NEW JERSEY LAWYER

DAILY BRIEFING      06/17/2005


News Briefs

MAJOR CHANGES IN JURY SELECTION PROPOSED
Reducing the number of peremptory challenges allowed in criminal cases and permitting judges to modify the number of challenges in multiple party trials are among a broad set of jury selection changes recommended by a New Jersey Supreme Court committee. The panel further is recommending a new set of jury selection standards, providing selection training for lawyers and judges, and expanding pre-trial voir dire conferences to include written submission of proposed questions. It also recommends creating a standing committee to update jury selection questions. A full story is in Monday’s New Jersey Lawyer. 6-16-05

LOOPHOLE IN DWI PLEA AGREEMENTS CLOSING JULY 1
Effective July 1, plea agreement guidelines covering municipal courts no longer will permit the dismissal of a charge of refusing to take a breath test under a DWI guilty plea by first offenders. The New Jersey Supreme Court is removing a loophole in plea agreements that resulted in shorter license suspensions than the legislature intended for those who refuse to take breath tests. In April 2004, the legislature increased the penalties for a first offender under the refusal law to a minimum seven-month license suspension. But three months earlier the legislature created a new tier of DWI cases for those with blood-alcohol contents between 0.08 percent and 0.10 percent — and the penalty for first offenders under that section was a three-month suspension. That meant the penalty for the lesser charge of refusal was actually greater than the penalty under the DWI charge. Lawyers quickly realized a plea agreement that dismissed the refusal charge was better than keeping the refusal charge in the mix. 6-16-05

IOLTA TO REVIEW INVESTMENT COMPLIANCE OF TRUST FUND BANKS
The Interest on Lawyers’ Trust Accounts program will be reviewing banks handling trust accounts to determine if they’re complying with investment guidelines established a year ago. In a Notice to the Bar to be published in Monday’s New Jersey Lawyer, the Supreme Court directs IOLTA trustees contact banks to determine if they’re in compliance and deny authorization for those not complying in a timely manner. IOLTA in February 2004 began requiring the trust account investments be tied to a U.S. Treasury benchmark, after the yield from the state’s approximately 7,200 trust accounts had dropped to 0.78 percent in 2003 from 1.09 percent the year before. 6-16-05

TRANSCRIPT FEE INCREASE ON THE WAY
It’s official. Costs for court transcripts are rising. The Administrative Office of the Courts announced the fees for transcriptions of court proceedings are increasing 16 percent to $3.49 per page of an original standard delivery transcript, and to 58 cents for copies effective July 1. But this should be the last increase until 2010. A law enacted in 2000 requires transcript fees be adjusted every five years to reflect changes in the region’s Consumer Price Index. 6-16-05

KINSHIP LEGAL GUARDIANSHIP BECOMES LAW
People other than a child’s parent can be granted virtually all the rights, responsibilities and authority relating to the child, under a measure, A-208, signed by acting Gov. Richard J. Codey. The Kinship Legal Guardianship Notification Act essentially is aimed at the increasing number of relatives in the state, including grandparents, who provide long-term care to children who cannot reside with their parents for various reasons. The Department of Human Services will develop rules for implementing the law. 6-16-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, THURSDAY, JUNE 16, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON THURSDAY, JUNE 16, 2005:

CRIMINAL TRIALS
STATE v. TORRES
New Jersey Supreme Court, A-24, June 16, 2005. (37 pages). Facts-on-Call Order No. 92519

If properly qualified, an expert may give gang-related testimony. In this case, the trial court (1) did not abuse its discretion by finding that an investigator was qualified as an expert on Hispanic street gangs and that his testimony would be helpful for the jury to understand the issues in this case and (2) gave an appropriate jury instruction on accomplice liability.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON FRIDAY, JUNE 17, 2005.



APPROVED FOR PUBLICATION
REAL PROPERTY
TOWNSHIP OF PEMBERTON v. BERARDI
Appellate Division, A-115-04T5, approved for publication June 16, 2005. (27 pages). Facts-on-Call Order No. 92520

The word “may” in N.J.S.A. 20:3-25 of the Eminent Domain Act is mandatory and not permissive. A condemnor, on a condemnee’s application to the court, must either (1) file a declaration of taking and make the required deposit of compensation offered to the condemnee pursuant to N.J.S.A. 20:3-18 or (2) abandon the proceedings pursuant to N.J.S.A. 20:3-35. The court retains discretion to extend the time for the filing of the declaration of taking for up to three months from the date that the condemnee files the application. Overruling Borough of Tenafly v. Centex Homes Corp.

EVIDENCE
STATE v. SILVA
Appellate Division, A-3205-04T2, approved for publication June 16, 2005. (10 pages). Facts-on-Call Order No. 92521

In a prosecution for burglary, evidence of an existing domestic violence restraining order must be presented to the jury in a sanitized fashion, stripped of any connection to any incident of domestic violence.

NOT APPROVED FOR PUBLICATION
PREMISES LIABILITY
MESSICK v. FOUR WINDS CONDOMINIUM ASSOCIATION, INC.
Appellate Division, A-296-04T2, June 16, 2005, not approved for publication. (14 pages). Facts-on-Call Order No. 18105

Summary judgment dismissing the plaintiff condominium unit owner’s personal injury action against the defendant condominium association, rental management company, and others and denial of his motion to compel discovery affirmed substantially for the reasons expressed by the trial court; the plaintiff volunteered to patch stucco on the exterior of the condominium building; while on a ladder performing the work, the plaintiff was knocked to the ground by a falling piece of stucco; the trial court correctly characterized the plaintiff as an “independent contractor”; contrary to the plaintiff’s argument, the defendant condominium association could not be held liable on the basis that he was an “incompetent contractor” because he had represented that he was experienced in stucco repair and that the job involved only minor repairs; the trial court did not abuse its discretion by refusing to extend discovery due to the plaintiff’s delay in moving for the extension and his cancellation of a deposition.

PREMISES LIABILITY
RUGGIERI v. PAPA
Appellate Division, A-1223-03T3, June 16, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18104

Summary judgment for the defendant property owner and dismissal of the personal injury claims of the plaintiff contractor and his wife affirmed for reasons other than those expressed by the trial court; in connection with the remodeling of a kitchen, the defendant hired the plaintiff contractor to finish work that another contractor had begun; the contractor’s wife was injured when she stepped into a vent hole in the floor which was allegedly partially obscured by debris left by the first contractor; in the circumstances of this case, apart from considerations of status — which had been the focus of the trial court — the defendant could not reasonably be seen to have owed a duty of care to protect “a casual and unexpected visitor” in an area that was under construction from risks inherent in the condition of the premises; the wife could not be considered an implied business invitee through her husband’s status because her presence conferred no benefit to the defendant.

INSURANCE
WUESTER v. FIRST TRENTON COS.
Appellate Division, A-6754-03T5, June 16, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18107

Orders that confirmed a $175,000 uninsured motorist arbitration award for the plaintiff and that denied the defendant insurer’s motion for reconsideration reversed and remanded for trial; the trial court found that the defendant had failed to comply with the language in its policy regarding a demand for a trial on damages or to present any reasons why the award should not be confirmed; however, under Morag v. Cont’l Ins. Co. of N.J., which was decided while this appeal was pending, the letter from the defendant’s attorney was sufficient to put the plaintiff’s counsel on notice that the next step was to file a complaint that sought a trial on damages.

HUSBAND AND WIFE
LACHENMAYR v. LACHENMAYR
Appellate Division, A-1603-03T1, June 16, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18106

Order granting the defendant ex-husband’s motion for termination of his alimony obligation affirmed; the defendant claimed that he had retired at age 70, that he was receiving only Social Security benefits and interest from a bank account, and that his circumstances had changed sufficiently to warrant the modification; the plaintiff ex-wife suggested that the defendant was realizing an income from the sale of realty that he had received through equitable distribution; contrary to the plaintiff’s sole argument on appeal, the trial court did not err by terminating the alimony without considering the Deegan factors or without ordering a plenary hearing; the trial court was “manifestly correct” in considering a retirement after age 70 to be in a category that is different from the early retirement situation presented in Deegan, and there was “no sufficiently concrete basis” to create a genuine question as to whether the defendant was earning substantially more income than he had alleged.

DRUNK DRIVING
STATE v. VANDIEPEN
Appellate Division, A-1115-04T2, June 16, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18108

Conviction of driving while intoxicated affirmed; the Law Division discounted the Breathalyzer results and based its finding of guilt solely on the arresting officer’s observation that the defendant was driving under the influence of alcohol; there was sufficient evidence to support the Law Division’s conclusion that the officer had probable cause to arrest the defendant and to support the Law Division’s finding of guilt beyond a reasonable doubt (1) where the officer observed the defendant driving erratically, swerving, and activating his left turn signal before pulling over to the right side of the road, (2) where the officer smelled alcohol on the defendant’s breath and observed his “bloodshot and watery” eyes, and (3) where the defendant admitted that he had consumed three drinks earlier in the evening.


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