NEW JERSEY LAWYER

DAILY BRIEFING      01/28/2005


News Briefs

SOUTH JERSEY JUDGE RETIRING
Beginning May 31, Superior Court Judge George H. Stanger will trade the job of assignment judge in Cumberland, Gloucester and Salem counties for gardening at his Stow Creek home and fishing on Delaware Bay. Only 16 of the state’s 441 Superior Court judges have been on the bench longer than his 22-year tenure, said Stanger, 62, assignment judge the past five years. He practiced law in Vineland and Bridgeton before joining the bench, serving in both family and criminal court. 1-27-05

LAWYERS INDICTED FOR MISUSING CLIENT FUNDS
Four attorneys who formerly practiced in Essex County were indicted on charges that acting Essex County Prosecutor Paula T. Dow calls a disgrace to the legal community. William E. Byer Jr., Michael Scoon, Richard Gruber and Anthony Nwaka allegedly embezzled thousands of dollars from clients, spending the stolen loot on food, credit card payments and other personal uses. Byer, whose office was in West Orange, and Gruber, formerly in Newark, already were disbarred, according to the prosecutor’s office and the Administrative Office of the Courts. Scoon, of Maplewood, and Nwaka, of East Orange, have been suspended. If convicted, they face prison terms ranging from five to 11.5 years, fines ranging from $15,000 to $150,000 and restitution. 1-27-05

JUVENILE JAIL FUNDING CENSUS RE-EXAMINED
The New Jersey Juvenile Justice Commission is seeking some other means of counting heads for educational funding purposes, now that its one-day census has come under suspicion. The Oct. 15 census is required by the state Department of Education, the same day students are counted in all schools here. But youth correctional facilities have been suspected of detaining boys and girls until the official tally date to beef up their numbers. The commission met recently with Education Department representatives to explore other ways to compute the correct amount of education money. “We’re recommending that one day in time does not become the incentive and initiative for the funding,” the Courier-Post quoted commission director Howard Beyer as saying. The Attorney General’s Office and the U.S. Attorney’s Office are investigating whether the Camden County Youth Center crossed the line in the October 2004 count. 1-27-05

DYFS ‘ON RIGHT TRACK’ WITH INCREASE IN ADOPTIONS
The Division of Youth and Family Services has reached a record level of adoptions, finalizing 1,383 in 2004, up from 1,014 in 2003 and 1,266 in 2002. “It’s a good sign we’re on the right track,” said Human Services Commissioner James M. Davy, noting, “Giving children permanency in safe, loving homes is the ultimate goal of a child welfare agency.” In addition, the case load has dropped to an average of 18 families per worker; it was triple that a year ago. Both improvements are part of a general overhaul of the troubled state agency, and officials emphasize that despite the progress, plenty of work remains. “Remember, we’re only six months into a five-year plan,” said Kathi Way, deputy commissioner of the Office of Children’s Services, adding, “It takes persistence and diligence.” 1-27-05

NOMINATIONS SOUGHT FOR WOMEN’S EQUALITY AWARDS
The Alice Paul Institute’s Equality Awards Committee annually honors lawyers and others who have demonstrated a strong and long-standing commitment to advancing women’s equality in New Jersey through advocacy, litigation, education, scholarship or artistic expression. Nominations for the awards, to be presented at an April 13 dinner celebrating the institute’s 20th anniversary, are due Feb. 1. Forms and additional information are available at alicepaul.org, or by calling (856) 231-1885. Born in Mount Laurel in 1885, Alice Stokes Paul dedicated her life to securing equal rights for women and led the final campaign for women’s right to vote. 1-27-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, JANUARY 27, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, JANUARY 27, 2005:

PARENT AND CHILD
CAPLAN v. CAPLAN
New Jersey Supreme Court, A-57, January 27, 2005. (32 pages). Facts-on-Call Order No. 92279

Even when there is sufficient investment income to satisfy a child support award, the court, when determining a party’s child support obligation, should impute income based on the party’s past income or earning potential in order to fairly allocate the child support obligation.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, JANUARY 28, 2005.



APPROVED FOR PUBLICATION
LAND USE
CEREBRAL PALSY CENTER, BERGEN COUNTY, INC. v. MAYOR AND COUNCIL OF THE BOROUGH OF FAIR LAWN
Appellate Division, A-6896-02T5, approved for publication January 27, 2005. (15 pages). Facts-on-Call Order No. 92280

A municipal ordinance that requires an applicant to be responsible for paying the fees and expenses of the municipality’s public advocate in connection with that application is invalid under the Municipal Land Use Law.

SENTENCING
STATE v. ANDERSON
Appellate Division, A-3932-03T4, approved for publication January 27, 2004. (7 pages). Facts-on-Call Order No. 92281

Although the defendant did not expressly waive the right of a jury to make findings of fact regarding the aggravating factors or specifically acknowledge the aggravating factors, Blakely v. Washington does not require the reduction of a sentence above the presumptive term when the sentence was imposed as a result of a guilty plea and the defendant agreed to plead guilty based on the imposition of that sentence and waived his or her right to a trial by jury.

PRETRIAL STATEMENTS
STATE v. SMITH
Appellate Division, A-5261-03T2F, approved for publication January 27, 2005. (15 pages). Facts-on-Call Order No. 92282

A police officer responding to a domestic violence call may question those present without giving Miranda warnings as long as the inquiries are reasonably related to confirming or dispelling suspicion and as long as those questioned are not restrained to a degree associated with formal arrest.

NOT APPROVED FOR PUBLICATION
TORTS
VACCA v. MALONEY’S PUB
Appellate Division, A-995-03T1, January 27, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 17556

Jury award of $1.8 million affirmed in an action by the plaintiff for the loss of total vision in his right eye when the defendant patron punched him outside the defendant bar; the jury found that the patron’s conduct was a proximate cause of the incident, that the bar was negligent in failing to protect the plaintiff from reasonably foreseeable harm and by serving alcohol to a minor or a visibly intoxicated person, and that the plaintiff also was negligent, and it apportioned 60 percent of the fault to the patron, 35 percent of the fault to the bar, and 5 percent of the fault to the plaintiff; however, the jury also found that the plaintiff’s negligence and the bar’s negligence were not proximate causes of the incident; the trial court reinstructed the jury, and five minutes later it found that the plaintiff’s negligence and the bar’s negligence were proximate causes of the incident; the situation confronted by the trial court did not require the declaration of a mistrial, a new trial, or the grant of the bar’s motion for a directed verdict; the trial court’s supplemental jury instructions were sufficient, and the verdict sheet was not “fatally flawed.”

PREMISES LIABILITY
MIKOLAJCZAK v. MARSHALLS DEPARTMENT STORE
Appellate Division, A-1436-03T2, January 27, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 17554

Judgment of $7,546 for the plaintiff shopper, denial of the plaintiff’s motion for a new trial or additur, and denial of the defendant store’s motion for judgment n.o.v. in a slip-and-fall action affirmed; the plaintiff slipped and fell on a substance on the defendant’s floor as she was leaving its premises; contrary to the plaintiff’s arguments on appeal, (1) nothing in the record required a new trial or additur, (2) the trial court did not abuse its discretion by preventing two of the plaintiff’s fact witnesses from testifying, and (3) the opinions of the defendant’s expert orthopedic surgeon did not exceed the essence of his report; the denial of the defendant’s motion was proper because there was “ample evidence” from which the jury could have concluded that its premises was not safe for business invitees like the plaintiff.

DOMESTIC VIOLENCE
CITRO-ORLANDO v. ORLANDO
Appellate Division, A-4817-03T1, January 27, 2005, not approved for publication. (2 pages). Facts-on-Call Order No. 17557

Order denying the defendant’s motion to vacate an award of $6,260.75 in attorney’s fees to the plaintiff’s counsel and an award of $6,359.44 in attorney’s fees to the plaintiff in a domestic violence action affirmed; on the third day of the trial, the defendant admitted to an act of domestic violence, and the plaintiff’s counsel then submitted an appropriate affidavit of services; the Family Part properly found (1) that the defendant was a “high earner,” that the parties lived a “high” lifestyle, and that the plaintiff had sufficient funds from her premarital assets to pay her own attorney’s fees, (2) that, although there was no bad faith on the part of either party, the defendant was “unreasonable” in pursuing the trial, (3) that the defendant’s belief that he had to go through the domestic violence trial before having his visitation claim resolved in the matrimonial action was “unreasonable,” and (4) that the defendant therefore caused “unnecessary expenditures of time and money for all concerned”; the Family Part did not abuse its discretion.

TAXATION
CITY OF EAST ORANGE v. BLOCK 232, LOT 34
Appellate Division, A-2760-03T2, January 27, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17555

Order vacating a final judgment of foreclosure and allowing the holder of a first tax sale certificate to redeem it within 30 days reversed; the first tax sale certificate was obtained at a public sale in May 1999; the plaintiff City purchased a second tax sale certificate in September 2000 and filed a foreclosure action in July 2002; the holder obtained the first tax sale certificate in May 2003 by assignment from the prior holder; the holder purchased the certificate with knowledge of the City’s pending foreclosure action but did not intervene, and it moved to vacate the City’s foreclosure judgment under Rule 4:50-1 more than five months after the judgment was recorded; the trial court abused its discretion (1) by relying on its view of public policy and disregarding the public policies furthered by tax sales, (2) by misapprehending the legal effect of the vacation, and (3) by giving too little consideration to the importance of the finality of judgments; there were no exceptional circumstances warranting relief from the judgment.


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