NEW JERSEY LAWYER

DAILY BRIEFING      01/30/2006


News Briefs

FARBER FACES TOUGH ISSUES
When she takes office as the state’s attorney general, Zulima V. Farber not only will be directing a vast and multi-faceted legal bureaucracy, but she’ll have to patch up the Department of Law and Public Safety’s slippage in prestige in recent years. The two most visible challenges will be to energize anti-corruption efforts and reorganize the state’s counterterrorism machinery. As if these weren’t controversial enough, she has strong opinions about the death penalty, mandatory minimum sentences and the unintended consequences of some drug laws, and shows no inclination to back down from a fight over changing those laws. For the full story, see the Jan. 30 New Jersey Lawyer. 1-27-06

BILLS WOULD TOUGHEN MEGAN’S LAW RULES
Sex offenders who fail to register or who supply false information under Megan’s Law will face tougher penalties under legislation now in the state Senate. Bills sponsored by Sens. Peter A. Inverso (R-Mercer) and Ellen Karcher (D-Monmouth) would increase the fine from $10,000 to $15,000 and the possible jail term up to five years. Those who fail to keep their address current could be fined up to $10,000 and face up to 18 months in jail. The legislation, S-716 and S-832, will be treated as one bill as they make their way to a full Senate vote. They were approved last week by the Law, Public Safety and Veterans Affairs Committee. 1-27-06

ASSEMBLY MAJORITY PROMOTES LAWYER
Kay Walcott-Henderson, who’s been involved in crafting and passing major legislative initiatives the past two years, has been promoted to general counsel of the Assembly Majority Office. Assembly Speaker Joseph J. Roberts Jr. praised her as a “superb attorney” and “top-flight researcher who has gained the faith, trust and admiration of our entire caucus.” Walcott-Henderson, of Ewing Township, played a key role in enactment of a 24-bill ethics reform package, a measure to create the position of lieutenant governor and allowing earlier presidential primaries in New Jersey. She’s been with the Assembly Democrats staff two years as associate general counsel and previously did criminal defense and prosecution work and public-employment law. 1-27-06

MUNICIPAL COURT AWASH IN RED INK
After running a deficit for each of the past two years, Union Township officials are weighing their options, including merging with another Hunterdon County municipality’s court or turning theirs over to someone else to operate. Rebuffed by the North Hunterdon Municipal Court, Union Township officials are exploring a merger with Franklin Township. Local officials are eager to find a solution after running deficits of $20,000 to $25,000 per year in 2004 and 2005. Officials blame the state, since the municipality keeps only $25 of each traffic fine; the state gets the rest. Since the township has no police force, New Jersey State Police issue citations in that municipality. Local officials have dismissed the idea of starting a small police force, finding it likely would be expensive and produce more red ink. 1-27-06

DETECTIVE DOG EARNS MORE THAN CHIEF
Keela, a member of the South Yorkshire Police force in England, is rare among English springer spaniels and other canine breeds. The 17-month-old is so successful at sniffing out the smallest samples of human blood that she’s been solving crimes, uncovering evidence and earning more money than the police chief. She’s hired out at about $950 per day or $350,000 annually, $125,000 more than the chief constable. Among her many skills is detecting traces of blood on clothing or weapons that have been cleaned. Keela, who’s never attended formalized police dog training but has learned the ropes from her handler, has helped with investigations in Ireland and England and is heading to the United States this year to assist the FBI in two murder cases. 1-27-06



Today's Decision Summaries

To Order Decisions

Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)

FROM THE NEW JERSEY SUPREME COURT, FRIDAY, JANUARY 27, 2006
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, JANUARY 27, 2006, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, JANUARY 30, 2006.


APPROVED FOR PUBLICATION
INSURANCE
PARDO v. DOMINGUEZ
Appellate Division, A-3388-04T3, approved for publication January 27, 2006. (8 pages). Facts-on-Call Order No. 92827

In this automobile negligence action, even though there was merit to the defendant’s claim that there was no adverse impact on the plaintiff’s life, the plaintiff satisfied the verbal threshold because there was no evidence that her herniated disc could “heal to function normally” within the meaning of N.J.S.A. 39:6A-8a. A judge’s comments or questions during a colloquy with counsel cannot provide the findings of fact or conclusions of law necessary for an order granting summary judgment.

BAIL
STATE v. HAWKINS
Appellate Division, A-165-04T1, approved for publication January 27, 2006. (13 pages). Facts-on-Call Order No. 92828

On the motion of a surety to vacate an order for partial remission of forfeited bail, the surety must be relieved of its entire obligation on two bonds that were posted at different times for the same defendant where the surety was not notified before the second posting that the defendant had failed to appear for a proceeding after the first posting.

SEXUAL OFFENSES
STATE v. DRURY
Appellate Division, A-2489-03T4, approved for publication January 27, 2006. (24 pages). Facts-on-Call Order No. 92829

Carjacking, as defined in N.J.S.A. 2C:15-2, is a form of robbery, as defined in N.J.S.A. 2C:15-1, and it therefore qualifies as an offense that may raise a second-degree sexual assault to a first-degree aggravated sexual assault under N.J.S.A, 2C:14-2a. However, the defendant could not be convicted of first-degree aggravated sexual assault because the evidence did not support the jury’s finding that the sexual assault occurred “during the commission or attempted commission” of the carjacking. The defendant’s challenge to his sentence under Blakely v. Washington and State v. Natale was rejected.

NEW TRIAL
STATE v. MILLER
Appellate Division, A-5441-03T2, approved for publication January 27, 2006. (14 pages). Facts-on-Call Order No. 92830

The conviction of the lesser-included disorderly persons offense of simple assault — which was entered by the trial judge following an acquittal by the jury on the indictable offenses and a mistrial on the lesser-included offense based on a deadlocked jury — was reversed and remanded for a new trial because the trial judge erred by deciding the case de novo on the evidence already presented. The mistrial rendered the jury trial a nullity, and the defendant therefore was entitled to a new trial, with a judge as fact-finder, at which he could present evidence in a different manner if he chose to do so.

NOT APPROVED FOR PUBLICATION
PREMISES LIABILITY
CRISONINO v. BALINT
Appellate Division, A-2126-04T2, January 27, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19155

Summary judgment for the defendant homeowners in an action arising from the plaintiff’s fall on an uneven portion of the public sidewalk that abutted the front of the defendants’ residence affirmed; one of the homeowners testified in his deposition that he was aware of the sidewalk’s condition and that he took no action to correct it or to post warning signs; the trial court held that residential landowners are immune from claims arising from falls on the sidewalks that abut their properties and that, although landowners are liable for repairing a sidewalk improperly or negligently, there was no evidence that the defendants had repaired or attempted to repair the sidewalk; in light of the case law, the Appellate Division found that the plaintiff’s arguments about protecting the public interest in keeping sidewalks safe were not persuasive; the Appellate Division was bound by the decisions of the New Jersey Supreme Court, which alone could reconsider its views on residential landowners’ liability for injuries arising from falls on abutting sidewalks.

ATTORNEY’S FEES
ARSENEAULT, FASSETT & MARIANO, LLP v. GREITZER
Appellate Division, A-2791-04T3, January 27, 2006, not approved for publication. (4 pages). Facts-on-Call Order No. 19157

Denial of the defendant client’s motion to vacate a final judgment against him in an action to collect attorney’s fees affirmed; the defendant argued on appeal that the plaintiff law firm’s bill was excessive because it had moved a complicated case from attorney to attorney within the firm; however, the defendant had failed to support that argument in his opposition to the firm’s summary judgment motion, had acknowledged his liability for the fees in a certification that he had submitted to the trial court, and had not presented any grounds for relief from the final judgment under Rule 4:50-1.

CIVIL PROCEDURE
KYUNG SIK YOO v. KIMM
Appellate Division, A-2981-04T3, January 27, 2006, not approved for publication. (3 pages). Facts-on-Call Order No. 19156

Law Division final default judgment that limited the defendant attorney’s fees following his representation of the plaintiffs in a case before the U.S. District Court affirmed; procedurally, there can be no direct appeal from a default judgment, and recourse first must be made in the trial courts pursuant to Rule 4:50-1; because the attorney did not follow that procedure, that deficiency alone would be enough to defeat his appeal; substantively, the Law Division (1) properly determined that the attorney failed to meet his burden to set aside a default under Rule 4:43-3 or to obtain relief from a final judgment under Rule 4:50-1 and (2) did not abuse its discretion by denying the attorney’s request for a comity stay pending resolution of his fee application in the District Court.

INSURANCE
CALVAIRE v. LIBERTY MUTUAL INSURANCE CO.
Appellate Division, A-3518-04T1, January 26, 2006, not approved for publication. (3 pages). Facts-on-Call Order No. 19153

Summary judgment for the defendant insurer in an action for personal injury protection benefits and underinsured motorist coverage affirmed substantially for the reasons expressed by the trial court in its “thorough and well-reasoned” opinion; the trial court found that the plaintiff had made material misrepresentations to the insurer about the seriousness of her later automobile accident and about the severity of the injuries that she sustained in the later accident; contrary to the plaintiff’s argument on appeal, the trial court did not err by finding that her misstatements constituted fraud as a matter of law that warranted the denial of coverage.

PUBLIC EMPLOYEES
IN RE NORMAN
Appellate Division, A-5633-03T1, January 26, 2006, not approved for publication. (11 pages). Facts-on-Call Order No. 19154

Final decision of the Merit System Board upholding the determination to remove the appellant police sergeant from the respondent City’s police department after he tested positive for cocaine in a random drug test affirmed; the Appellate Division (1) rejected the sergeant’s argument that his random drug test had to be “voided, nullified, and suppressed” due to the failure of the City and the drug testing company to strictly adhere to the Attorney General’s guidelines for drug testing law enforcement personnel and (2) was not persuaded by the sergeant’s argument that he could not have been using cocaine because he had tested negative for cocaine on a drug test that was administered by his personal physician seven days after his random drug test.

PUBLIC EMPLOYEES
IN RE MOORE
Appellate Division, A-5224-03T5, January 26, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19152

Final decision of the Merit System Board that adopted the administrative law judge’s initial decision — which recommended that the appellant detective be suspended for 30 days for insubordination and for conduct unbecoming an officer — affirmed; the ALJ found that the detective was insubordinate when he failed to comply with his superior’s order to prepare a report, that the detective’s use of profanity during his meetings with his superior was conduct unbecoming, that the detective’s response to his superior’s order to behave respectfully toward visitors was conduct unbecoming, and that the detective’s confrontation of his superior with a tape recorder was insubordination and conduct unbecoming; the record “amply” supported the findings that the detective was insubordinate, that his responses to his supervisor’s orders constituted conduct unbecoming, and that a suspension was justified; the Board’s decision was not arbitrary, capricious, or unreasonable.


To Order Decisions

Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)


Click this link to unsubscribe to the Daily Briefing email



Copyright © 2006 The New Jersey Lawyer Inc. All rights reserved.