NEW JERSEY LAWYER

DAILY BRIEFING      03/25/2005


News Briefs

IN 2-1 RULING, 3RD CIRCUIT UPHOLDS FEDERAL DNA-COLLECTION LAW
The 3rd U.S. Circuit Court of Appeals, in a case from Delaware, has ruled the DNA Analysis Backlog Elimination Act of 2000, which mandates collection of DNA samples from prisoners, parolees and individuals on probation who have committed specified crimes, is constitutional. Writing for the majority in U.S. v. Sczubelek, Judge Jane R. Roth said, “The government’s interest in building a DNA database for identification purposes, similar to its interest in maintaining fingerprint records, outweighs the minimal intrusion into a criminal offender’s diminished expectation of privacy.” In dissent, Judge Theodore A. McKee said, “The Supreme Court has never struck the Fourth Amendment balance in favor of a law enforcement intrusion that was not based on some level of individualized suspicion.” In December, a Superior Court judge upheld the taking of DNA samples in New Jersey, but said the state must destroy samples from convicts upon completion of their sentence and may not share the DNA information with other law-enforcement agencies unless they also agree to destroy it. That decision is being appealed. (A full text of Sczubelek, Facts-on-Call Order No. 92378, can be ordered from NJL Online or by calling 800-670-3370.) 3-24-05

AT LEGISLATIVE HEARING, ACCUSATION OF POISONING DOG IS PRIVILEGED
You could say Larry Angel is no fan of Mayor Robert Hagaman of Mullica Township. Angel told the Senate Judiciary Committee, which was considering and eventually OK’d Hagaman’s appointment to the Pinelands Commission, the mayor poisoned his dog and slashed his tires. Hagaman sued for defamation. The case, however, has now been dismissed. In Hagaman v. Angel, Superior Court Judge Carol E. Higbee of Atlantic County said the statements fall under the absolute privilege for legislative testimony. Higbee said, “The testimony was related to the proceeding because it pertained to Mr. Hagaman’s qualification for serving on the Pinelands Commission.” 3-24-05

JAILS CAN SEARCH EMPLOYEES, 3RD CIRCUIT RULES
A jail can randomly search employees for contraband as they arrive for work, the 3rd U.S. Circuit Court of Appeals ruled. A union representing employees of Allegheny County sued in 2003, claiming the prison’s practice of randomly checking guards and staff for drugs and weapons violated the Fourth Amendment’s protection against unreasonable searches. In Allegheny County Prison Employees Independent Union v. County of Allegheny, Judge Walter K. Stapleton, in a non-precedential opinion, affirmed a lower court ruling. Stapleton noted jail employees had a ‘‘diminished expectation of privacy’’ while on prison grounds. (A full text of Allegheny County Prison, Facts-on-Call Order No. 17768, can be ordered from NJL Online or by calling 800-670-3370.) 3-24-05

NY JUDGE REDUCES LAW FIRM’S AWARD IN CLIENT-THEFT CASE
A judge has eliminated the $1.2 million in punitive damages from a $1.4 million jury verdict against a law firm and one of its former attorneys accused of client theft. The jury had awarded the money to Rosenberg Minc & Armstrong of Queens, which accused rival personal-injury firm, Mallilo & Grossman and its former partner Mason Pimsler, of stealing clients during the late 1990s. New York State Supreme Court Justice Rosalyn Richter, while vacating the punitive damages, upheld an award against Pimsler for unjust enrichment and an award against him and the firm for misappropriation of clients. Pimsler, who has been disbarred, pleaded guilty in 1999 to criminal impersonation in a scheme in which he called Rosenberg Minc’s answering service and, by sounding like a partner in the firm, requested and received the names of clients. 3-24-05

COURT RULES FORMER TYCO CHIEF’S LEGAL BILLS ARE COVERED
A liability insurer of West Windsor-based Tyco International Ltd. must pay legal defense bills for former chief executive L. Dennis Kozlowski, who is on trial on corporate-looting charges, a New York appeals court has ruled. The court said Federal Insurance Co. must pay all of Kozlowski’s legal-defense bills subject to recoupment when his liabilities, if any, are determined. Federal Insurance Co. tried to void the coverage claiming that Kozlowski, as CEO from 1992 to 2002, misstated information about the company's finances and other matters in his insurance application. Kozlowski sued, saying the allegedly false statements were filed with the federal Securities and Exchange Commission, and that a clause in the policies barred Federal from attributing the statements to him. 3-24-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, MARCH 24, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, MARCH 24, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON MONDAY, MARCH 28, 2005.

NEW JERSEY COURTS WILL BE CLOSED ON FRIDAY, MARCH 25, 2005, AND NO OPINIONS WILL BE RELEASED.



APPROVED FOR PUBLICATION
APPELLATE PROCEDURE
STATE v. JOHNSON
Appellate Division, A-3924-03T4, approved for publication March 24, 2005. (13 pages). Facts-on-Call Order No. 92379

The next-business-day rule applies to the computation of the 10-day statutory period within which the State may file a notice of appeal from a discretionary sentence under N.J.S.A. 2C:44-1f(2).

NOT APPROVED FOR PUBLICATION
WORKERS’ COMPENSATION
QUINN v. JOULE TEMPORARIES
Appellate Division, A-4846-03T2, March 24, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17769

Denial of the respondent temporary employment agency’s motion to implead its client in a workers’ compensation case affirmed; the petitioner, who was the respondent’s employee, injured her lower back while working on the client’s premises, and she filed a workers’ compensation claim against the respondent and a negligence claim against the client; the petitioner’s negligence claim was dismissed on August 22, 1997, an order approving the settlement of her workers’ compensation claim was entered on June 25, 1998, and the respondent did not move to implead the client until August 3, 2001; the judge of compensation properly concluded that she lacked jurisdiction to reopen the case because, under N.J.S.A. 34:15-25, compensation courts have jurisdiction to reopen concluded cases only if a respondent moves to commute an award.

NEGLIGENCE
HERNANDEZ v. JERSEY CITY BOARD OF EDUCATION
Appellate Division, A-4791-03T5, March 24, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17767

Summary judgment for the defendants in an action alleging negligent supervision by school employees affirmed; while in school, the plaintiff father’s son suffered a brain hemorrhage that confined him to a wheelchair and caused neurological deficits; the son was a second-grade student with a pre-existing congenital right brain abnormality known to lead to a brain hemorrhage, even without trauma; the plaintiff claimed that the hemorrhage was caused by a traumatic event that occurred during a play period which was supervised by two teachers’ aides, neither of whom saw the son fall down or saw another student strike the son; there was no competent evidence of negligent supervision by school employees where the plaintiff relied on inadmissible hearsay in the form of a certification and deposition testimony from the son’s mother that recounted a conversation with the son six months after the incident and an unsworn investigator’s report.

PARENT AND CHILD
SANDELLO v. SANDELLO
Appellate Division, A-6744-03T1, March 24, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 17771

Post-divorce-judgment order granting the plaintiff ex-wife’s motion to relocate to Michigan with the parties’ daughter affirmed; the daughter was born in March 1994, the parties divorced in November 1994, and the parties agreed that the plaintiff would have primary physical custody and that the defendant ex-husband would have “liberal visitation”; the plaintiff’s second husband found a job in Michigan after his employer told him that downsizing would occur; the Family Part applied Baures v. Lewis and found that the move was being made in good faith but that the proposed parenting plan was insufficient to determine whether the move was in the daughter’s best interests; after asking for further certifications from the parties and receiving a “lengthy, detailed certification” from the plaintiff, the Family Part granted the motion; a plenary hearing was not required, the plaintiff satisfied the Baures factors, and the Family Part’s decision was supported by the evidence.

CRIMINAL TRIALS
STATE v. COLMYER
Appellate Division, A-6159-03T2, March 24, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17770

Order denying the defendant’s request for substitution of attorney reversed; the denial of the defendant’s request, in effect, was a grant of the prosecutor’s informal application to disqualify the substituted attorney, and the trial court denied the request without any competent evidence of the grounds for disqualification and without setting forth its findings of fact and conclusions of law; if the State wishes to pursue the matter, it must file a formal motion; the substituted attorney’s representation of an investigator in the Prosecutor’s Office in civil litigation about hiring, without more, did not provide an adequate basis for disqualification.

FROM THE ADMINISTRATIVE AGENCIES
WORKERS’ COMPENSATION
SANTOS v. TYCO PLASTICS
Claim Petition No. 02-37834, Final Agency Decision: November 18, 2004, released for publication March 7, 2005. By Womack, Supervising J.W.C. (8 pages).

The judge of compensation found that the petitioner was not entitled to benefits for his claims of pulmonary disability or hearing loss but that he was entitled to benefits for his tinnitus based on the demonstrable objective evidence. The petitioner worked for more than 10 years as a machine operator at the respondent’s facility, which he claimed had a lot of dust from ground plastic, a lot of fumes, and a lot of noise.

WORKERS’ COMPENSATION
PAULSON v. KNOBLE CONSTRUCTION
Claim Petition No. 2001-24811, Final Agency Decision: November 29, 2004, released for publication March 7, 2005. By Tuber, J.W.C. (10 pages).

The judge of compensation awarded the petitioner permanent partial disability benefits for a disability fixed at 12.5 percent for a chronic lumbosacral syndrome with chronic myofascitis based on the evidence and his evaluation of the petitioner as a “whole person” to determine how his injuries from a work-related motor vehicle accident affected his ability to work and his ordinary life activities. The petitioner did not miss any time from work after the accident, but the respondent terminated him after 18 years of employment. The judge of compensation accepted the petitioner’s testimony that he had been terminated because he could no longer perform his job, found that the petitioner’s earning ability had been significantly reduced as a result of the accident, and accepted the findings of one physician as objective medical evidence of the petitioner’s lumbar pathology.


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