NEW JERSEY LAWYER

DAILY BRIEFING      12/05/2005


News Briefs

BURLINGTON COUNTY PROSECUTOR RENOMINATED
Acting Gov. Richard J. Codey has nominated Robert D. Bernardi for a second five-year term as Burlington County prosecutor. Bernardi has served since 1999, when he was appointed by Gov. Christie Whitman. His term expired in June 2004 and he has remained in a holdover capacity. Bernardi oversees more than 150 employees and is responsible for the operation of the Burlington County Police Academy. He is a past president of the County Prosecutors Association of New Jersey. Codey also nominated Dennis P. Blake, a partner at Brown & Connery in Westmont, as an administrative law judge. 12-2-05

DOMESTIC PARTNERSHIP MEASURE ADVANCES
Domestic partners would have the same rights as married couples when it comes to funeral arrangements and inheritances, under a measure approved by the Senate Judiciary Committee. S-2083, sponsored by Sen. John H. Adler (D-Camden), moves to the full Senate for consideration. If enacted, the measure would amend the state intestacy law to ensure same-sex partners would receive an inheritance from their deceased partner’s estate and have control of funeral arrangements should the partner die intestate. 12-2-05

WILL ALCOTEST PASS THE TEST?
A showdown finally has been set into motion over whether the state’s new breath-test machines are sufficiently accurate to convict drunken drivers in New Jersey. With the Appellate Division essentially firmly taking charge, a framework was ordered late last week for reaching a consistent and statewide resolution about the admissibility of results from the Alcotest 7110 machines. The appeals court remanded the matter to Middlesex County Judge Jane B. Cantor and let stand her Oct. 14 ruling blocking all prosecutions involving the new machines in that county’s municipal courts until she conducts a hearing on Alcotest’s scientific reliability. A full story is in the Dec. 5 New Jersey Lawyer. 12-2-05

ALITO JOINS OPINION SAYING SURVEY DIDN’T TRAMPLE PARENTAL RIGHTS
With Judge Samuel A. Alito Jr. agreeing, the 3rd U.S. Circuit Court of Appeals ruled an anonymous school survey that contained questions on personal experiences with drugs, alcohol, sex, attempted suicide and violence did not violate parents’ right to raise their children as they see fit or unconstitutionally compel speech. The decision involved a survey Ridgewood school officials administered in 1999 to students in grades 7-12. The controversy led to a state law requiring written consent from parents before such a survey is given to their children. The opinion in C.N. v. Ridgewood Board of Education was written by Judge D. Michael Fisher, with Alito signing on. (A full text of C.N., Facts-on-Call Order No. 92751, can be ordered from NJL Online or by calling 800-670-3370.) 12-2-05

EXECUTIONER’S SONG HEARD MOST OFTEN IN TEXAS
By far and away, Texas leads the nation in executions since 1976 with 355. Virginia follows with 94, Oklahoma is third with 79, then Missouri with 66 and Florida 60. The top northern state is Ohio, which is 13th with 19 executions. New Jersey has executed none, despite reinstituting the death penalty in the early 1980s. Non-Hispanic whites comprise 58 percent of those executed, blacks 34 percent, Hispanics 6 percent and others 2 percent. The number of defendants sentenced to death last year — 125 — compares to an average 290 annually during the 1990s. 12-2-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, DECEMBER 2, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, DECEMBER 2, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, DECEMBER 5, 2005.


APPROVED FOR PUBLICATION
POST-CONVICTION RELIEF
STATE v. LEE
Appellate Division, A-5492-03T5, approved for publication December 2, 2005. (35 pages). Facts-on-Call Order No. 92752

The defendant was not entitled to discovery on his petition for post-conviction relief that asserted allegations of racial profiling because the attenuation exception to the exclusionary rule applied in light of the defendant’s independent criminal acts after the motor vehicle stop. Judge Fuentes dissented.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
KLITSCH v. GILBERT
Appellate Division, A-6619-03T2, December 2, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18905

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the “sole basis” for the defendants’ summary judgment motion was that there was no genuine dispute of material fact as to whether the plaintiff had sustained a serious life impact under the second prong of the Oswin v. Shaw test; however, in light of the New Jersey Supreme Court’s recent decision in DiProspero v. Penn, the plaintiff was not required to demonstrate a serious life impact; the Appellate Division did not address the defendants’ argument on appeal that there was no genuine dispute of material fact as to whether the plaintiff had presented sufficient evidence of a permanent injury under §39:6A-8a because they had conceded before the motion court that there was such a dispute.

NEGLIGENCE
D’ATTOMA v. BATISTA
Appellate Division, A-5246-02T1, December 2, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18907

No-cause verdict in an automobile negligence action affirmed; because the automobile accident occurred in Massachusetts, the jury instructions included certain Massachusetts motor vehicle provisions; contrary to the plaintiff’s argument, the trial court did not signal its agreement with the defendant’s version of the incident by way of an additional instruction; the additional instruction — which informed the jury to consider whether a reasonably prudent person under the circumstances would have entered the highway “when and in the manner in which the plaintiff here did” — left it to the jury to decide what “when and in the manner” was and whether it was what a reasonably prudent person would have done; regardless, any error would have been harmless because the instruction dealt with the plaintiff’s comparative negligence, which the jury never reached.

PREMISES LIABILITY
SHAKNOVICH v. FISHMAN
Appellate Division, A-1017-04T5, December 2, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18906

Summary judgment for the defendant homeowners in a personal injury action reversed and remanded; the plaintiff fell down the basement stairs while visiting the defendants, who were her daughter and son-in-law, and she attributed her fall to a loose clear vinyl runner on the stairs; considering “all of the surrounding circumstances” to determine whether it was “fair and just” to impose on the defendants “a duty of reasonable care commensurate with the risk of harm,” the plaintiff’s evidence raised a jury question as to whether the defendants had breached their duty to warn her of dangerous conditions of which they were aware or should have been aware and of which she was unaware because there was a material issue of fact as to whether the defendants, who presumably used the stairs “much more frequently” than the plaintiff, should have been aware of the dangerous condition.

PUBLIC EMPLOYEES
RICHARDSON v. BOARD OF TRUSTEES, POLICE AND FIREMEN’S RETIREMENT SYSTEM
Appellate Division, A-2811-04T2, December 2, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18909

Denial of the petitioner corrections officer’s application for accidental disability retirement benefits affirmed; the administrative law judge and the respondent Board of Trustees of the Police and Firemen’s Retirement System concluded that the petitioner had not experienced a traumatic event under Kane v. Bd. of Trs., Police & Firemen’s Ret. Sys. because he failed to demonstrate that his injuries were not “induced by the stress or strain of the normal work effort”; that conclusion was not an abuse of discretion and was consistent with Gable v. Bd. of Trs., Pub. Employees’ Ret. Sys. because the petitioner was not attacked by an inmate but was injured when he attempted to steady himself after a partially restrained inmate — who the petitioner was straddling during an attempt to handcuff the inmate — pushed the petitioner backward.

ADMINISTRATIVE LAW
STATE OF NEW JERSEY, DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF ALCOHOLIC BEVERAGE CONTROL v. SAZ, INC.
Appellate Division, A-3413-04T5, December 2, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18908

Order entered by the Director of the Division of Alcoholic Beverage Control granting summary decision for the petitioner Division on two counts of serving alcoholic beverages to underage patrons and two counts of allowing, permitting, or suffering lewd or immoral activity reversed and remanded; the respondent bar correctly argued (1) that the order should be vacated because there were disputed material facts that could be decided only in an evidentiary hearing and (2) that summary decision circumvented the hearing for which a previous consent order between the parties had provided; the bar should have been given the opportunity to confront and cross-examine the two 20-year-old women who pleaded guilty to the municipal ordinance that prohibits the underage purchase and consumption of alcohol.

SETTLEMENTS
NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY v. SCHINA
Appellate Division, A-6192-03T5, December 1, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18901

Order denying the defendant borrowers’ motion to vacate a consent judgment that was entered in favor of the plaintiff lender reversed and remanded; the lender sued when the borrowers defaulted on two loans, and the parties entered into a stipulation of settlement; when the borrowers allegedly failed to fulfill the terms of the stipulation, the trial court entered the consent judgment, which was based on the stipulation; in their motion to vacate, the borrowers claimed bad faith, misconduct, and misrepresentation by the lender, but the trial court found (1) that the borrowers had defaulted on the stipulation by failing to pay back the loans, (2) that the stipulation and the consent judgment were clear and unambiguous, and (3) that the borrowers offered no evidence to support their motion; however, the borrowers presented material issues of fact that could not be resolved on the motion to vacate and had to be resolved by a trier of fact.

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. M.W.
Appellate Division, A-4268-04T4, December 1, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 18903

Judgment that terminated the defendant mother’s parental rights to her son affirmed substantially for the reasons expressed by the Family Part; pursuant to N.J.S.A. 30:4C-15.1(a), the Family Part concluded that the son’s best interests required termination of the mother’s parental rights (1) because the “overwhelming problem” was that the mother was unable to provide a safe, stable, and appropriate home for her son, (2) because the mother was unable to remove the harm facing her son, who would suffer “serious and enduring” harm if he was removed from his paternal aunt and uncle, (3) because the plaintiff Division of Youth and Family Services had made reasonable efforts to help the mother correct the circumstances that led to the son’s placement with his aunt and uncle but had not been successful, and (4) because returning the son to his mother would be detrimental to him in light of the mother’s “mental limitations” and her lack of access to secure housing.

SENTENCING
STATE v. WILLIAMS
Appellate Division, A-3212-03T4, December 1, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18904

Convictions of three CDS offenses and grant of the State’s motion to sentence the defendant to an extended term as a persistent offender affirmed, but the sentence vacated and the matter remanded for resentencing in accordance with State v. Natale; the trial court imposed a term of 16 years in prison with seven years of parole ineligibility for second-degree possession of cocaine near a school with the intent to distribute, and it merged the other convictions; because the sentence exceeded by one year the statutory presumptive term and the defendant’s appeal was pending when the New Jersey Supreme Court rendered its decision in Natale, pursuant to Natale the defendant was entitled to a new sentencing hearing in which the statutory presumptive term is not considered; contrary to the defendant’s argument, the sentencing record adequately supported the imposition of an extended term.

POST-CONVICTION RELIEF
STATE v. SHEPHERD
Appellate Division, A-5481-03T4, December 1, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18902

Denial of the defendant’s petition for post-conviction relief affirmed; the defendant was sentenced to eight years at the Adult Diagnostic and Treatment Center on convictions of sexual assault and endangering the welfare of a child, and his convictions and sentence were affirmed on appeal; he then filed a pro se PCR petition, claiming ineffective assistance of counsel; the trial court found that an evidentiary hearing was not warranted, and it denied the petition after hearing oral arguments; the alleged deficiencies in trial counsel’s preparation for trial and investigation and questioning of witnesses failed to meet the Strickland/Fritz test for ineffective assistance of counsel.


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