NEW JERSEY LAWYER

DAILY BRIEFING      05/25/2005


News Briefs

JUDGE DISQUALIFIES MORRISTOWN FIRM FROM HANDLING CASE
Superior Court Judge Peter E. Doyne of Bergen County has disqualified the Morristown firm of Niedweske Barber from representing three shareholders of a corporation sued by the other shareholder. In DiGrandi v. Miller, Doyne ruled Linda J. Niedweske had served as the attorney for the corporation at the time the plaintiff was its sole owner. Doyne rejected Niedweske’s contention that the firm should not be disqualified because she was not handling the litigation between the shareholders. (A full text of DiGrandi, Facts-on-Call Order No. 18000, can be ordered from NJL Online or by calling 800-670-3370.) 5-24-05

SATELLITE TRACKING OF PREDATOR LAW ON TRACK TO PASSAGE
After languishing in the state legislature for several months, legislation that would require police to use satellite systems to constantly track sex offenders appears headed for passage now that acting Gov. Richard J. Codey has endorsed the concept. “We must do everything possible to keep our children safe from sexual predators,” Codey, who also is Senate president, said while stressing that the systems the identical bills propose “would let officers know with certainty whether these individuals are in places they shouldn’t be.” S-1889 is co-sponsored by Sens. Fred H. Madden (D-Camden) and Stephen M. Sweeney (D-Cumberland), and A-4118 is co-sponsored by Assemblymen Linda R. Greenstein (D-Middlesex) Douglas A. Fisher (D-Cumberland) and Peter J. Barnes (D-Middlesex). 5-24-05

U.S. LAUNCHING NATIONAL LIST OF SEX OFFENDERS
While New Jersey has some major problem with its internet listing of the names and addresses of convicted sex offenders, the U.S. Justice Department is developing its own website listing sex offender identities nationwide. Attorney General Alberto Gonzales said that the site, due to be operating in about two months, will cull names listed by New Jersey and the other 48 states with online sex offender listings, so that visitors can determine if a sex offender has relocated. Separately, the state Division of Criminal Justice has reportedly said that the state’s sex offender website is missing about 20 percent of the high-risk offenders that are supposed to be carried. 5-24-05

100,000 VIOXX CASES LIKELY
Whitehouse Station-based Merck & Co. could face as many as 100,000 damage suits over its now-withdrawn pain reliever Vioxx, according to U.S. District Court Judge Eldon Fallon of New Orleans, who is handling pre-trial issues for the federal cases. There have been about 2,000 such cases filed so far in federal and state courts, and investment analysts estimate Merck’s potential liability at $18 billion. Atlantic County Superior Court Judge Carol E. Higbee, who is managing the cases filed in New Jersey, reportedly told Fallon she will cooperate to ensure there is no “friction” between jurisdictions. 5-24-05

A LAST REQUEST BEFORE EXECUTION IS HONORABLE, BUT DENIED
If you’re condemned to die, what would be your last request? Convicted murderer Gregory Johnson, scheduled for execution today in Indiana, asked that part of his liver be transplanted to his sister, who has cirrhosis. The Indiana Parole Board denied the request. If the transplant occurred, Johnson would have had to recover about two months before he could be executed. He contended that post-execution transplant would be impossible because the lethal injection chemicals would contaminate his liver. 5-24-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, MAY 24, 2005
THE FOLLOWING OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, MAY 24, 2005:

MUNICIPAL CORPORATIONS
MUNICIPAL COUNCIL OF THE CITY OF NEWARK v. JAMES
New Jersey Supreme Court, A-52, May 24, 2005. (25 pages). Facts-on-Call Order No. 92476

Under the circumstances of this case, the Faulkner Act allocates the responsibility for initiating, negotiating, and signing contracts to the Mayor of the City of Newark, and the City Council is charged with approving or rejecting the contracts that the Mayor presents to it.

CRIMINAL TRIALS
STATE v. O’BRIEN
New Jersey Supreme Court, A-36/75, May 24, 2005. (8 pages). Facts-on-Call Order No. 92477

In an appeal arising from convictions of knowing or purposeful murder and possession of a weapon for an unlawful purpose, the New Jersey Supreme Court affirmed in part based on the unanimous opinion of the Appellate Division on seven issues, reported in a redacted opinion at — N.J. Super. — (2005), the Supreme Court reversed in part based on the Appellate Division’s dissent on one issue, and it reinstated the defendant’s conviction and sentence. The trial court did not err by refusing to ask prospective jurors during voir dire whether they could accept that procedures were in place to provide adequately for the defendant while protecting the public safety if the defendant was acquitted by reason of insanity, the trial court’s voir dire was sufficiently probing and thorough to secure an unbiased jury, and the prosecutor’s questioning of the defendant’s psychiatric expert did not exceed the bounds of proper cross-examination.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, MAY 25, 2005.



APPROVED FOR PUBLICATION
CRIMINAL TRIALS
STATE v. O’BRIEN
Appellate Division, A-5500-99T4, approved for publication May 24, 2005. (40 pages). Facts-on-Call Order No. 92478

In an appeal from convictions of purposeful or knowing murder and possession of a weapon for an unlawful purpose, although the voir dire was sufficiently probing and thorough to secure an unbiased jury, a new trial was required because the prosecutor engaged in a line of questioning that was inappropriate and harassing during his cross-examination of the defendant’s primary expert witness on the issue of insanity, which was the sole issue on trial. Judge Carchman dissented.

NOT APPROVED FOR PUBLICATION
PREMISES LIABILITY
TAYLOR v. WOODLAND MANOR ASSOCIATES, L.L.C.
Appellate Division, A-1235-04T2, May 24, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17999

Denial of the defendant apartment complex owner’s motions for a directed verdict at the close of the plaintiff tenant’s case and for judgment notwithstanding the verdict or a new trial affirmed; the defendant’s superintendent did not salt or sand the sidewalks and the parking lots at the defendant’s complex during a severe ice storm and did not call the landscaper with whom the defendant had a contract for maintenance; the plaintiff broke her ankle when she slipped on ice on the sidewalk near her apartment, and she presented expert testimony that salt and either sand or kitty litter should have been applied to the sidewalks and parking lots; reasonable jurors could have concluded that it was not reasonable for the superintendent to do nothing and to allow ice to accumulate on the sidewalks and the parking lots and that the superintendent should have either applied de-icing agents himself or called the landscaper to apply them.

LAND USE
HI-SOUTH PLAINFIELD, L.L.C. v. SOUTH PLAINFIELD PLANNING BOARD
Appellate Division, A-6872-02T1, May 24, 2005, not approved for publication. (20 pages). Facts-on-Call Order No. 17996

Order dismissing the plaintiff motel owner’s complaint in lieu of prerogative writs challenging the grant of site plan approval and bulk variances by the defendant municipal Planning Board to the defendant hotel developer affirmed; the developer proposed constructing a Hampton Inn across from the plaintiff’s Holiday Inn in the Regional Hospitality zone; contrary to the plaintiff’s arguments on appeal, (1) the trial court did base its decision on the appropriate record, (2) the Board and the trial court properly analyzed the developer’s application pursuant to the relevant statutory criteria, (3) the record “amply” supported the Board’s conclusion that the variances would advance the goals of the Municipal Land Use Law, and (4) although the local ordinance did not include the RH zone as one in which signs were permitted, the Board acted within its authority to interpret its own ordinance when it concluded that this was an oversight.

CIVIL PROCEDURE
ROBLES v. COLGERO
Appellate Division, A-6465-03T1, May 24, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17998

Special Civil Part judgment in the amount of $15,000 in favor of the plaintiff contractor reversed and remanded in an action arising from repair work to the defendant’s home; the pro se defendant’s request for an adjournment of the trial to obtain counsel should have been granted; the defendant’s request to obtain counsel came late, there was no doubt that the plaintiff and his counsel would have been inconvenienced by an adjournment, and the defendant did not comply with the requirements of Rule 6:4-7 for adjournment requests; however, the Rule can be relaxed if adherence “would result in an injustice,” and there was no compelling reason why the defendant’s request should not have been granted where the plaintiff’s counsel did not object and where the only reason given by the Special Civil Part was its “undoubtedly conscientious desire” to “move the case.”

EMPLOYMENT LAW
MARCACCI v. SEABROOK HOUSE
Appellate Division, A-1434-03T2, May 24, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 17997

Directed verdict for the defendant employer on the plaintiff’s claim under the Conscientious Employee Protection Act reversed and remanded; the plaintiff was a chief operating officer who was terminated after she reported her concerns about insurance fraud; the defendant claimed that the plaintiff was fired due to restructuring that eliminated her position; there was sufficient evidence of pretext for the plaintiff to survive the motion for a directed verdict and to allow the case to proceed to the jury (1) where the defendant’s president testified that the defendant’s finances were drastically declining but that he replaced the plaintiff’s position, which cost $81,000 per year, with three vice-president positions, which each cost $75,000 per year, (2) where the plaintiff was not offered a human resources position for which she was qualified when her position was eliminated, and (3) where the plaintiff testified that her recent evaluations were positive and contained no negative comments but that these evaluations were inexplicably missing from her personnel file.

CRIMINAL TRIALS
STATE v. JORDAN
Appellate Division, A-6178-02T4, May 23, 2005, not approved for publication. (21 pages). Facts-on-Call Order No. 17994

Convictions for first-degree attempted murder and second-degree aggravated assault affirmed but the sentence remanded for further consideration; contrary to the defendant’s assertions, (1) the trial court did not fail to properly sanitize prejudicial or inflammatory evidence, (2) his constitutional right of confrontation was not violated by references in a police officer’s testimony to statements made by the defendant’s girlfriend, (3) the evidence for the attempted murder charge was sufficient, (4) there was no error where an inaccurate statement was made during a short summary at the start of jury selection but was not repeated during the jury instructions, (5) the indictment was properly amended, and (6) the defendant was not denied his right to a speedy trial; however, the matter was remanded to allow the State and the defendant to further address the objective facts that supported the imposition of the defendant’s sentence in light of the “lack of clarity” in the record about the grounds for the sentence and to conform with Apprendi, Blakely, Abdullah, and Natale.

CRIMINAL TRIALS
STATE v. RIVERA
Appellate Division, A-1759-03T1, May 23, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 17995

Law Division decision that resolved the defendant commercial bail bond company’s motion to vacate the forfeiture of bail by awarding only a 10 percent remission of the $22,500 that it posted for the criminal defendant affirmed; after the criminal defendant failed to appear in court, the bail bond company did not attempt to return the criminal defendant to custody until seven months had elapsed; the criminal defendant already was incarcerated in Philadelphia when the bail bond company located him, and the bail bond company then filed its motion; the trial court did not abuse its discretion where it properly applied State v. Hyers and where it correctly concluded that the most significant factors in this case were that the bail bond company did not look for the criminal defendant for seven months after he fled and that the bail bond company had played no part in the criminal defendant’s apprehension.

POST-CONVICTION RELIEF
STATE v. GILMORE
Appellate Division, A-2196-03T2, May 23, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 17993

Denial of the defendant’s second petition for post-conviction relief affirmed; the defendant’s first PCR petition alleged prosecutorial misconduct and ineffective assistance of counsel, and the Appellate Division affirmed the denial of the petition because the defendant failed to make a prima facie showing of “remedial ineffectiveness”; the defendant’s second petition was based on claims that already had been raised and adjudicated on his direct appeal and in his first PCR petition; the defendant’s second PCR petition was procedurally barred by Rule 3:22-5, and there was no reason to relax the Rule; when it rejected the first PCR petition, the Appellate Division concluded that the defendant’s assertions of ineffective assistance of counsel were “completely unsupported and must therefore fail,” and there was nothing in the second PCR petition that altered this conclusion.

POST-CONVICTION RELIEF
STATE v. COPLING
Appellate Division, A-1676-03T4, May 23, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 17992

Denial of the defendant’s petition for post-conviction relief affirmed; the defendant was convicted of charges that included first-degree murder after shootings in an apartment; the defendant claimed, among other things, that the State had violated Brady v. Maryland by failing to provide him with the name of a female witness who could have exculpated him; contrary to the defendant’s arguments on appeal, (1) there was no Brady violation or a need for an evidentiary hearing where it was “clear from the trial record” that no women were present at the apartment when the shootings occurred and (2) the defendant did not establish a prima facie case of ineffective assistance of either trial counsel or PCR counsel.


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