NEW JERSEY LAWYER

DAILY BRIEFING      07/27/2005


News Briefs

BERGEN COUNTY JUDGE WALSH DIES ON VACATION
Bergen County Judge Charles J. Walsh died Sunday while vacationing with his wife in China. He was 63. A member of the bench since 1999, Walsh set a standard for other judges to follow last October when, while presiding over diet-drug litigation, he ruled defendant Wyeth Corp. could challenge the eligibility of plaintiffs to opt out of a class-action settlement to file their own suits. He joined the bench from the then-Sills Cummis Zuckerman Radin Tischman Epstein & Gross in Newark, where he served on the management committee, chaired the litigation committee and became known for product liability defense, and anti-trust and First Amendment cases. Before joining the firm in 1982, he served six years as a federal prosecutor in positions that included chief of the U.S. Attorney’s Office Fraud and Public Protection Division. 7-26-05

STATE BAR APPEALS $75 FEE RULING
The New Jersey State Bar Association — as promised — has appealed a Union County judge’s ruling upholding the constitutionality of a state law imposing a $75 fee on lawyers to help pay medical malpractice premiums for certain high-risk medical specialists. Although State Bar leaders decided to appeal soon after Judge Thomas P. Lyons’ June ruling in favor of the state in New Jersey State Bar Association v. State of New Jersey, John E. McCormac, Treasurer; the formal appeal was filed this week with the Appellate Division. Edwin J. McCreedy, the association’s immediate past president, tried to convince the judge that since so few of the state’s lawyers handle medical malpractice cases, it’s unfair under the New Jersey Constitution to assess 30,000 private practitioners. But Lyons accepted the arguments of Assistant Attorney General Patrick DeAlmeida that lawyers have a broader connection to the medical profession than just malpractice cases. In the meantime, the state has been collecting the $75 fee from lawyers, physicians and other medical professionals. 7-26-05

WARREN BAR ASSOCIATION SUES FOR COURTHOUSE IMPROVEMENTS
Claiming cramped conditions at the Warren County courthouse violate the Administrative Office of the Courts’ security regulations, the Warren County Bar Association has sued the county’s freeholders to upgrade the 100-plus-year-old facility. The suit, filed by Lawrence P. Cohen of Courter Kobert & Cohen in Hackettstown, accuses the freeholders of dragging their feet in replacing the facility. Freeholder Director Richard Gardner said there is no basis for the suit because the board is proceeding with improvement plans. 7-26-05

ANOTHER POL PITCHES TO STRENGTHEN MEGAN’S LAW
Strengthening Megan’s Law undoubtedly will be a hot topic for the legislature when it returns from recess. Sen. Joseph Vitale (D-Middlesex) has begun researching a measure that would empower authorities to notify residents when any registered sex offender moves into a neighborhood, strengthening the current law that requires notification only of the highest risk offenders. His bill also could require counseling for offenders while in prison. Vitale’s efforts followed reports that residents of a Woodbridge neighborhood were unaware two sex offenders were living in their community until they were arrested for allegedly trying to lure children. Last week, Assemblyman Kirk W. Conover (R-Atlantic) said he wants to tighten Megan’s Law amid reports that Galloway residents were unaware a high-risk offender resides there. 7-26-05

CELL PHONES AND BRAIN WAVES
Maybe those hands-free cell phones while driving aren’t that safe after all. Brain-imaging tests from Johns Hopkins University find that even with a headset, cell phone use forces the brain to redirect its cognitive resources from the visual task of driving to what it hears on the phone. Steven Yantis, a professor of psychology, said, “Directing attention to listening effectively turns down the volume or input to the visual parts of the brain.” 7-26-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, JULY 26, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, JULY 26, 2005:

ENVIRONMENTAL LAW
RALEIGH AVENUE BEACH ASSOCIATION v. ATLANTIS BEACH CLUB, INC.
New Jersey Supreme Court, A-40, July 26, 2005. (47 pages). Facts-on-Call Order No. 92595

Based on Matthews v. Bay Head Improvement Ass’n, the public trust doctrine requires the stretch of upland sand beach that the defendant owned and operated as a private club to be available for public use. The Department of Environmental Protection has jurisdiction to review the defendant’s proposed fees for use of the beach. Justice Wallace dissented.

THE SUPREME COURT has announced that it will release an opinion in GONZALEZ v. IDEAL TILE IMPORTING, A-53, on July 27, 2005. The issue on appeal in Gonzalez addresses whether OSHA preempts the plaintiff’s third-party tort claims for injuries that he sustained in a workplace accident.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON TUESDAY, JULY 26, 2005.

NOT APPROVED FOR PUBLICATION
LAND USE
CITIZENS FOR HISTORIC PRESERVATION, INC. v. SHEEHAN
Appellate Division, A-5106-03T2 and A-5845-03T2, July 26, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18292

Law Division’s affirmance of the defendant Zoning Board of Adjustment’s resolution that allowed the historic Ocean City Lifesaving Station to be partially demolished and its core structure to be moved to another location reversed; the Zoning Board improperly considered the defendant property owner’s personal financial hardship as a factor when it decided whether the demolition permits should have been granted; hardship was not listed in the ordinance as a relevant factor to be considered when determining whether a permit application should be granted, and hardship would become relevant only if the property owner sought demolition as a matter of right after the denial of permit applications; consideration of hardship at this juncture was beyond the Zoning Board’s powers.

NEGLIGENCE
LEHR v. NEW YORK SPORTS CLUB
Appellate Division, A-5254-03T5, July 26, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18293

Denial of the plaintiff gym member’s motion for judgment n.o.v. or a new trial after the entry of a judgment of no cause of action in her negligence case against the defendant gym and the defendant personal trainer affirmed; the judgment was based on a jury verdict that found the member 75 percent responsible for her injuries; the member attended 22 sessions with the trainer at the gym between December 1999 and March 2000; beginning in January 2000, she experienced numbness in her toe during the sessions, the numbness began to radiate up her leg, and she underwent back surgery in April 2000; there was no miscarriage of justice under the law because a reasonable fact-finder could have concluded that the member was negligent as to the cause of her injuries and that her negligence was greater than the defendants’ negligence.

DISCOVERY
TUNCBOYACIYAN v. TOROSSIAN
Appellate Division, A-353-04T1, July 26, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18291

Dismissal with prejudice of the plaintiff’s complaint for failure to comply with discovery affirmed; the defendants’ unopposed motion to dismiss the complaint without prejudice for failure to answer interrogatories was granted on May 23, 2003; the plaintiff obtained a new attorney and moved on June 25, 2004 to vacate the dismissal; the plaintiff’s motion was granted as “unopposed”; after the trial court was advised that the plaintiff’s motion had been opposed, it held oral argument and dismissed the complaint with prejudice; the trial court did not abuse its discretion (1) where the plaintiff’s former attorney certified that he had surgery in June and December 2003 but did not explain the delay in responding to interrogatories and in moving to vacate the May 23, 2003 dismissal, (2) where there was no evidence that the plaintiff had yet “fully and completely complied” with the defendants’ discovery requests, and (3) where the three-and-a-half-year delay in the litigation since the complaint was filed was “in and of itself” prejudicial to the defendants.

EVIDENCE
STATE v. LEWIS
Appellate Division, A-49-04T4, July 25, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18290

Convictions of attempted theft by deception, theft of identity, use of false government documents, and fraudulent use of credit cards affirmed; the defendant was tried as an accomplice for driving a woman to a bank to help her obtain the proceeds of a fraudulent loan; the woman used a driver’s license, credit card, and telephone bill in the name of the intended victim to attempt to obtain the proceeds; while waiting outside the bank, the defendant consented to a search of the vehicle he was driving; the search revealed five documents that contained personal information about the intended victim and other persons; on appeal, the defendant challenged the admission of the documents into evidence; based on the four-pronged test of State v. Cofield, the documents were properly admitted as evidence of other crimes, wrongs, or acts under N.J.R.E. 404(b).

SENTENCING
STATE v. W.T.
Appellate Division, A-5470-02T4, July 25, 2005, not approved for publication. (16 pages). Facts-on-Call Order No. 18288

Sentences entered on remand on convictions of five counts of first-degree aggravated sexual assault, six counts of first-degree sexual assault, and endangering the welfare of children affirmed as modified and remanded for the entry of a corrected judgment; originally, the defendant received an aggregate sentence of 110 years with no minimum term; on remand, he received an aggregate sentence of 40 years with a 20-year minimum term; contrary to the defendant’s arguments on appeal, the new sentence did not violate principles of double jeopardy or due process, and the trial court’s finding of three aggravating factors was based on substantial evidence; however, modification of the sentences was required because the trial court erred by failing to apply one mitigating factor and by crediting the time that the defendant served before re-sentencing as jail time credits rather than prior service credits; the Appellate Division declined to apply State v. Natale pending the New Jersey Supreme Court’s review of the issues raised in that decision.

CRIMINAL TRIALS
STATE v. SUMNER
Appellate Division, A-34-04T4, July 25, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18289

Three CDS convictions and a presumptive sentence of seven years of imprisonment and a concurrent four-year term affirmed; contrary to the defendant’s arguments on appeal, (1) the trial court did not err by failing to tailor its jury instructions to the facts of the case and (2) the sentence was not excessive; as to the jury instructions, the trial court properly used the Model Jury Charge on identification, and neither the instructions nor the trial court’s discussion of the evidence that related to identification constituted error; as to the sentence, there was no basis to disturb it where the trial court reviewed the applicable factors, based its conclusions on sufficient credible evidence, and reached a result that was not unreasonable.


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