head
                 trauma to the child. [Defendant's] vehicle then crosses

                                                                                A-2852-17T3
                                              5
            back over the four lanes of Route 27, comes down to a
            . . . residence on the opposite side of the highway and
            comes to rest after he struck a tree.

            [Emphasis added).]

      It is also undisputed that defendant was not under the influence of alcohol,

narcotics, or any other substance or medication that would impair his judgment

or ability to safely operate the car. He was not sleep-deprived or using a cellular

phone at the time he "fail[ed] to negotiate" a lawful left turn onto Route 27.

Detective Heck also acknowledged that "there were no notable deficiencies in

the operating condition of the vehicle." Detective Heck testified that defendant's

car "was equipped with a crash data recorder," commonly referred to as a "black

box." Detective Heck retrieved and reviewed the information recorded by this

device. He testified that the data showed defendant's maximum speed was "37.3

miles per hour at .15 seconds prior to impact."         Stated differently, when

defendant first struck the metal bus notification signs, he was traveling below

the forty miles per hour speed limit allowed at Route 27.

      This is the second indictment the trial judge has dismissed in this matter.

On May 15, 2017, the judge granted defendant's motion, and dismissed without

prejudice the first indictment.     In granting the first motion to dismiss the

indictment, the judge found "the acceleration speed of defendant's vehicle in


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                                        6
merging into traffic, in and of itself, was not the type of conduct that necessarily

reveals a conscious disregard for risk to others." The judge noted that Detective

Heck testified

            [that] as defendant made a left turn, he accelerated into
            traffic from an idling speed of 3.1 miles per hour to a
            maximum speed of 37.3 miles per hour within 4.65
            seconds.      The detective stated that defendant's
            acceleration reached 72 percent of the full engine
            throttle and that defendant never hit the brakes.

      The only material difference between the State's presentation to the first

grand jury and the presentation to the second grand jury concerns statements the

passenger allegedly made to Detective Heck, when Heck questioned him long

after the accident. The following questions by the prosecutor underscore the

importance of this evidence.

            Q. [The passenger] indicated to you that . . . he's known
            [defendant] for a while; correct?

            A. Yes.

            Q. Okay, and he's been in the car before when
            [defendant] was driving; right?

            A. Yes.

            Q. Okay, and did he tell you anything about how he
            drives?

            A. He did; yes.


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                                         7
            Q. Okay, he in fact enjoyed - - told you that . . .
            [defendant] enjoys the feeling of acceleration; correct?

            A. Yes.

            Q. Okay, do you recall anything else that he said
            generally about that?

            A. He says [defendant] enjoys the feeling of the rush of
            getting thrown back into the seat when he steps on the
            gas pedal from a start.

      The trial judge took issue with this testimony from Detective Heck based

on a number of grounds. The judge first noted the passenger had only told

Detective Heck that "defendant stomped on the gas pedal while he was in the

vehicle on one of three occasions." The judge thus found Detective Heck's

testimony misleading because he never asked the passenger to clarify the

circumstances under which defendant allegedly drove in this fashion nor

ascertained with greater accuracy how frequently defendant engaged in this

manner of acceleration. Finally, the State did not disclose to the second grand

jury that the passenger "initially stated the defendant was not driving fast out of

the restaurant parking lot."

      The Supreme Court recently reaffirmed the standard of review a court

must apply to decide a motion to dismiss an indictment.

            On a motion to dismiss a criminal indictment, a court
            "view[s] the evidence and the rational inferences drawn

                                                                           A-2852-17T3
                                        8
             from that evidence in the light most favorable to the
             State." A criminal indictment is proper if the State
             presented the grand jury with at least "'some evidence'
             as to each element of a prima facie case." A trial court's
             denial [or grant] of a motion to dismiss an indictment
             is reviewed for abuse of discretion.

             [State v. Twiggs, 233 N.J. 513, 544 (2018) (internal
             citations omitted).]

      Here, the trial judge carefully reviewed the entire record, applied the

relevant legal standard, and came to the conclusion that the State failed to

establish defendant drove his car on January 16, 2016 in a manner that shows a

conscious disregard of a known risk. I conclude the trial judge's decision is

supported by the record and constitutes a proper exercise of his discretionary

authority under the relevant legal standard. The State did not present sufficient

evidence to establish that the manner defendant drove his car as he exited the

parking lot to turn left onto Route 27 amounted to a gross deviation from the

standard of conduct that a reasonable person would observe in this situation.

Defendant's failure to negotiate this turn may amount to a finding of negligence

in a civil trial, but it does not ipso facto satisfy the recklessness standard defined

in N.J.S.A. 2C:2-2(b)(3).

      Even when viewed through the prism of the indulgent standard our

Supreme Court reaffirmed in Twiggs, this record is not legally sufficient to


                                                                              A-2852-17T3
                                          9
expose defendant to criminal prosecution. In his description of what occurred,

Detective Heck accurately characterized defendant's conduct as a "[failure] to

negotiate" a left turn. Defendant's car veered out of control and crashed into one

of the metal "bus stop notification" signs. The force of the collision sheared the

sign at the base. The car then crashed into a garbage container encased in

concrete; triggering an unforeseeable, catastrophic chain of events that caused

pieces of debris to behave like deadly shrapnel. The vehicle then crossed back

over Route 27 and, in the words of Detective Heck, "[came] to rest after" it

struck a tree. The video recording shows the entire incident was over in a matter

of seconds.

      Defendant was not cited for violating the rules of the road codified in Title

39. The State did not present any evidence from which a reasonable member of

this grand jury could have rationally inferred defendant drove his car in a

reckless manner. This was a tragic accident, not a criminal act.

      I am also deeply troubled by the State's decision to present the passenger's

statements describing defendant's alleged predilection for acceleration. This

testimony by Detective Heck was highly prejudicial and would have been

palpably inadmissible in a future trial under N.J.R.E. 404(b) because it was

clearly offered by the State "to prove the disposition of a person in order to show


                                                                           A-2852-17T3
                                       10
that such person acted in conformity therewith."         I acknowledge that this

statement is not per se inadmissible in the context of a grand jury proceeding.

See State v. Scherzer, 301 N.J. Super. 363, 428 (App. Div. 1997). However, the

presentation of this highly prejudicial, facially incompetent evidence had the

capacity to substantially influence the grand jury's decision to indict defendant

and created "'grave doubt' that the determination ultimately reached was arrived

at fairly. . . ." State v. Engel, 249 N.J. Super. 336, 360 (App. Div. 1991). This

tactic is also patently inconsistent with basic principles of fundamental fairness.2

      Writing for a unanimous Court in State v. Hogan, 144 N.J. 216, 236

(1996), Justice Stein emphasized that "[o]ur State Constitution envisions a grand

jury that protects persons who are victims of personal animus, partisanship, or

inappropriate zeal on the part of a prosecutor." The manner this case was

presented to the grand jury appears driven by "inappropriate zeal on the part of

the prosecutor." Ibid. Viewed in the light most favorable to the State, this tragic

occurrence bespeaks of civil negligence, not criminal recklessness. I would


2
  As Justice Pashman explained in State v. Sugar, 84 N.J. 1, 15 (1980),
fundamental fairness relates to "our concern for judicial integrity," which
"extends even to its mere appearance." Thus, "we have employed the notion of
fundamental fairness to strike down official action that does not itself violate
due process of law." Ibid. Given a clear need to redress a wrong, the doctrine
of "fundamental fairness on occasion requires that a court prohibit conduct that
does not transgress the Constitution." Ibid.
                                                                            A-2852-17T3
                                        11
affirm substantially for the reasons expressed by the trial judge in his thorough

and well-reasoned oral opinion delivered from the bench on January 19, 2018.




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                                      12
