NEW JERSEY LAWYER

DAILY BRIEFING      11/15/2005


News Briefs

TRENTON’S MAYOR RAILS ABOUT REPEAT OFFENDERS
When Trenton Mayor Douglas H. Palmer does the math, he doesn’t like the results. So Palmer has another answer: What he calls a special gun court to deal with the relatively small number of the city’s criminals who are causing the most serious trouble in the capital city where shootings have become almost a daily occurrence. The Trenton Police Department’s database of violent offenders contained 47 names as of Aug. 8. Yet those people have been arrested a total 573 times, resulting in 106 convictions. The average number of convictions for these offenders is 2.25 from an average 12.19 arrests. Palmer is blaming that on the system, saying that by the time cases get to court, multiple charges are bundled and sentences are plea-bargained down or away. His proposed gun court would handle only the most severe arrests and the judge would be able to get cases quickly to trial, as well as set high bail. Mercer County Prosecutor Joseph L. Bocchini Jr. said that while he disagrees with some of Palmer’s comments, he supports the formation of a gun court. 11-14-05

REED SMITH EXPANDS EUROPEAN PRESENCE WITH PARIS OFFICE
First it was London and the Midlands near Coventry. Then Munich. Now, Reed Smith has opened a Paris office. The firm, which is headquartered in Philadelphia and has offices in Newark and Princeton, is expanding its overseas reach to serve its increasing base of international businesses. “In particular, Paris gives us strong legs to further our banking, pharmaceutical and products work on an international level,” said Gregory B. Jordan, Reed Smith’s managing partner. The firm elected four new French partners and will operate as Reed Smith Rambaud Charot. Two of the new partners are Mathieu Rambaud and Benoit Charot, known as high-profile lawyers in Paris with the firm of Rambaud Martel. Jordan added, “Expansion in Paris is largely driven by the needs of clients in two of Reed Smith’s core practices: life sciences and financial services.” The firm has 1,000 attorneys. 11-14-05

BLOOMBERG DECRIES N.Y. JUDICIAL-SELECTION PROCESS AS ‘FARCE’
New York Mayor Michael Bloomberg has called the state process of nominating judges a “farce” in which unqualified people can receive judgeships through politics and “shady back-room deals.” The mayor said independent commissions should be established to screen whether judicial candidates are qualified before they can get on the ballot. In an opinion article that appeared in New York’s Daily News, Bloomberg said the method of electing judges “bears more of a resemblance to voting in the Soviet Union than in the United States of America.” He noted nine candidates on the ballot last week were deemed unqualified by most major bar associations. 11-14-05

FLORIDA LAW AGAINST FELON VOTING STANDS
The U.S. Supreme Court has denied an appeal of a lower court ruling upholding a Florida law’s lifetime ban on allowing convicted felons to vote. Florida is one of 14 states that bars felons from voting even after completing their sentence. Most other states, including New Jersey, prevent convicted felons from voting until after they’ve served their jail sentence, parole and probation. In New Jersey, attempts to ease those restrictions have failed in both the courts and legislature. In NAACP v. Harvey, the Appellate Division recently ruled against a suit seeking voting rights for felons on parole or probation. S-1031, sponsored by Sens. Wayne R. Bryant (D-Camden) and Shirley K. Turner (D-Mercer) that would allow those on probation to vote, was withdrawn last week. 11-14-05

JUDGE SEES RED AFTER TWINS TRY TO PULL FAST ONE
A Connecticut judge wasn’t amused when he learned a defendant’s twin sister appeared before him to enter a guilty plea to using a stolen credit card. “Do you think this is funny? I don’t know why you think it’s funny,” New Britain Superior Court Judge Patrick J. Clifford told the 18-year-olds when both later were before him. Yarizca Ortiz had appeared in place of Yamahile Ortiz, who said she had not been there because she had an exam. Clifford struck Yamahile’s guilty plea and set her bail at $50,000. When Yarizca cursed while complaining to her sister about having to raise the money, Clifford raised the bail to $250,000. He also told prosecutors to review Yarizca’s appearance for her sister and determine whether she had broken any laws. 11-14-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, MONDAY, NOVEMBER 14, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON MONDAY, NOVEMBER 14, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON TUESDAY, NOVEMBER 15, 2005.


APPROVED FOR PUBLICATION
PUBLIC EMPLOYMENT
DeBENEDICTIS v. STATE OF NEW JERSEY
Appellate Division, A-311-04T2, approved for publication November 14, 2005. (11 pages). Facts-on-Call Order No. 92730

A State Police reprimand notice issued to a State Trooper was tantamount to a complaint under N.J.S.A. 53:1-33, and the grievance procedure that the State Trooper used to challenge minor discipline constituted a waiver of the §53:1-33 hearing provisions.

DEFAMATION
GULRAJANEY v. PETRICHA
Appellate Division, A-4103-03T2, approved for publication November 14, 2005. (20 pages). Facts-on-Call Order No. 92731

A candidate for the board of directors of a condominium association is a limited public figure who therefore must establish actual malice to maintain a defamation action against a unit owner who distributed a defamatory e-mail message urging the defeat of the candidate.

GUN CONTROL
IN RE APPEAL OF DENIAL OF APPLICATION BY BROKING FOR A PERMIT TO CARRY A HANDGUN
Appellate Division, A-3882-04T3, approved for publication November 14, 2005. (10 pages). Facts-on-Call Order No. 92732

When a law enforcement officer’s retirement application is approved but made effective as of an earlier date and the officer applies for a permit to carry a handgun after retirement under N.J.S.A. 2C:39-6(l)(1), the statutory six-month period for filing the permit application begins to run on the date that the retirement application was approved.

NOT APPROVED FOR PUBLICATION
PREMISES LIABILITY
CURTIS v. DIORIO
Appellate Division, A-6770-03T3, November 14, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18808

Summary judgment for the defendants in a premises liability action arising from the plaintiff’s fall on the steps of the back entrance of a house affirmed; the plaintiff had lived in the house with her boyfriend for about five years, had used the back steps regularly, and had been aware that the sidewalk near the steps was cracked; the plaintiff’s foot landed in the crack when she exited the house at dusk after she decided not to turn on the back porch light because she believed that there was enough daylight for her to see where she was going; the Appellate Division agreed that the plaintiff “was, at best, a social guest, and at worst, a licensee,” and there was no duty to warn her of dangers of which she already was aware.

LAND USE
RHODES v. CITY OF CAPE MAY
Appellate Division, A-6473-03T5, November 14, 2005, not approved for publication. (17 pages). Facts-on-Call Order No. 18810

Order declaring that the plaintiff landowner’s two lots had not merged reversed; after the defendant Planning Board rejected her subdivision application, the landowner filed a complaint in lieu of prerogative writs for a declaratory judgment that her two lots had not merged; the defendant City stated that it would not participate, a default was entered against it, and the landowner moved for a final judgment by default; asserting that the landowner’s lots had merged, the landowner’s neighbors moved to intervene and to vacate the default against the City; after properly granting the motion to intervene, the trial court (1) correctly denied the neighbors’ motion to vacate the default in light of the City’s “knowing and purposeful decision” to default but (2) incorrectly concluded that the City’s default resolved the issue of merger against the neighbors; despite the City’s default, the neighbors were entitled to a “full opportunity” to contest the merger issue, and their proofs were sufficient to require that the matter proceed to trial.

EMINENT DOMAIN
NEW JERSEY SCHOOLS CONSTRUCTION CORP. v. GUPPY HOLDINGS, L.L.C.
Appellate Division, A-2831-04T3, November 14, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18811

Final order appointing condemnation commissioners and denial of the defendant company’s motion to dismiss in the plaintiff New Jersey Schools Construction Corporation’s condemnation action affirmed; the SCC appraised the property in the presence of its previous owner in August 2002, assigned a fair market value of $40,000, and notified the previous owner in June 2003 of the SCC’s intent to acquire the property under the Eminent Domain Act; in June 2004, the defendant company acquired the property in a tax sale foreclosure action; upon learning of that acquisition, the SCC began negotiating with the defendant in August 2004; the defendant rejected the SCC’s initial offer and did not respond to the SCC’s offer of further negotiations until two days after the complaint was filed in November 2004; contrary to the defendant’s argument on appeal, the SCC did not breach its obligation under N.J.S.A. 20:3-6 to negotiate in good faith.

MENTAL HEALTH
IN RE CIVIL COMMITMENT OF C.A.C.
Appellate Division, A-1034-02T2, November 14, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18812

Order finding the appellant to be a sexually violent predator under the Sexually Violent Predator Act, committing him to the Special Treatment Unit for one year, and scheduling a one-year review hearing affirmed; the statutory criteria had been proved by clear and convincing evidence, and the trial court’s findings were based on substantial credible evidence in the record; although the appellant argued that the opinions of the State’s experts were based on records and reports that constituted hearsay, he was given the opportunity to be tested and interviewed by the State’s experts, but he “willfully refused” to comply with the evaluations that are necessary for the State to meet the requirement under N.J.S.A. 30:4-27.30 that psychiatric testimony be presented at a commitment hearing before a finding as to the need for commitment can be made; the trial court properly allowed the State’s witnesses to use the appellant’s sexual crimes, his presentence evaluations, his treatment notes, and his termination reports to arrive at their own independent opinions and diagnoses.

DRUNK DRIVING
STATE v. KOLIBABA
Appellate Division, A-511-04T1, November 14, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18809

Denial of the defendant’s application for post-conviction relief after she pleaded guilty to driving while intoxicated affirmed; the PCR application asserted claims of newly discovered evidence and ineffective assistance of counsel based on the defendant’s claim that she suffered from a medical condition that causes reduced blood-sugar levels, mimics the signs of alcohol ingestion, and artificially elevates Breathalyzer results; the Law Division properly concluded (1) that the defendant knew of her medical condition before her plea, (2) that no evidence supported the conclusion that defense counsel’s failure to raise the defendant’s medical condition as a defense was a deviation from the relevant standard of performance, and (3) that the report that the defendant submitted to support her PCR application lacked the capacity to change the outcome.


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