NEW JERSEY LAWYER

DAILY BRIEFING     01/06/2006


News Briefs

CHEN NAMED PUBLIC ADVOCATE
Ronald K. Chen will be moving from academia to government if his nomination as public advocate is confirmed by the state Senate. Chen, associate dean for academic affairs at Rutgers Law School-Newark, has been named by Gov.-elect Jon S. Corzine to the cabinet-level position abolished by the Republican-controlled legislature in 1994. The post was restored by the Democrat-controlled legislature last July with the stipulation it would be filled when the new governor takes command. Chen, an attorney since 1983, joined the Rutgers faculty in 1987 and has been active in public-interest law most of his time there. He has argued cases before the New Jersey Supreme Court and the 3rd U.S. Circuit Court of Appeals, notably American Civil Liberties Union of New Jersey v. Schundler, in which he represented the ACLU in its argument that Jersey City’s government-sponsored religious displays were unconstitutional. See a complete story in the Jan. 9 New Jersey Lawyer. 1-5-06

TRY, TRY AGAIN FOR JUDGES’ PAY RAISE
The last glimmer of possibility for raising pay for judges has expired as the lame-duck session of the legislature winds down. “The votes just aren’t there,” said Assembly Deputy Majority Leader Neil M. Cohen (D-Middlesex), who has been pushing for the raise. Cohen said he’ll try again in February. In a detailed plea to the legislature, Chief Justice Deborah T. Poritz all but begged for a raise for the state’s 450 judges, most of whom received their last increase from $137,165 to $141,000 at the beginning of 2002. In the interim, federal judges have received modest but steady raises and will earn more than $165,000 this year. 1-5-06

MENENDEZ APPOINTMENT CHALLENGE HEARING TUESDAY
Superior Court Judge Linda R. Feinberg will hear arguments Tuesday in a legal challenge to Gov.-elect Jon S. Corzine’s naming his own successor to his U.S. Senate seat. With a year left in Corzine’s term, Princeton attorneys Bruce I. Afran and Carl J. Mayer are saying that instead of Corzine appointing Rep. Robert Menendez (D-Hudson), a special election should be held. Afran and Mayer filed a similar suit when Gov. James E. McGreevey resigned in 2004 and Senate President Richard J. Codey filled in with more than one year in the term. 1-5-06

NO MORE SNAIL-MAIL FOR CHILD SUPPORT
Families receiving child support through the state Department of Human Services no longer will have to wait for checks in the mail, risk them being lost or stolen, and then go through the hassle — and sometimes expense — of cashing them. Under a new program starting with Mercer, Middlesex and Somerset counties, recipients will have the choice of an electronic transfer directly into their bank accounts or a debit card for drawing from accounts kept by the state. The state administers the nearly $3 billion program for child support, of which about $2 billion goes uncollected. 1-5-06

PRANKSTERS SENTENCED TO WRITE LOTS OF SENTENCES
Two Missouri men are serving sentences — actually, serving up lots of sentences and paragraphs — for making prank calls to a judge’s home during their early-morning party. St. Francois County Associate Circuit Judge Thomas L. Ray wasn’t amused to be awakened at 2 a.m. with calls containing drunken threats and obscenities. So he called the police, who traced the calls to the party. Gabriel J. Wichman, 23, and Ryan S. Fleming, 22, confessed to making the series of calls and pleaded guilty to charges of misdemeanor harassment. Their sentence? Both were ordered to write apology letters to the judge. He also ordered Fleming to perform 80 hours of community service and write a 10-page report and told Wichman to put in 40 hours of service and author an eight-page report. The title: “How Practical Jokes Have Serious Consequences.” 1-5-06

GRIEF AWAITS CORZINE
He won the election and all the headaches that go with the job. That's what's confronting Jon S. Corzine as he prepares to be sworn in as governor of a state with a budget hole projected at close to $6 billion. For a multi-millionaire who never has to worry about money as an adult, this should be a big change for Corzine and the myriad issues on his plate, including the selection of a new chief justice in 10 months and how to quickly eliminate the stench of corruption in Trenton. These are some of the focal points in an analytical article in the Jan. 2 New Jersey Lawyer. To read the full piece at no charge, visit http://www.njlnews.com/apps/pbcs.dll/section?Category=REDIRECT.




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Today's Decision Summaries

FROM THE NEW JERSEY SUPREME COURT, THURSDAY, JANUARY 5, 2006
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, JANUARY 5, 2006, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, JANUARY 6, 2006.


APPROVED FOR PUBLICATION
 
NO OPINIONS
APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON THURSDAY, JANUARY 5, 2006.


NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
DELLA PIETRO v. KANTRA
Appellate Division, A-2711-04T1, January 5, 2006, not approved for publication. (4 pages). Facts-on-Call Order No. 19053.

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for trial; the plaintiff sustained various injuries in the accident, including a boutonniere deformity of the fourth finger on his left hand with a 25-degree extension lag at the proximal interphalangeal joint; pursuant to the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano, the plaintiff presented sufficient evidence of a “significant deformity” and a permanent injury to satisfy the verbal threshold and proceed to trial.

VERBAL THRESHOLD
SANTANA v. NESTO
Appellate Division, A-4737-04T1, January 5, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19055.

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the trial court concluded that the plaintiff had not presented objective evidence of a permanent injury and that she had not demonstrated a serious impact on her life, other than an inability to eat certain foods and to dance while wearing heels; in light of the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano, the plaintiff presented proofs sufficient to withstand summary judgment where she asserted through her physician’s certification that she had suffered a disc bulge at C5-6, where that assertion was further supported by an MRI, and where her physician stated that she had suffered a permanent injury that “has not healed to function normally and will not heal to function normally without further medical treatment.”

VERBAL THRESHOLD
FOGLIA v. POWELL
Appellate Division, A-4099-04T5, January 5, 2006, not approved for publication. (3 pages). Facts-on-Call Order No. 19054.

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for trial; the trial court concluded that the plaintiff had satisfied the objective prong of the Oswin v. Shaw test but had not satisfied the subjective prong; the trial court determined that the plaintiff had suffered a torn rotator cuff as a result of the accident; reversal and remand for trial were required in light of the New Jersey Supreme Court’s recent decision in DiProspero v. Penn.

ATTORNEY’S FEES
ANGELOU v. VROULIS
Appellate Division, A-4092-04T2, January 5, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19058.

Order that awarded the entire contingency fee arising from the plaintiff’s personal injury action to the plaintiff’s first attorney affirmed in a fee dispute between successive attorneys; the first attorney recommended that the plaintiff accept a $30,000 settlement offer that was made on the eve of trial; a disagreement ensued, and either the plaintiff fired the first attorney or the first attorney withdrew; after the trial was adjourned, the second attorney represented the plaintiff, who accepted the $30,000 settlement offer; pursuant to the first attorney’s contingency fee agreement, he was entitled to his fee if he was fired but not if he withdrew; based on its credibility determination, the trial court concluded that the plaintiff fired the first attorney and that the first attorney was entitled to the whole fee under his agreement, and the second attorney did not present evidence showing that he had added any value to the settlement; the trial court’s decision was supported by the record.

LAND USE
NEW YORK SMSA v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF EDISON
Appellate Division, A-3872-04T3, January 5, 2006, not approved for publication. (7 pages). Facts-on-Call Order No. 19057.

Final judgment that declared that the defendant Zoning Board arbitrarily, capriciously, and unreasonably denied the plaintiff telecommunications company’s application for preliminary and final site plan approval and use and bulk variances affirmed substantially for the reasons expressed by the trial court; the company sought to place a 12-foot antenna on an existing 103-foot transmission tower and to place an equipment shelter inside a fenced compound at the foot of the tower; as to the N.J.S.A. 40:55D-70(d) positive criteria for a use variance, the record “conclusively” demonstrated that the Zoning Board’s preferred site for the antenna was unavailable and that the tower site was “peculiarly suited for this use”; as to the §40:55D-70(d) negative criteria, the Zoning Board misapplied the balancing test set forth in Sica v. Board of Adjustment where the impact of adding the antenna to the tower was “minimal” and where there was no detrimental impact on the public.

DRUNK DRIVING
STATE v. ELSTON
Appellate Division, A-5818-04T3, January 5, 2006, not approved for publication. (9 pages). Facts-on-Call Order No. 19056.

Conviction of driving while intoxicated affirmed; a State Trooper responded to a domestic violence complaint and encountered the defendant sitting on a farm tractor with its engine running; the defendant drove the tractor into a shed, where the Trooper observed that the defendant dismounted the tractor with “some difficulty,” moved slowly, walked with difficulty, and smelled of alcohol; after determining that there was no basis for the domestic violence complaint, the Trooper conducted field sobriety tests and arrested the defendant based on his performance; contrary to the defendant’s arguments on appeal, (1) the Trooper was not required to leave the premises upon determining that the domestic violence complaint was baseless because the domestic violence investigation was not finished when the Trooper began observing the defendant, (2) the Trooper’s observations provided a reasonable, articulable suspicion that the defendant had operated the tractor while intoxicated, and (3) the State’s evidence was sufficient to support the finding that the defendant had operated the tractor while intoxicated.

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. K.P.Q.O.
Appellate Division, A-5905-04T4, January 4, 2006, not approved for publication. (15 pages). Facts-on-Call Order No. 19049.

Order that terminated the defendant mother’s parental rights to her daughter and that placed the daughter in the care and guardianship of the plaintiff Division of Youth and Family Services for all purposes, including placement for adoption, affirmed; the mother had “a major psychiatric illness,” a history of substance abuse, and “a long history of involvement” with DYFS, including an earlier guardianship complaint that had resulted in the termination of her parental rights to her son; after DYFS learned of the daughter’s birth, it filed a child abuse and neglect complaint and obtained an order that vested custody of the daughter with DYFS; the trial court properly determined that DYFS had satisfied the four parts of N.J.S.A. 30:4C-15.1(a) by clear and convincing evidence and had established that terminating the mother’s parental rights was in the daughter’s best interests.

MENTAL HEALTH
IN RE CIVIL COMMITMENT OF M.N.A.
Appellate Division, A-5775-02T2 and A-425-04T2, January 4, 2006, not approved for publication. (17 pages). Facts-on-Call Order No. 19051.

Judgments that committed the appellant to the Special Treatment Unit pursuant to the Sexually Violent Predator Act and that continued his commitment affirmed; in addition to the predicate offense of fourth-degree criminal sexual contact, the appellant had “several” juvenile offenses and had been adjudicated delinquent for endangering the welfare of a child and placed in a residential sex-offender program; clear and convincing evidence supported the conclusions as to both judgments that the appellant suffered from a mental abnormality or personality disorder that caused him serious difficulty in controlling harmful sexual behavior to the extent that he was highly likely to reoffend; there was no merit to the appellant’s arguments that the trial court improperly relied on expert opinions that were based in part on the opinions of nontestifying experts and on a report from the Adult Diagnostic and Treatment Center that was prepared by a nontestifying expert.

CRIMINAL TRIALS
STATE v. PARRISH
Appellate Division, A-563-04T4, January 4, 2006, not approved for publication. (13 pages). Facts-on-Call Order No. 19052.

Convictions of second-degree aggravated assault and two weapons offenses affirmed, but the sentence for aggravated assault vacated and remanded for resentencing; the charges arose from a shooting at a party; during his interrogation of the defendant, a detective falsely told the defendant that several people who were at the party had identified the defendant as being at the party and involved in the shooting; the detective’s use of false information did not require that the defendant’s confession be suppressed because the deception involved only oral misrepresentations and not fabricated tangible evidence and because the trial court’s finding that the confession was voluntary was supported by the record and was consistent with the factors set forth in State v. Galloway; resentencing on the aggravated assault conviction was required under State v. Natale.

CRIMINAL TRIALS
STATE v. BOKA
Appellate Division, A-1048-04T4, January 4, 2006, not approved for publication. (10 pages). Facts-on-Call Order No. 19050.

Convictions of two CDS-possession offenses affirmed but remanded for resentencing on one offense, and convictions of three possession of CDS with intent to distribute offenses reversed and remanded for a new trial; the defendant — who had been convicted in 1996 of possessing CDS with the intent to distribute and in 1997 of eluding — admitted on cross-examination that he had possessed CDS but denied that he had the intent to distribute; the State conceded that the trial court erred by requiring only the 1996 conviction to be sanitized; that error required reversal of only the three convictions for possession of CDS with intent to distribute because evidence of the defendant’s prior convictions was admissible to impeach his credibility and because, in light of the defendant’s admission, there was no credibility issue as to the CDS-possession offenses; the trial court had imposed a sentence on only one of the CDS-possession convictions, and that sentence had to be vacated pursuant to State v. Natale.

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.)



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