NEW JERSEY LAWYER

DAILY BRIEFING      01/21/2005


News Briefs

STATE’S FIRST INSPECTOR GENERAL APPOINTED
Fulfilling his promise to create the post of inspector general, acting Gov. Richard J. Codey Thursday appointed a seasoned expert on fraud probes and a former deputy attorney general to the new position. He named Mary Jane Cooper, a member of the Skillman-based corporate-integrity law firm Stier Anderson & Malone who has focused on complex fraud investigations. He described the veteran lawyer as “a professional, not a politician,” noting the appointment is part of his effort to restore the public’s confidence in government integrity. A graduate of Rutgers Law School-Camden, Cooper served nine years as a deputy attorney general, prosecuting white-collar crimes and serving as the chief attorney for a special unit probing organized crime on the New Jersey waterfront. At Stier Anderson, Cooper has led the firm’s independent investigations into allegations of sexual harassment and discrimination. 1-20-05

LAWMAKER SEEKS ACTION ON PRISON GANGS
A New Year’s Day brawl between guards and members of the Bloods street gang at Bayside State Prison in Cumberland County has prompted Assemblyman Jeff Van Drew (D-Cape May) to draft a bill that would create a gang-violence task force. It would include current and former corrections officers, gang experts and other specialists. The assemblyman is pushing for a full-scale review of the Department of Corrections’ operating policy, “especially as it relates to gangs.” In addition to studying such issues as training, intelligence gathering and weapons searches, the proposed task force would explore equipping guards with safety vests and using isolation units to punish unruly inmates. Noting Bayside didn’t use its isolation unit, Van Drew said inmates there might have been “more willing to get involved in a confrontation” because they knew they wouldn’t be sent to isolation. 1-20-05

LOCAL ‘PAY-TO-PLAY’ LAW COMES HOME TO ROOST
The Manalapan Township Committee will be in Monmouth County Superior Court Monday to defend itself against charges that it hired professionals — including the municipal attorney — in violation of its own pay-to-play ordinance. Manalapan Democrats, who lost their majority in November’s election, sued, claiming the municipal attorney, auditor and engineering firm all contributed to the victorious Republican candidates. The contributions, they said, were indirect, through political action committees. Township Attorney Stuart J. Moskovitz was quoted in the Asbury Park Press as saying the text of the ordinance says it applies only to contributions from current vendors, not prospective ones, such as himself and the others hired by the committee. Democratic Mayor William Scherer has promised a rewrite of the ordinance. 1-20-05

BILL ALLOWS RECALL OF OAL, COMP JUDGES
Acting Gov. Richard J. Codey signed A-3088 into law this week, which allows retired administrative law and workers compensation judges to be recalled. The law took effect immediately and specified such recalled judges could serve only until age 80. 1-20-05

FLORIDA COURT WON’T ACCEPT GAY COUPLE’S MASSACHUSETTS WEDDING
In a ruling believed the first of its kind, a federal judge for the Middle District of Florida has struck down a lawsuit by two women who married last July in Massachusetts and sought to have their union recognized in Florida. Attorneys for Nancy L. Wilson and Paula Schoenwether, a couple for 27 years, argued the 1996 federal Defense of Marriage Act that lets states ban same-sex marriages, as well as the Florida law banning gay marriage, discriminate on the basis of sexual orientation and deny a fundamental right to marry. But Judge James S. Moody disagreed, citing governmental interest in allowing states to ban same-sex marriages to encourage “stable relationships” for raising children. The couple will appeal, according to Wright. 1-20-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, JANUARY 20, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, JANUARY 20, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, JANUARY 21, 2005.


APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON WEDNESDAY, JANUARY 19, 2005.

NOT APPROVED FOR PUBLICATION
 
NO OPINIONS NOT APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON THURSDAY, JANUARY 20, 2005.

THE FOLLOWING OPINIONS NOT APPROVED FOR PUBLICATION HAVE BEEN RELEASED:


DRUNK DRIVING
STATE v. SNODGRASS
Appellate Division, A-281-04T1, January 19, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17532

Law Division judgment of acquittal of driving while intoxicated reversed and remanded to the Municipal Court for execution of the sentence; the arresting officer testified in the Municipal Court that he had stopped the defendant’s vehicle because he reasonably believed that the defendant was not wearing a seat belt; the defendant pleaded guilty to driving while intoxicated in the Municipal Court, but the Law Division acquitted him on appeal because it found the officer’s testimony to be incredible; the Law Division erred (1) because its determination that there were “material” inconsistencies in the officer’s description of the defendant’s vehicle was not supported by the record and (2) because the record supported the inference that a portion of the seat belt in the defendant’s vehicle would have been visible to the officer if it had been in use.

MOTOR VEHICLES
LERMAN v. LEGREIDE
Appellate Division, A-2742-03T5, January 19, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17530

Dismissal of the plaintiff’s complaint for lack of jurisdiction and failure to state a claim affirmed; the Division of Motor Vehicles suspended the plaintiff’s driving privileges after he did not respond to a Randolph Township summons for failing to stop before entering an intersection; the plaintiff sued the Director of the Division, seeking a declaration that the procedures used to suspend his driving privileges were null and void as well as the restoration of his driving privileges; the Law Division properly dismissed the complaint (1) because it should have been filed directly with the Appellate Division, (2) because the procedures used by the Township were consistent with Rule 7:8-9(b)(1), and (3) because the Division’s actions were authorized by N.J.S.A. 39:5-30; contrary to the plaintiff’s argument, §39:5-30 is not penal and must be construed liberally.

MOTOR VEHICLES
STATE v. RAVANSHAD
Appellate Division, A-5087-03T5, January 19, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17533

Conviction of tailgating affirmed; a police officer testified that the defendant was driving approximately 50 mph at a distance of approximately one car length from the SUV in front of him in light traffic; in determining that the defendant had not driven at a reasonable or prudent distance from the SUV, the Municipal Court and the Law Division (1) rejected the defendant’s testimony that traffic was medium and that he was driving 40 or 45 mph at a distance of two or three vehicle lengths from the SUV and (2) relied on a manual of driving instructions providing that a driver should maintain a distance of one car length from the car in front of him for every 10 mph; the Law Division’s findings were supported by the record where the defendant’s challenge to the officer’s credibility was “unconvincing” and where the defendant did not offer any evidence to contradict the manual.

MENTAL HEALTH
IN RE CIVIL COMMITMENT OF J.J.G.
Appellate Division, A-988-02T2, January 19, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17531

Order continuing the commitment of the appellant pursuant to the Sexually Violent Predator Act affirmed; between 1971 and 1992, the appellant was convicted five times for sexual offenses involving children; the record was sufficient to support the appellant’s continued commitment, even though the State’s psychiatrist testified that the appellant was “likely” to reoffend rather than “highly likely” to reoffend, which is the language used by the New Jersey Supreme Court in In re Commitment of W.Z.

PAROLE
NUDGE v. NEW JERSEY STATE PAROLE BOARD
Appellate Division, A-4957-03T2, January 19, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17534

Final decision of the New Jersey State Parole Board denying the appellant inmate parole and establishing a 23-month future eligibility term affirmed; the two-member panel denied parole and established a 23-month future eligibility term based on the appellant’s “extensive” and “repetitive” criminal record, his previous failed opportunities at community supervision, and his previous attempt at community supervision that was revoked because he had committed new offenses; the Board affirmed the panel’s decision; the appellant’s contentions on appeal did not warrant discussion in a written opinion, and the Appellate Division affirmed substantially for the reasons expressed by the Board.

CRIMINAL TRIALS
STATE v. SHORTS
Appellate Division, A-5023-02T4, January 19, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17535

Conviction of sexual assault affirmed; the defendant asserted that the prosecutor had improperly cross-examined him by “attempting to coerce him” into characterizing the victim and her mother as liars; the case law provides that a prosecutor may not ask a defendant on cross-examination whether the State’s witnesses were lying when they gave testimony that contradicted the defendant’s testimony; although the prosecutor’s cross-examination was improper, it was not “so egregious that it deprived defendant of a fair trial” (1) where the State had presented “overwhelming evidence” of the defendant’s guilt, (2) where the testimony of the defendant and the State’s witnesses were “irreconcilable,” (3) where the prosecutor did not mischaracterize the testimony of the victim and her mother during the cross-examination of the defendant, and (4) where the defendant’s failure to object deprived the trial court of the opportunity to give a curative jury instruction and suggested that defense counsel did not consider the questions to be prejudicial.

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