NEW JERSEY LAWYER

DAILY BRIEFING      01/04/2006


News Briefs

BILL PUTS BRAKES ON SUSPENSIONS
Backed by a state sentencing panel, a bill that would give judges discretion on whether to suspend a driver’s license after a drug conviction is up for a Senate vote Thursday. Identical legislation also is in position for a full vote in the Assembly, indicating the possibility of final legislative passage before the lame-duck session ends. Under current law, those convicted of any drug offense lose their driver’s license for a period of six months to two years. The measure, S-2517, sponsored by Sen. Bernard F. Kenny Jr. (D-Hudson), has made more progress than in previous legislative sessions when the perennial proposal never made it to a final vote in either house. This year, with the backing of the Commission to Review Criminal Sentencing, committees of both houses approved the legislation. The commission has focused on mandatory minimum sentences. 1-3-06

U.S. ATTORNEY CALLS ON CITIZENS TO BATTLE CORRUPTION
If U.S. Attorney Christopher J. Christie is the general in a battle against political corruption in New Jersey, citizens are the army he needs to win that war. And so he’s pitching the public to act as watchdogs on wayward officials. While federal prosecutors have convicted 86 public officials on a variety of charges since Christie took office four years ago, he’s predicting corruption in New Jersey politics will continue. Given that, he said at a gathering in Dover Township, there’s a clear need for citizens to better police government officials. “If people break their promises to you, if they don’t keep their word, kick them out. … At least be involved in really finding out if they’re doing what you elected them to do,” he advised. 1-3-06

LAW STUDENTS COAST IN THIRD YEAR, SURVEY SAYS
Third-year law students don’t study as hard as their first and second year, according to a nationwide survey. In the 2005 report of the Law School Survey of Student Engagement, third-year students are less likely to be prepared in class, talk about legal issues less often outside class and show no better critical thinking or writing skills than first- or second-year students. On the positive side, the report found diversity pays off for the law school experience. The annual survey gathered information on 28,000 students in 73 law schools. 1-3-06

WISCONSIN SUPREME COURT SPLITS ON STATUTE OF LIMITATIONS
A Wisconsin teen-ager and his family finally will get their day in court following a ruling by a sharply divided Wisconsin Supreme Court about the statute of limitations. The justices ruled the state’s three different statutes of limitations for malpractice cases don’t fully address injuries to developmentally disabled children. One of the laws says an action must be brought by age 10. The court said Toby Haferman, 14, can sue his doctor and the hospital where he was born on claims he was denied oxygen to the brain before and after his birth. His suit was dismissed by a lower court. 1-3-06

EAVESDROPPING ON POLICE PHONE CONVERSATIONS CHALLENGED
There are times when police officers just don’t take kindly to wiretapping. At least when they’re the ones being recorded. Former officers and a current employee of the Lake Worth, Fla., force are awaiting a ruling by Palm Beach County Circuit Court Judge Kenneth Stern seeking to stop wiretapping of all telephone calls to and from the police dispatch center. They contend law enforcement cannot listen in and tape conversations without a court order and without the knowledge and consent of those being monitored. The complaining former officers contend their privacy is being invaded by recording non-emergency calls. Defense attorneys say the officers had no expectation of privacy and they knew their calls were being recorded. The judge is slated to rule Friday. 1-3-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, JANUARY 3, 2006
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, JANUARY 3, 2006, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON WEDNESDAY, JANUARY 4, 2006.


APPROVED FOR PUBLICATION
WORKERS’ COMPENSATION
WALROND v. COUNTY OF SOMERSET
Appellate Division, A-3265-04T5, approved for publication January 3, 2006. (16 pages). Facts-on-Call Order No. 92792

An action that arose when the plaintiff police officer was struck by lightning while serving as a “duty officer” at the defendant Somerset County Police Academy was not barred by the exclusive-remedy provisions of the Workers’ Compensation Act, and the plaintiff could sue the Academy in tort because the plaintiff, who had not received any compensation from the Academy, was not an employee or a special employee of the Academy.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
KEELER v. DeSANTO
Appellate Division, A-3189-04T2, January 3, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19039

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for trial; before the parties’ 2001 accident, the plaintiff had been involved in “some prior accidents” and had undergone a spinal fusion in 1969; the “pivotal basis” for the trial court’s decision was that the plaintiff had not supplied a sufficient expert analysis under Polk v. Daconceicao to compare her injuries from the 2001 accident with her pre-existing medical conditions; the Appellate Division reversed as a matter of law and adopted the recent holding in Davidson v. Slater that the comparative analysis requirement of Polk does not apply to actions under AICRA.

LAND USE
NORIAN v. PLANNING BOARD OF THE BOROUGH OF ALPINE
Appellate Division, A-3163-04T1, January 3, 2006, not approved for publication. (20 pages). Facts-on-Call Order No. 19040

Interlocutory order and final judgment that authorized the plaintiff developers to connect their proposed seven-unit townhouse development to an off-site sanitary sewer system affirmed; the defendant Borough’s wastewater disposal policy generally required the use of on-site systems; as to the interlocutory order, the trial court correctly held that the defendant Planning Board improperly denied the developers’ application for site plan approval because the application conformed to the standards set forth in the Borough’s zoning ordinance and because the Planning Board could impose appropriate conditions — including permits, easements, and approvals — but could not deny the site plan due to failure to obtain those items in advance; as to the final judgment, which was entered after the Planning Board granted preliminary site plan approval and imposed many conditions that the developers challenged, the trial court properly concluded that authorization for the connection to an off-site system was an implied condition of an earlier settlement agreement in a builder’s remedy action by the developers against the Borough under the Mount Laurel doctrine.

DRUNK DRIVING
STATE v. MONTANA
Appellate Division, A-4313-04T2, January 3, 2006, not approved for publication. (6 pages). Facts-on-Call Order No. 19038

Convictions following a trial de novo of driving while intoxicated and refusal to submit to a chemical test affirmed; a witness called the police after observing the defendant leave his hotel, stagger while walking to his car, and drive erratically; the defendant performed poorly on the tests administered by the responding officer, had a strong odor of alcohol on his breath, and appeared to be intoxicated; based on the information that the witness supplied to the police, there was a constitutional basis for the police to stop the defendant’s vehicle and question him; the record “fully” supported the finding that there was probable cause to arrest the defendant for DWI based on the officer’s observations after the stop; the conviction for refusal to submit to a chemical test was based on proof beyond a reasonable doubt.

CRIMINAL TRIALS
STATE v. SHASHKOV
Appellate Division, A-36-04T4, December 30, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 19037

Conviction of the lesser-included offense of manslaughter and two weapons offenses affirmed, but the sentence vacated and remanded for resentencing pursuant to State v. Natale; the defendant’s estranged wife was the victim; contrary to the defendant’s arguments on appeal, (1) the detective who translated the inculpatory note that was found at the crime scene from Russian into English was properly qualified to perform the translation, and his position as a police officer did not disqualify him from providing expert testimony, (2) although there was a question as to whether the record supported the prosecutor’s characterization of the defendant as a “liar” during his summation, that single statement was not “sufficiently egregious” to require a new trial, especially where the defendant was acquitted of murder, and (3) in light of the jury instructions as a whole, the trial court’s single use of the term “guilt or innocence” did not have the capacity to give the jury the impression that the defendant was required to prove his innocence.

CRIMINAL TRIALS
STATE v. THOMPSON
Appellate Division, A-4922-03T4, December 30, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 19036

Two arson convictions affirmed, but sentence of imprisonment and the payment of more than $16,700 in restitution reversed and remanded; as to the convictions, the defendant’s confession was not involuntary (1) where the defendant claimed that he had been “tipsy” from alcohol about three hours before his confession, that he had not slept, and that he had wanted to go to work but (2) where the police officer testified that the defendant did not appear to be intoxicated and had stated that he was not tired; as to the sentence, resentencing was required in light of the New Jersey Supreme Court’s recent decisions in State v. Natale and State v. Abdullah, and a restitution hearing was required to determine the defendant’s ability to pay.


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