NEW JERSEY LAWYER

DAILY BRIEFING      05/13/2005


News Briefs

OMBUDSMAN FOR JERSEY COURTS
There soon will be an ombudsman in each of the 15 vicinages to help the public better navigate the legal process. The judiciary first began experimenting with an ombudsman process nearly 10 years ago. The expansion to all vicinages was announced by Judge Philip S. Carchman, administrative director of the courts, to improve customer services in the state’s courthouses. Duties of the ombudsmen will include explaining court procedures, programs and services; helping pro se litigants; directing the public to appropriate staff; helping resolve customer complaints, referring customers to social service or other agencies; distributing informational material; and developing court tours and outreach programs. Ombudsmen cannot offer legal advice, but can provide material for lawyer referral services. The program began in 1996 as a pilot in Camden County; later Essex and Hudson joined, and five other vicinages have staffers serving in the role part-time. 5-12-05

HOBERMAN READY TO TAKE OVER STATE BAR
The passing of the presidential baton from Edwin J. McCreedy to Stuart A. Hoberman will be one of the featured events at the annual meeting of the New Jersey State Bar Association May 18-20 at Bally’s in Atlantic City. Hoberman, 58, a kid from the Bronx, is head of the financial services section at Wilentz, Goldman & Spitzer in Woodbridge. He’s profiled in the May 16 New Jersey Lawyer. The annual meeting starts Wednesday with a trustees meeting, and will get under way in earnest Thursday morning. The installation of officers will take place at the annual dinner that night. There will be seminars and exhibits throughout Thursday and Friday. 5-12-05

PAROLE CHAIRMAN SEEKING COMMUNITY HELP
John D’Amico Jr., chairman of the state Parole Board, has been making the rounds asking community leaders for more re-entry help for parolees. D’Amico, a former Superior Court judge, has held several meetings for church groups, civic leaders, charities, teachers and social service workers to ask them to stretch just a little more to help some of the state’s 14,000 parolees. After a gathering at Passaic Community College in Paterson this week, D’Amico came away with the signatures of 97 people who agreed to help parolees find jobs, education, transportation, drug and alcohol treatment, and other services. The goal: to keep parolees from going back to prison. “The causes of recidivism are difficult and complex, and the challenges and barriers facing ex-offenders as they re-enter the community are daunting,” D’Amico said. 5-12-05

CELL PHONE JUNKIES IN CHICAGO WILL HANG UP OR COUGH UP
The Chicago City Council has voted to ban drivers from using hand-held cell phones. The ban will start this summer and violators will be fined $50 and up to $200 if an accident occurs. Some Chicago officials argued against the ban, saying there are few signs indicating when a driver is actually in the city. Some New Jersey municipalities abandoned their cell phone ordinances when they encountered a similar issue and were advised by their attorneys the bans were practically unenforceable. But the New Jersey legislature solved that problem by creating a statewide ban, although so far it’s only a “secondary” offense, meaning a police officer has to stop the driver for something else. About 1,000 tickets are issued here each month. In New York, where it’s a primary offense like Chicago’s ban, about 10,000 tickets are issued monthly. 5-12-05

CHOW CHOWS DOWN ON CAT; OWNER AWARDED $45,000
While a cat can be had at an animal shelter for the price of spaying or neutering, once it becomes somebody’s pet, it means a lot more. Seattle Judge Barbara L. Linde has awarded 71-year-old Paula Roemer $30,000 for the value of her pet, and $15,000 for the emotional distress of its loss. The cat was killed last year by a neighbor’s chow. The judge’s ruling resembled that of a California jury’s award of $30,000 for the value of a dog, but it may be a record for the death of a cat. Gray Wallace, who owned the chow, has spent three weeks in jail and three months under house arrest for an animal control violation. Roemer said she rescued the cat during a trip to Israel. She says she will donate whatever she collects to an animal protection group. 5-12-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, MAY 12, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, MAY 12, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON FRIDAY, MAY 13, 2005.


APPROVED FOR PUBLICATION
ATTORNEYS
CONNELL, FOLEY & GEISER, LLP v. ISRAEL TRAVEL ADVISORY SERVICE, INC.
Appellate Division, A-2699-03T1, approved for publication May 12, 2005. (23 pages). Facts-on-Call Order No. 92453

Actions that accrued under Circle Chevrolet Co. v. Giordano, Halleran & Ciesla but that were not filed until after Olds v. Donnelly are governed by Olds, which held that attorney malpractice actions are exempt from the entire controversy doctrine. Although successor attorneys owe no duty of care to their predecessors and cannot be sued by their predecessors for contribution for legal malpractice, co-counsel owe a duty of care and are subject to the Joint Tortfeasors Contribution Law.

APPELLATE PROCEDURE
STATE v. VITIELLO
Appellate Division, A-513-03T1, approved for publication May 12, 2005. (7 pages). Facts-on-Call Order No. 92455

When a case is dismissed by the assignment judge with the county prosecutor’s consent, the victim or complainant may not appeal.

MENTAL HEALTH
IN RE CIVIL COMMITMENT OF P.Z.H.
Appellate Division, A-2502-02T2, approved for publication May 12, 2005. (14 pages). Facts-on-Call Order No. 92454

Current incarceration for an index offense is not a prerequisite for commitment under the Sexually Violent Predator Act. The Act authorizes commitment if the defendant has been convicted of a predicate offense in the past and if the State proves by clear and convincing evidence that the defendant (1) currently meets the definition of a sexually violent predator and (2) currently presents a high risk of committing another sexually violent offense if he is released.

LAND USE
SIMEONE v. ZONING BOARD OF ADJUSTMENT OF THE TOWNSHIP OF EAST HANOVER
Appellate Division, A-785-03T3, approved for publication May 4, 2005. (13 pages). Facts-on-Call Order No. 92456

Although the municipality’s treatment of an isolated undersized lot as a separate lot for more than 30 years precluded a finding that the hardship to the owner was self-created by an apparently illegal subdivision, the Zoning Board properly denied variances from bulk and side-yard requirements because the size of the house that the owner sought to build was excessive.

NOT APPROVED FOR PUBLICATION
ATTORNEYS
GARRUBBO, ROMANKOW AND RINALDO, ESQS. v. KENILWORTH VETERANS CENTER, INC.
Appellate Division, A-6501-02T5, May 12, 2005, not approved for publication. (15 pages). Facts-on-Call Order No. 17948

Summary judgment for the plaintiff law firm awarding it $61,769.15 in its action to recover legal fees and dismissing the defendant client’s counterclaim for legal malpractice affirmed; the trial court properly concluded that the opinion of the defendant’s expert was an inadmissible net opinion because it was “a compilation of personal opinions and conclusionary language without reference to competent factual evidence” and could be “reduced to the bald assertion that if the matter settled earlier the defendant would not have had as large a legal bill”; however, it was clear that the defendant did not want to settle, and the plaintiff was required to pursue the defendant’s goals to the extent that the law allows, even though the plaintiff might have believed that the defendant’s goals were “unwise or ill-considered.”

NEGLIGENCE
LIGUORI v. ATLANTIC CITY SHOWBOAT, INC.
Appellate Division, A-7039-03T1, May 12, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17946

Small claims judgment awarding $2,501 to the plaintiff against the defendant casino affirmed; when the plaintiff, who is a mechanic, retrieved his vehicle and found the engine mount broken, the casino parking valets gave “three different stories” about what had happened; “in a thorough and thoughtful opinion” based primarily on credibility determinations and the casino’s failure to present any of the valets as witnesses to the handling of the vehicle, the motion court properly concluded that a preponderance of the evidence supported a conclusion that the valets had damaged the vehicle; the motion court’s decision was not construed as having relied on the doctrine of res ipsa loquitur or as holding the casino strictly liable for every vehicle that is driven into the valet parking area and that suffers engine failure while in the garage.

CHARITABLE IMMUNITY
FORMALARIE v. CENTENARY COLLEGE
Appellate Division, A-7091-03T3, May 12, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 17947

Summary judgment dismissing the plaintiff’s negligence action against the defendant college on the basis of the Charitable Immunity Act affirmed; the plaintiff, who was an employee of the State Department of Labor, fell on ice or snow on the defendant’s premises while attending, as part of her job, a meeting of the Work Force Investment Board hosted by the defendant; in view of the liberality with which the courts must interpret the Charitable Immunity Act, the motion court correctly concluded that the plaintiff was a “beneficiary of the educational benefits provided by the defendant” because, on the day of the accident, she was a “direct recipient” of the college’s “educational works” — specifically, the provision of “space for community groups and organizations to conduct meetings.”

DRUNK DRIVING
STATE v. DATTA
Appellate Division, A-518-04T5, May 11, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17944

Conviction of driving while intoxicated affirmed; contrary to the defendant’s arguments on appeal, (1) the police had probable cause to arrest him where an officer found the defendant sleeping in his car parked on the side of the Garden State Parkway at about 2 a.m., smelled alcohol on his breath, and observed his red and watery eyes and his slurred speech, (2) the State met its burden to have the Breathalyzer test results admitted, even though the wrong serial number of the Breathalyzer was entered into the officer’s report, where the officer testified that the entry was a clerical error and where the Municipal Court found the officer’s testimony credible, (3) the Breathalyzer tests, which were conducted about an hour after the defendant’s arrest, were conducted within a reasonable time after the arrest, and (4) the Municipal Court did not abuse its discretion by continuing the trial for one week to allow the State to present rebuttal evidence about the Breathalyzer’s serial number.

DRUNK DRIVING
STATE v. ROHRER
Appellate Division, A-6131-03T5, May 11, 2005, not approved for publication. (11 pages). Facts-on-Call Order No. 17945

Conviction of driving while intoxicated reversed because the Law Division’s finding of the time of operation of a motor vehicle was not supported by the evidence; at about 9 p.m., an officer observed the defendant changing a tire on a vehicle that was stopped on the shoulder of an interstate highway; the defendant was the only person at the scene, but he never acknowledged that he had driven the vehicle to its location; the defendant was arrested after performing field sobriety tests, and he registered a .22 blood alcohol level on a Breathalyzer test; the Law Division’s finding that the defendant had driven the car before his encounter with the officer was “reasonably inferable” from the evidence, but its finding that the defendant had driven to the location within one hour of the officer’s arrival was not supported by the record where the officer had just begun his shift and where there was no evidence that an officer on the prior shift had driven by the location and had observed that the defendant’s vehicle was not present.

DRUNK DRIVING
STATE v. SEPE
Appellate Division, A-5637-03T5, May 11, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 17943

Convictions of refusal to take a Breathalyzer test and hindering apprehension by giving a false name to a law enforcement officer affirmed; the defendant, who had two prior convictions for driving while intoxicated, gave the police three different driver’s licenses with different names on them; for the refusal charge, the defendant was sentenced as a third-time offender and had to forfeit his driving privileges for 10 years; contrary to the defendant’s arguments on appeal, (1) he was correctly sentenced as a third-time offender because prior DWI convictions count as prior convictions for a later conviction for refusing to take a Breathalyzer test and (2) it is “firmly settled” that a defendant in a DWI case is not entitled to a trial by jury.


To Order Decisions

Now you can order the full text of these decisions directly from the Daily Briefing. Just click on the Facts-on-Call Order Number and the order page will open. And of course you still can order by phone by calling 1-800-670-3370. (A PIN number is required to use the service. If you need a free PIN Number, call 800-310-8678.)


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