NEW JERSEY LAWYER

DAILY BRIEFING      02/18/2005


News Briefs

DWI PLEA BARGAIN GUIDELINES COULD BE TOUGHENED
For those charged with driving while intoxicated, the road may be getting even bumpier. The judiciary is publishing for comment two proposed changes in plea bargain guidelines. One would prohibit the dismissal by plea agreement of a refusal to provide a breath sample for first offenders. The other proposal would bar a plea deal in which a person charged with driving with a blood alcohol concentration of 0.10 percent or higher agrees to plead as if the reading had been between 0.08 percent and 0.10 percent. Under such an agreement, a first-time offender would lose driving privileges for three months instead of seven to 12 months. Comments on the proposals may be sent to Comments.Mailbox@judiciary.state.nj.us. The deadline is April 8. 2-17-05

BACKLOGGED CASES DECREASE THE PAST SIX MONTHS
The percentage of backlogged cases in New Jersey courts continued to fall during the six months from July to this January, according to the Administrative Office of the Courts. There were 30,886 cases considered in backlog last month for all trial courts statewide; that’s 11 percent fewer than January 2004. During the six-month period, 588,197 new cases were filed. Trial court and municipal statistical reports are on HYPERLINK "http://www.njcourtsonline.com" njcourtsonline.com. 2-17-05

CELL PHONE BAN NEEDS TEETH
The new state ban on using handheld cell phones while driving appears to have a problem: As much as they’d like to, police officers can’t write a ticket for this secondary offense unless they stop drivers for something else. In the first six months of enforcement, 5,300 tickets were issued. In New York, where it’s a primary offense, an average 10,000 talkers are ticketed monthly. Police chiefs in New Jersey suggest that like the seat belt law, the handheld cell phone ban should be upgraded to a primary offense so they can get tough on enforcement. Legislators aren’t rushing, saying they’re not sure whether a tougher ban would mean safer roads. A full story is in the Feb. 21 New Jersey Lawyer. 2-17-05

VIOXX SUITS CONSOLIDATED
Hundreds of lawsuits filed in federal court blaming New Jersey-based Merck’s painkiller Vioxx for deaths and injuries will be consolidated before U.S. District Judge Eldon E. Fallon in Louisiana. In ordering the move, which is expected to eliminate duplication in discovery and inconsistent pretrial rulings, a seven-member administrative panel of federal judges said Fallon was chosen because he had the time and experience to handle the complex litigation. Once the earliest phases are completed, the cases will be remanded to their home states. Consolidation is not likely to affect the majority of cases pending in state courts, including more than 300 filed in Atlantic City. Only a handful of federal cases are pending in New Jersey. 2-17-05

FEDS MEAN BUSINESS ON DO-NOT-CALL
Even though it was their contractor and not them, two Atlantic City-based time share companies will pay $500,000 to settle charges of violations of the federal do-not-call registry. Flagship Resort Development and Atlantic Palace hired Braglia Marketing Group of Las Vegas, which proceeded to ignore the registry, calling hundreds of thousands of people on the do-not-call list. “You cannot hire subcontractors to break the law for you, and then walk away free of consequences,” said FTC Chairwoman Deborah Platt Majoras. “Millions of Americans have indicated they do not want telemarketers calling them, and we intend to enforce the law that gives them the right to make that choice.” The telemarketing firm itself was fined only $3,500 because it couldn’t pay more than that, but the owners have been banished from the telemarketing business. 2-17-05

NO DAILY BRIEFING ON MONDAY, FEBRUARY 21
New Jersey Lawyer, Inc. will be closed on Monday, February 21, 2005, due to the observance of Presidents' Day. As a result, there will be no Daily Briefing on that day.



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, FEBRUARY 17, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, FEBRUARY 17, 2005:

JUVENILES
STATE v. J.M.
New Jersey Supreme Court, A-79, February 17, 2005. (28 pages). Facts-on-Call Order No. 92313

Rule 5:22-2 is modified to expressly permit a juvenile to present evidence at a probable cause hearing. Furthermore, pursuant to N.J.S.A. 2A:4A-26a and the Attorney General’s Juvenile Waiver Guidelines, the prosecutor’s failure to provide a statement of reasons for seeking waiver requires a remand.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, FEBRUARY 18, 2005.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON THURSDAY, FEBRUARY 17, 2005.

NOT APPROVED FOR PUBLICATION
ATTORNEYS
MARTIN v. DEVITO
Appellate Division, A-6000-03T2, February 17, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17633

Dismissal without prejudice of the plaintiff’s legal malpractice complaint for failure to file an affidavit of merit affirmed; the defendant attorney represented the plaintiff in a suit for damages against prison officials which alleged that excessive force was used against the plaintiff while he was an inmate, and that suit was dismissed on summary judgment; the plaintiff alleged that the defendant committed malpractice (1) by failing to investigate the excessive force claim, (2) by failing to interview witnesses, and (3) by failing to request photographs and videotapes of the plaintiff’s injuries; contrary to the plaintiff’s argument on appeal, an affidavit of merit was required because his case was not a common knowledge case.

TORT CLAIMS ACT
MALEK v. CITY OF BAYONNE
Appellate Division, A-4309-03T2, February 17, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17636

Summary judgment for the defendant City in a Tort Claims Act case remanded for a statement of reasons addressing the plaintiff’s arguments; the plaintiff guardian’s 3-year-old child fell off a slide in the defendant’s park and landed on asphalt; the plaintiff’s expert reported that the defendant had departed from the “accepted standards and practices of care and safety”; the defendant raised “numerous” arguments under the Act, including that it was not responsible for the design, construction, and installation performed by others and that its conduct was not “palpably unreasonable”; the motion judge’s two-paragraph opinion was not an adequate statement of reasons under Rule 1:7-4(a) because it did not indicate the factual or legal basis for its decision.

LAND USE
WENDY’S OLD FASHIONED HAMBURGERS OF NEW YORK, INC. v. ZONING BOARD OF ADJUSTMENT OF NORTH BERGEN
Appellate Division, A-2713-03T2, February 17, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17634

Law Division order dismissing the plaintiff applicant’s action in lieu of prerogative writs challenging the defendant Zoning Board’s denial of its application to build a stand-alone, fast-food restaurant on a tract of land that contained a toy store and a parking area servicing the store affirmed; the plaintiff sought a use variance, a bulk variance, a stand-alone sign variance, and site plan approval; the Law Division properly concluded that the record supported the Board’s finding that there would be additional heavy truck traffic, additional single-unit truck traffic, and unsafe traffic conditions both on the site and off the site and that the restaurant “would exacerbate an already serious local traffic problem.”

CONTRACTS
MARTELL CONSTRUCTION CO., INC. v. EAGLE FENCE CO., INC.
Appellate Division, A-4247-03T3, February 17, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17637

Judgment of $18,127 for the defendant subcontractor in a contract action to recover for additional charges and delays affirmed; the plaintiff contractor won a State contract and subcontracted with the defendant to erect a fence for $82,000; when the start of the project was delayed from the summer to the fall, the defendant sent a letter to the plaintiff increasing its price to $90,638, releasing the plaintiff from damages arising from the delay, estimating additional charges as between $10,000 and $20,000, and requiring the plaintiff to request additional compensation from the State; the plaintiff signed the letter and returned it to the defendant, which began work but experienced weather-related difficulties; after the State did not provide additional compensation, the plaintiff sued the defendant, and the defendant counterclaimed for $120,879.87; using N.J.A.C. 5:30-11.9 as a guide, the trial court limited the defendant’s recovery for damages to 20 percent of the contract price and found that $18,127 was the reasonable value of the defendant’s damages arising from the delay; the trial court’s damages finding was supported by the record.

DRUNK DRIVING
STATE v. BARROSO
Appellate Division, A-2887-03T5, February 17, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17635

Conviction of driving while under the influence of alcohol following the denial of the defendant’s motion to exclude blood alcohol evidence affirmed; there was sufficient evidence to support the Law Division’s conclusion that the officer had probable cause to believe that the defendant was operating her vehicle while under the influence (1) where the officer observed the defendant driving erratically, (2) where her vehicle “repeatedly crossed” the center line and failed to stop at a stop sign, (3) where the officer smelled alcohol coming from the defendant’s vehicle, and (4) where the defendant had trouble standing and was unable to walk without swaying at the police station; furthermore, the 16-day delay in issuing the summons did not warrant dismissal of the charges.


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