NEW JERSEY LAWYER

DAILY BRIEFING      02/06/2006


News Briefs

STATE APPEALS TO U.S. SUPREME COURT OVER WIFE-KILLER RETRIAL
The state Attorney General’s Office will be waiting to learn if the U.S. Supreme Court agrees to hear its challenge to a federal court order granting a new trial to Robert O. Marshall. The Division of Criminal Justice filed the papers last week. The 3rd U.S. Circuit Court of Appeals ruled in November that Marshall had received ineffective counsel and overturned his death sentence. Marshall, now 65, was convicted in the 1984 murder-for-hire killing of his wife at a Garden State Parkway rest area. 2-3-06

ATTIC-STAIR SUIT ENDS IN $340,000 SETTLEMENT
A Rockaway man and his wife have agreed to settle their case against an attic-stair manufacturer, retailer and installer. In Schleicher v. Century Industries, John E. Schleicher Jr. said that while he was retrieving Christmas decorations in 2002, a strut that popped away from the stair frame left him with permanent vision loss and recurring severe headaches. Schleicher and his attorneys, Amos Gern and Jonathan J. Lerner of Starr Gern Davison & Rubin in Roseland, claimed the strut was improperly fastened with a non-locking nut and it eventually worked loose. The manufacturer argued the original nut must have been replaced; the installer said the unit came fully assembled. Also, the defense ophthalmologist said Schleicher’s long-term eye injury isn’t as severe as he claimed. The manufacturer and lumber yard were defended by David T. Pfund of Reiseman Rosenberg & Pfund in Morris Plains and the installer by Richard M. Tango of McDermott & McGee in Millburn. The case was mediated by C. Judson Hamlin of Purcell Ries Shannon Mulcahy & O'Neill in Bedminster. 2-3-06

PLANNERS AND ZONERS FACE CRASH COURSE
Under regulations proposed by the Department of Community Affairs, members of all zoning and planning boards statewide would be required to take a five-hour course and pass a 10-question test to be eligible to serve. The proposal is generating controversy, with some saying the course may be too simple and others that it would be too hard. There’s also concern the prospect of taking a test could make it harder to recruit board members. The sharpest controversy concerns an exemption for those board members who fill the seats designated for the municipality’s mayor and member of the governing body. For a full story, see the Feb. 6 New Jersey Lawyer. 2-3-06

JUDGE TOSSES SOME EVIDENCE FROM JAILHOUSE LAWYER WHO SNITCHED
U.S. District Judge Jerome B. Simandle in Camden has suppressed evidence supplied to the government from a jailhouse lawyer after he met with an FBI agent and elicited more information from the defendant. However, Simandle refused to suppress evidence from the jailhouse lawyer about the defendant from earlier contact between the ‘lawyer’ and defendant. In United States v. Booker, Simandle noted the defendant originally sought help from the jailhouse lawyer to seek a reduced sentence. But regarding information obtained after the ‘lawyer’ met with the FBI, the judge said the ‘lawyer’ — an informant for several years — was eliciting it as an agent of the government. (A full text of Booker, Facts-on-Call Order No. 19187, can be ordered from NJL Online or by calling 800-670-3370.) 2-3-06

COPS SUE COPS OVER NEW YORK PROTEST
Protesters’ claims of police trampling their rights are common the world over, but New York City has a case with a twist — the protesters are police officers. A few weeks before the 2004 Republican National Convention, off-duty police officers showed up at Mayor Michael Bloomberg’s public appearances to protest a lack of progress in their labor negotiations. Those protests were taped. Their union sued, saying videotaping and photographing their faces — especially by internal affairs officers — were calculated to intimidate them. The city responded that police have taped all demonstrations since Sept. 11 in case protesters get out of hand. 2-3-06



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, FRIDAY, FEBRUARY 3, 2006
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, FEBRUARY 3, 2006, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, FEBRUARY 6, 2006.


APPROVED FOR PUBLICATION
RIGHT TO COUNSEL
STATE v. DREW
Appellate Division, A-3737-02T4, approved for publication February 3, 2006. (19 pages). Facts-on-Call Order No. 92840

In a redacted opinion, the Appellate Division affirmed the conviction for attempted burglary following a trial at which the defendant represented himself but misbehaved and was replaced by stand-by counsel. Contrary to the defendant’s arguments on appeal, (1) the trial court did not err by not terminating his self-representation earlier because his right of self-representation was terminated only when the compromise between respect for his choice and the dignity of the courtroom could no longer be accommodated effectively and (2) counsel was not ineffective for not moving for a mistrial once the defendant’s self-representation was terminated in light of the trial court’s efforts to ensure that the defendant’s conduct did not prejudice his right to a fair and impartial trial.

NOT APPROVED FOR PUBLICATION
LAW AGAINST DISCRIMINATION
OLDJA v. ENTEX IT SERVICES, INC.
Appellate Division, A-3994-04T1, February 3, 2006, not approved for publication. (14 pages). Facts-on-Call Order No. 19185

Summary judgment that dismissed the plaintiff former employee’s complaint against the defendant employer and the defendant supervisors affirmed; the plaintiff was a fundamentalist Christian who claimed that he was constructively discharged when he was not permitted to work 36 hours per week rather than 40 and that he was subjected to hostile work environment harassment based on his religion when his co-workers e-mailed pornography to him or looked at pornography at work; the plaintiff was terminated in January 2001; the trial court properly dismissed the action based on the two-year statute of limitations under the Law Against Discrimination because the last incident of alleged offensive conduct occurred on April 20, 2000, because the complaint was not filed until May 1, 2002, and because there was no basis to find a continuing violation to extend the limitations period under Caggiano v. Fontoura; because the claim was time-barred, it was unnecessary to determine whether the plaintiff presented sufficient proofs to support his claims of hostile work environment and retaliation.

CONSUMER PROTECTION
BARFIELD v. MANLEY
Appellate Division, A-2264-04T5, February 3, 2006, not approved for publication. (13 pages). Facts-on-Call Order No. 19188

Special Civil Part judgment of $3,623 for the plaintiff contractor remanded in an action for payment for completing a home improvement project; the contractor claimed that he was owed $4,123, but the defendant homeowner claimed that the price was $3,000; although the contractor violated the Consumer Fraud Act by working without a written contract signed by the homeowner, the homeowner was not entitled to treble damages because she had not suffered an ascertainable loss; the Special Civil Part correctly determined that the contractor’s recovery was limited to the reasonable value of the services he provided, but the Appellate Division was not satisfied that the award was correctly limited where the Special Civil Part reduced the contractor’s claimed amount by $500 to cover the cost of modifying siding that was improperly installed; in light of the parties’ conflict about the price, the Special Civil Part failed to sufficiently explain its award.

ADMINISTRATIVE LAW
IN RE AMBROSE
Appellate Division, A-1271-04T5, February 3, 2006, not approved for publication. (18 pages). Facts-on-Call Order No. 19186

Final decision of the State Board of Medical Examiners that imposed a formal reprimand, a fine of $10,000, and fees and costs against the defendant doctor for failure to cooperate with an investigation by the Board’s Preliminary Evaluation Committee affirmed; the Committee asked the doctor to appear and to give sworn testimony about his care and treatment of three patients; when the doctor appeared, he did not take an oath or testify because his attorney objected; there were no constitutional, statutory, or evidentiary grounds for reversal because the doctor failed to establish (1) that the Board was not statutorily authorized to conduct the Committee proceeding and to compel his cooperation, (2) that he was entitled to due process protections other than notice, and (3) that there was a specific foundation for his claim that he was prejudiced by the Board members’ combined roles as investigator and adjudicator.

TORT CLAIMS ACT
SLUSKY v. HIGHLAND PARK BOARD OF EDUCATION
Appellate Division, A-610-04T1, February 2, 2006, not approved for publication. (21 pages). Facts-on-Call Order No. 19180

Summary judgment for the defendant Board of Education affirmed in a nuisance action arising from the noise produced by the high school’s air conditioning chiller unit; the plaintiffs’ property abutted the high school; initial attempts to remediate the noise problem were unsuccessful, and the Board declined to enclose the unit; the plaintiffs claimed that the Board was negligent in not providing further remediation, but that decision involved the exercise of discretion and could not result in liability under the Tort Claims Act; therefore, the plaintiffs could proceed only on the theory that there was a dangerous condition of public property, but they failed to establish that the noise was a dangerous condition because “at most” the level of the noise was “slightly above” the maximum permitted by ordinance and because no other neighbors complained; even if the plaintiffs could establish a prima facie case on their dangerous condition theory, the Board’s decision not to enclose the unit was not palpably unreasonable.

PUBLIC EMPLOYEES
IN RE POINSETT
Appellate Division, A-3384-04T2, February 2, 2006, not approved for publication. (6 pages). Facts-on-Call Order No. 19183

Final determination of the New Jersey Transit Employees’ Retirement Plan Committee that the appellant retiree never was entitled to become a member of NJTERP and was not entitled to NJTERP benefits affirmed substantially for the reasons expressed by the Committee; the appellant retired from the Department of Treasury in 1995 with a pension from the Public Employees’ Retirement System, and he then began working for NJT while collecting PERS benefits; the appellant retired from NJT in 2004; the Committee relied on N.J.S.A. 43:3C-1, which bars a former member of one State-established pension plan from later enrolling in or collecting benefits from another pension fund or retirement system that was “established under any law of this State”; even though NJTERP was not created by statute and is not administered by the Division of Pensions and Benefits, the Committee rejected the appellant’s contention that NJTERP was not “established under any law of this State.”

DOMESTIC VIOLENCE
BRIERLEY v. BRIERLEY
Appellate Division, A-3356-04T5, February 2, 2006, not approved for publication. (17 pages). Facts-on-Call Order No. 19181

Final domestic violence restraining order against the defendant ex-husband based on findings of criminal mischief and harassment affirmed; the record “clearly” supported a finding of the defendant’s “longstanding pattern of domestic violence and anger” toward the plaintiff ex-wife; the record supported the findings of criminal mischief and harassment (1) where the defendant admitted going to the plaintiff’s house to scold and humiliate her in front of the parties’ children by using obscenities, (2) where the defendant began screaming and angrily waving his fists, (3) where the defendant intentionally destroyed “in a violent and vindictive manner” a glass decoration that one child had given to the plaintiff, (4) where the children and the plaintiff begged him to leave but he stayed until the plaintiff went to call the police, and (5) where the plaintiff and the children were “extremely upset and frightened” by the defendant’s actions.

DAMAGES
WAI NG v. EDDIE’S PLUMBING & HEATING SPECIALIST, INC.
Appellate Division, A-1638-04T2, February 2, 2006, not approved for publication. (5 pages). Facts-on-Call Order No. 19182

Special Civil Part judgment of $750 for the plaintiff condominium owner reversed in an action arising from the partial installation of a natural gas line to connect to a barbeque on the plaintiff’s deck; the defendant corporation’s employee showed a permit for the work to the plaintiff, who allowed work to begin because he thought that the condominium association had hired the defendant; before work was completed, the plaintiff learned that his neighbor had ordered the line; the plaintiff sued for $750, which he claimed was the cost of finishing the work; reversal was required because the plaintiff’s unsupported testimony that removal of the defendant’s work was required to make him whole and his unsupported estimate of the cost of removing and reinstalling the line lacked the “technical foundation” required to make them trustworthy.

PARENT AND CHILD
POLIMENI v. POLIMENI
Appellate Division, A-2187-04T5, February 2, 2006, not approved for publication. (6 pages). Facts-on-Call Order No. 19184

Post-divorce-judgment order that reduced the plaintiff father’s child support obligation by $858 per month affirmed in part but remanded for a plenary hearing to determine whether a further reduction was warranted; the parties’ 1999 property settlement agreement fixed the father’s obligation at $329 per week; in 2001, the father became the sole proprietor of a business that allegedly provided him with far less income than before, and in 2004 he moved to modify his obligation based on changed circumstances; the parties agreed that the father’s obligation should be reduced by the $858 per month in Social Security benefits that their daughter began receiving after the father turned 65 in 2004; the trial court erred by deciding the father’s motion without a plenary hearing because it had determined that he had established a prima facie case of changed circumstances and because there were factual disputes in light of the defendant mother’s certification, which contested the facts underlying the father’s claim.


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