NEW JERSEY LAWYER

DAILY BRIEFING      02/17/2005


News Briefs

MANHATTAN LAW FIRM OPENING NEWARK OFFICE
Martin Clearwater & Bell, one of New York’s oldest and largest professional liability law firms with more than 80 attorneys in its Manhattan, Nassau County and Westchester County offices, will expand both its practice and its presence. The firm is adding an employment and labor law practice group led by Steven M. Berlin, previously head of Buchanan Ingersoll’s New York and New Jersey labor and employment group. He will head MC&B’s new office in Newark, set to open later this month. 2-16-05

INVESTMENT FIRM TERMINATES MCGREEVEY FRIEND
According to disclosure forms filed with the federal Municipal Securities Rulemaking Board, Wall Street investment firm Bear, Stearns terminated a $10,000-a-month consulting contract with James E. McGreevey’s friend and political ally John D. Arseneault several months after the former governor left office. The consulting gig brought $995,000, including bonuses, to the Chatham defense attorney, one of four New Jersey lobbyists and professionals paid to help financial giants get a piece of the state’s lucrative public financing transactions. Although the underwriter credited Arseneault with helping obtain work on eight bond deals, state officials say he played no role. On Nov. 5, acting Gov. Richard J. Codey, preparing to take over for McGreevey, said he would outlaw payments to middlemen like Arseneault if they’re contingent on the firm winning state work; he signed the executive order in December. The disclosure forms show Bear, Stearns terminated its arrangement with Arseneault on Nov. 30. 2-16-05

VIATICAL REGULATION BILL PASSES STATE SENATE
A bill that would overhaul the regulation of the “life settlement” business in New Jersey has passed the Senate 35-1. S-1940 would reflect a market shift in the viatical industry, in which terminally ill people would sign over their life insurance policy for cash to a broker who would pay the premiums until the person died. The concept flourished in the 1980s with the spread of AIDS, but many ventures went bankrupt with the advent of life-extending drugs, and several companies were accused of fraud. The industry now is more conservative and the companies themselves are pushing for more extensive regulation. An Assembly version of the bill, A-3438, was referred to its Financial Institutions and Insurance Committee in October and awaits review. 2-16-05

NEW YORK COURT BANS TIME LIMIT ON DNA TESTING
New York’s highest court has ruled courts cannot limit the time between a conviction and a request for DNA testing. “A person may move for DNA testing … at any time,” the state Court of Appeals held in a ruling stemming from two Monroe County rape cases. The key threshold for DNA testing — evidence that if tested might have led to a different verdict — still stands, pointed out Assistant District Attorney Wendy Evans Lehmann. That means the ruling will do little to help the rape cases defendants Bernard Pitts and Anthony Barnwell, but could help others based on its mandate that prosecutors reveal all physical evidence that could be tested. 2-16-05

STRESSED OUT? TRY MAKING MUSIC
Looks like Mom and Dad were right when thhe nagged you to practice the piano — but not for the reason she thought. While it probably wouldn’t have gotten you to Carnegie Hall anyway, it could provide an alternative to tranquilizers, according to the latest issue of Medical Science Monitor. Researchers induced stress in 32 adult volunteers, none of whom considered themselves musical, and then divided participants into three groups — one continued the stressful activity, another read and a third participated in a recreational music program. Before and after each phase, researchers sampled each subject’s blood for known genomic markers that turn on biological responses associated with health problems. Based on the results, Barry Bittman, who led the research team, noted, “With ongoing research, recreational music making could potentially serve as a rational stress reduction activity along with other lifestyle strategies, including healthy nutrition and exercise.” 2-16-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, FEBRUARY 16, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, FEBRUARY 16, 2005.

THE SUPREME COURT has announced that it will release an opinion in STATE v. J.M., A-79, on February 17, 2005. The issue on appeal in J.M. addresses whether a juvenile was entitled to a new waiver hearing on the State’s application to prosecute him as an adult because the Family Part had refused to allow the juvenile to testify at his first waiver hearing and because the prosecutor had failed to provide a statement of reasons for the waiver application.



APPROVED FOR PUBLICATION
PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. H.B.
Appellate Division, A-758-04T2, approved for publication February 16, 2005. (54 pages). Facts-on-Call Order No. 92312

In an abuse and neglect action by the Division of Youth and Family Services alleging that the defendant mother had exposed her daughter to the risk of emotional and physical harm by allowing her husband, who was the daughter’s stepfather, to live in the home after learning that the daughter had accused him of sexually molesting her over an 18-month period, (1) the Family Part erred by refusing to interview the daughter in camera, (2) the Family Part erred by refusing to direct the prosecutor to turn over the stepfather’s Megan’s Law file, and (3) when an investigation of allegations of abuse and neglect requires the removal and separation of a central family member, DYFS has a special duty to closely monitor the case and to keep abreast of any development that might call into question the continued need for the separation.

NOT APPROVED FOR PUBLICATION
 
NO OPINIONS NOT APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON WEDNESDAY, FEBRUARY 16, 2005.

THE FOLLOWING OPINIONS NOT APPROVED FOR PUBLICATION HAVE BEEN RELEASED:


HUSBAND AND WIFE
URIBE-SANTANA v. SANTANA
Appellate Division, A-6327-02T5, February 15, 2005, not approved for publication. (32 pages). Facts-on-Call Order No. 17632

Family Part order affirmed as to its requirement that the defendant ex-husband pay reimbursement alimony to the plaintiff ex-wife but reversed and remanded as to issues raised by the plaintiff on cross-appeal; the plaintiff supported the parties’ daughter and the defendant’s son and sent money to the defendant while he attended medical school in the Dominican Republic, and the defendant worked as a dialysis technician after he earned his degree; contrary to the defendant’s arguments on appeal, the Family Part did not err by awarding reimbursement alimony, and it properly considered the relevant N.J.S.A. 2A:34-23(b) factors; as to the plaintiff’s contentions, the Family Part erred (1) in calculating the child support component of the reimbursement alimony, (2) in calculating the equitable distribution, (3) by failing to require the defendant to maintain life insurance to secure his child support obligation, and (4) in determining attorney’s fees.

PRETRIAL INTERVENTION
STATE v. ROZIER
Appellate Division, A-6262-03T4, February 15, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17631

Denial of the defendant’s motion for reconsideration of the denial of his motion for re-entry into the Camden County Pretrial Intervention Program reversed and remanded; the defendant was admitted into PTI contingent upon his payment of restitution and fines, but he was injured while working and notified his local supervising probation officer that he was unable to pay; the PTI program sent the defendant notice of a PTI termination hearing by certified mail, but that notice was returned unclaimed; the defendant’s participation in the PTI program was terminated when he did not appear at the hearing; because of the “clear address discrepancies” in the record, the Law Division was directed to conduct a hearing to determine whether the defendant’s assertion that he had not received the hearing notice was true.

PAROLE
GIBBONE v. NEW JERSEY STATE PAROLE BOARD
Appellate Division, A-4386-02T3, February 15, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17630

Final decision of the Parole Board that denied the appellant’s request for parole and established a 36-month future eligibility term affirmed; the appellant pleaded guilty to first-degree aggravated manslaughter in 1992 and was sentenced to 30 years of imprisonment with a 10-year period of parole ineligibility; the Parole Board considered the appellant’s mitigating factors and a psychological evaluation that did not support his release, and it was concerned about the appellant’s lack of insight into his criminal behavior and his attempt to minimize his conduct; the Parole Board’s decision that there was a substantial likelihood that the appellant would commit another crime if he was released was supported by the record.

MENTAL HEALTH
IN RE CIVIL COMMITMENT OF R.E.C.
Appellate Division, A-3525-03T2, February 15, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17629

Order continuing the appellant’s involuntary civil commitment as a sexually violent predator affirmed; the appellant was a 61-year-old man who was convicted of sexual offenses involving children; after three experts testified for the State at the appellant’s sixth review hearing, the Law Division found that the appellant was “highly likely” to engage in sexually violent acts if he was released and that there was not a discharge plan that was adequate to control his dangerousness; the record was sufficient to support the Law Division’s determination to continue the appellant’s commitment.


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