NEW JERSEY LAWYER

DAILY BRIEFING      01/27/2005


News Briefs

NEW JERSEYANS FAVOR MANDATORY DRUG TREATMENT
Eighty percent of New Jerseyans surveyed favor mandatory treatment and community service rather than mandatory minimum prison terms for non-violent drug offenders, according to a poll by the Eagleton Center for Public Interest Polling at Rutgers University. Families Against Mandatory Minimums, the national group that commissioned the poll, said it would push for more matters to be handled in New Jersey drug courts and the elimination of required three-year jail terms for selling or buying drugs within 1,000 feet of a school. Drug courts, which began in 1995 and by last March were operating in all 21 counties, have so far ordered treatment, frequent testing and parole supervision for more than 4,400 low-level offenders arrested outside of drug-free zones. The courts boast a 73 percent success rate. 1-26-05

SECOND CIRCUIT OVERTURNS ROBING-ROOM SENTENCING
The 2nd U.S. Circuit Court of Appeals has overturned a guilty plea and sentence because senior U.S. District Judge Shirley Wohl Kram of the Southern District of New York accepted pleas and imposed sentences in the robing room. The ruling came in the cases of U.S. v. Goiry and U.S. v. Munoz, argued before separate panels last spring. Finding the robing room sessions violated the public’s qualified First Amendment right of access to criminal proceedings, the appeals court said it was exercising its rarely used “supervisory powers” to remand the cases for proceedings to be held in open court. “Holding these significant criminal proceedings behind closed doors — without notice to the public or any statements of reasons for the closure — is inconsistent with our open system of justice,” wrote Circuit Judge Chester J. Straub. That decision came the same day U.S. District Judge William H. Walls of New Jersey closed his Newark courtroom during the sentencing of Marlon Barrios, who had pleaded guilty to money-laundering. Walls acted on the request of the defense attorney, David Chidekel of New York, without providing notice or an opportunity to object. 1-26-05

DELAWARE HIGH COURT RULING COULD FREE NEARLY 200 LIFERS
A Delaware Supreme Court decision that some life sentences should be considered 45-year terms could free nearly 200 inmates serving life sentences for murder, rape and kidnapping. The decision, which has drawn impassioned protests from victims’ families and lawmakers, applies only to life-with-parole sentences handed down for crimes committed before Delaware clarified its sentencing laws in the mid-1990s. Before then, life with parole was considered a 45-year term for purposes of calculating good-time credit and setting a parole date, but prosecutors maintained that if an inmate were repeatedly denied parole, he could be held until death. The Supreme Court disagreed in deciding the case of Ward Evans, convicted of rape in 1982 and denied parole three times after being sentenced to life with possibility of parole. The ruling doesn’t affect inmates sentenced to life without parole for first-degree murder. 1-26-05

SUIT FEARS DRIVE SLED BANS, BUT WHY?
Towns throughout New Jersey have erected signs in their parks telling youngsters and others they can’t ride their sleds, toboggans and saucers on municipal slopes. The reason: They don’t want to be hit with suits like the one in Greenwich, Conn., where a local doctor won a $6.3 million jury award last April for a sledding accident in which he fell into a hole. The irony is that while they fixed the hole, Greenwich didn’t even think of banning sledding. “I don’t think we can afford to ban sledding. It’s part of what makes this town an attractive place to live,” The Philadelphia Inquirer quoted First Selectman Jim Lash as saying. True, they’re paying more for their insurance, but the quality-of-life issue prevails in Greenwich. Closer to home, in Phillipsburg, officials are enforcing a decade-old ban after a local youngster broke his leg hitting a pole and the township paid a $150,000 settlement. On the other hand, sledding still is encouraged in Moorestown, the birthplace of the Flexible Flyer. 1-26-05

$210,000 JUDGMENT FOR FAILURE TO CORRECT CREDIT REPORT
Matt Kirkpatrick has won a $210,000 civil judgment in U.S. District Court in Oregon against a credit reporting bureau he claims failed to correct his credit report after he proved he was the victim of identity theft. Kirkpatrick sued Equifax Information Services under the Fair Credit Reporting Act, claiming it generated poor credit reports, making him unable to obtain a home-improvement loan. Kirkpatrick claimed he learned in 2000 that his identity had been stolen and there were 30 false credit lines on his credit reports. After filing police reports in both Portland, Ore., and Coeur d’Alene, Idaho, and contacting his legitimate creditors, he mailed proof of the identity theft to Equifax, which four times denied it received anything. 1-26-05



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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, JANUARY 26, 2005
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, JANUARY 26, 2005:

SENTENCING
STATE v. JOHNSON
New Jersey Supreme Court, A-7, January 26, 2005. (21 pages). Facts-on-Call Order No. 92277

Being subject to the mandatory period of parole supervision under the No Early Release Act was a direct, penal consequence of the defendant’s plea to three counts of second-degree aggravated assault. Because the defendant was not informed about the consequences of being subject to NERA’s fixed period of parole ineligibility, he was entitled to seek vacation of his plea.

SENTENCING
STATE v. ROSADO
New Jersey Supreme Court, A-8, January 26, 2005. (4 pages). Facts-on-Call Order No. 92278

Consistent with the holding of the companion case of State v. Johnson, — N.J. — (2005), the defendant was entitled to seek vacation of his plea because he was not informed about a five-year period of parole ineligibility under the No Early Release Act.

THE SUPREME COURT has announced that it will release an opinion in CAPLAN v. CAPLAN, A-57, on January 27, 2005. The issue on appeal in Caplan addresses whether the court could impute income to a non-working party to establish that party’s support obligations in a divorce action in which the parties’ combined unearned income was sufficient to maintain the marital lifestyle.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON WEDNESDAY, JANUARY 26, 2005

NOT APPROVED FOR PUBLICATION
 
NO OPINIONS NOT APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON WEDNESDAY, JANUARY 26, 2005

THE FOLLOWING OPINIONS NOT APPROVED FOR PUBLICATION HAVE BEEN RELEASED:


LANDLORD AND TENANT
MILLER v. JAMES
Appellate Division, A-3894-03T2, January 25, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17550

Special Civil Part judgment awarding the plaintiff tenant $1,950 on his claim that the defendant landlords had wrongfully withheld his security deposit affirmed; the defendants sent the plaintiff a notice that he was in violation of the lease and asked him to vacate the premises within 30 days; the plaintiff vacated the premises, but he did not receive his security deposit back; the defendants maintained that they withheld the security deposit because the plaintiff had damaged the premises; the record supported the Special Civil Part’s findings that the plaintiff was more credible than the defendants, that the defendants had presented photos but that they were not of the apartment that the plaintiff had rented, and that the plaintiff therefore was entitled to double his security deposit.

PUBLIC EMPLOYEES
IN RE PATERNO
Appellate Division, A-660-03T3, January 25, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17551

Merit System Board’s determination that the petitioner had failed to establish residency in Newark as of July 1994 and that he therefore was ineligible for appointment as a Newark firefighter affirmed; N.J.A.C. 4A:4-2.11(c) provides that, if there is a residency requirement, it must be met by the announced closing date of the examination, and residency must be maintained continuously from the closing date to the date of appointment; the closing date for the exam was July 1994, and the petitioner was placed on the eligible list on May 7, 1999; the petitioner’s address on the eligible list was a Belleville address, which was the address that he had supplied to the Department of Personnel; on his investigation questionnaire, the petitioner responded that he lived at two Newark addresses from 1993 to present; the evidence of residency presented by the petitioner was “remarkably wanting” where it consisted mostly of “self-serving affidavits that lacked any corroboration” and contained the deficiencies noted by the Board; the Board’s decision was not arbitrary, capricious, or unreasonable, and the petitioner’s failure to meet his burden of proof was “manifest.”

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. L.M.
Appellate Division, A-5764-03T4 and A-5765-03T4, January 25, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17552

Termination of the defendant parents’ rights to their two children affirmed; the parents were drug abusers and were initially resistant to DYFS’s efforts to provide substance abuse treatment; the children had been placed in foster care at early ages; the parents had “difficulty complying with the law,” and the father was incarcerated at the time of trial; the Family Part properly concluded that DYFS had met its burden under N.J.S.A. 30:4C-15.1a; the possibility of being able to return the children to their mother and the possibility that the father’s mother would be able to care for the children both were “unacceptable alternatives” to terminating their parental rights.

UNEMPLOYMENT COMPENSATION
CRUZ v. BOARD OF REVIEW, DEPARTMENT OF LABOR
Appellate Division, A-3940-03T3, January 25, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17553

Board of Review’s determination finding the petitioner ineligible for unemployment benefits because he voluntarily left his job without good cause attributable to the work affirmed; contrary to the petitioner’s assertion, he was not “forced to resign” after his employer gave him an “insulting,” minuscule pay raise because there was no evidence that the employer was contractually obligated to increase his salary more than it did; although the petitioner may have been dissatisfied with the administrative process followed by the Board of Review and the Appeal Tribunal, he received a fair hearing, and there was no basis for further proceedings.

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