NEW JERSEY LAWYER

DAILY BRIEFING      08/18/2005


News Briefs

FREEHOLDERS CHALLENGE WARREN BAR’S COURT IMPROVEMENT SUIT
The Warren County Board of Freeholders is challenging the county bar association’s lawsuit that would require the freeholders to improve the county courthouse. A motion to be filed in the courthouse Friday seeks dismissal, arguing that directing the courts to order the board to spend public money would violate the separation of powers between the judiciary and executive branch, and goes against established state court rules for resolving such disputes. However, in recent years there was such a suit when the Essex County Bar Association went after freeholders there to renovate the county’s old courthouse, which reopened earlier this year. The motion by the Warren freeholders, prepared by Joseph J. Bell Jr. of Bell & Gage in Denville, seeks arbitration instead. The Warren County Bar Association sued in late July, alleging cramped conditions at the courthouse violate the Administrative Office of the Courts’ security regulations. 8-17-05

DISBARRED ATTORNEY TO SERVE EIGHT YEARS FOR FUND THEFTS
Disbarred attorney Richard A. Pizzi of Berkeley Heights will serve eight years in state prison and pay $650,000 in restitution for stealing client funds. At his sentencing before Union County Judge Scott J. Moynihan, Pizzi blamed his emotional state for the thefts in 2004 and preceding years, claiming he had just learned he was not his father’s natural offspring. In April, Pizzi, 58, pleaded guilty to two counts of misapplication of entrusted funds — his trust accounts for clients’ construction projects. He had been an attorney more than 30 years. 8-17-05

COMPUTER RECYCLING MANDATED IN BILL
Computers soon could follow newspapers, cans and bottles down the recycling path. Manufacturers, importers and sellers of electronic equipment would have to come up with formal plans for disposing of and recycling unwanted computers, peripherals and other equipment that contains printed circuit boards, under a bill being considered Thursday by the Senate’s Environment Committee. Sponsored by Sen. Bob Smith (D-Middlesex), S-1861 also mandates manufacturers, importers and sellers educate customers and other users on electronic-waste management. 8-17-05

WHAT’S THAT? RUNNER-UP LOSES LEGAL BID THAT DEFIED THE LAW
It may be a classic case of a frivolous political suit not being branded for what it is. Calvin Coles, the Hackensack council candidate who finished fifth in a field of six in the May election has failed in his bid to replace the councilman who died on Election Day. Despite a clear-cut statute spelling out how vacancies are to be filled, Coles sued the governing body, claiming that as runner-up in the election, he should have been named temporary councilman until a special election was held for a permanent replacement. Bergen County Judge Robert P. Contillo ruled the state’s Municipal Vacancy Law allowed the council to name its own replacement and a special election isn’t needed. 8-17-05

LEGAL SERVICES TO OFFER IMMIGRATION LAW TRAINING
Legal Services of New Jersey will offer immigration law training, open to all attorneys, on Sept. 21 from 3:30 to 7:30 p.m. at its Edison offices. The $75 fee will be waived for attorneys who agree to accept one immigration case from Legal Services on a pro bono basis. Faculty will include two immigration judges from Newark, Alberto J. Riefkohl and Annie S. Garcy. Presentations also will be made by attorneys from Legal Services’ immigration representation project, Shifra Rubin, Timothy R. Block and Regine Dupuy McCalla. Time spent on such cases is eligible for exemption from mandatory pro bono assignments. Legal Services says it will provide malpractice insurance, ongoing support and technical assistance. For more information, call Rubin at (732) 529-8230. Registration deadline is Sept. 15. 8-17-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, WEDNESDAY, AUGUST 17, 2005
NO OPINIONS WERE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, AUGUST 17, 2005, AND NO OPINIONS ARE SCHEDULED FOR RELEASE ON THURSDAY, AUGUST 18, 2005.


APPROVED FOR PUBLICATION
DEATH PENALTY
STATE v. JIMENEZ
Appellate Division, A-3736-04T2, approved for publication August 17, 2005. (67 pages). Facts-on-Call Order No. 92628

In this capital murder prosecution of a defendant who claimed to be mentally retarded, the Appellate Division reviewed the procedures that the trial court developed to implement the U.S. Supreme Court’s decision in Atkins v. Virginia, which held that the execution of mentally retarded defendants who have been convicted of capital murder violates the Eighth Amendment. The Appellate Division affirmed the procedures that apply after the guilt phase but reversed the pretrial procedures based on findings (1) that a trial judge may make a pretrial determination that a defendant is mentally retarded only in rare cases where reasonable minds cannot differ as to the defendant’s retardation and (2) that the State must demonstrate to the jury beyond a reasonable doubt that the defendant is not mentally retarded before the penalty phase is conducted in cases where a defendant who claims to be mentally retarded is found guilty of capital murder. Judge Fisher concurred.

NOT APPROVED FOR PUBLICATION
NEGLIGENCE
CAMPANO v. DePETRA
Appellate Division, A-1663-03T5, August 17, 2005, not approved for publication. (9 pages). Facts-on-Call Order No. 18386

Judgment of no cause of action for the defendant following a jury verdict in a damages trial and order denying the plaintiff’s motion for a judgment notwithstanding the verdict or for a new trial affirmed in an action for injuries sustained in a May 2000 automobile accident; the plaintiff also had been injured in a 1999 automobile accident; the defendant rested his case without calling his expert, who had examined the plaintiff following both the 1999 accident and the 2000 accident, and the trial court denied the plaintiff’s motion to compel the expert’s testimony; the trial court did not abuse its discretion by denying the plaintiff’s motion, and there were no “exceptional circumstances” that allowed the plaintiff to elicit an expert opinion from an expert who had been retained by his adversary, especially where the plaintiff admitted that he could have produced his treating doctors after the 1999 accident but chose not to for reasons of litigation costs or strategy; defense counsel’s comment that the plaintiff did not present his 1999 treating doctors did not constitute “undue prejudice” that required a new trial.

EMPLOYMENT LAW
WILLIAMS v. LOCAL 54, HOTEL EMPLOYEES AND RESTAURANT EMPLOYEES UNION
Appellate Division, A-5801-03T3, August 17, 2005, not approved for publication. (27 pages). Facts-on-Call Order No. 18384

Summary judgment dismissing the plaintiff union trustee’s Conscientious Employee Protection Act claim on preemption grounds reversed and remanded, and denial of the defendant union’s motion for summary judgment on the ground that the plaintiff had failed to established a valid CEPA claim affirmed; the plaintiff claimed that she had been discharged in retaliation for her complaints about the misuse of funds by the union’s president; as to the preemption issue, where the plaintiff could not allege a cause of action under the federal Labor Management Reporting and Disclosure Act because her discharge did not affect her union membership rights, the LMRDA did not preempt her CEPA claim; as to the merits of the plaintiff’s claim, the first three prongs of a CEPA cause of action were not at issue, and the plaintiff had established sufficient evidence from which the jury could find causation, which is the fourth prong.

HUSBAND AND WIFE
FINKLE v. FINKLE
Appellate Division, A-6113-03T2, August 17, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18382

Post-divorce judgment order (1) that granted the defendant ex-wife’s request either to amend the existing qualified domestic relations order or to execute a supplemental “stream of payment” QDRO nunc pro tunc to allow her to receive an additional monthly payment to bring her up to her proper 50 percent share of the plaintiff ex-husband’s monthly pension benefit, (2) that entered a judgment of $21,178 against the ex-husband for the overpayment of his benefits since his retirement, and (3) that directed the ex-husband to buy and maintain a $100,000 life insurance policy with the ex-wife as his beneficiary or, alternatively, to provide her with a $100,000 payout from his estate affirmed in part, reversed in part, and remanded; the ex-husband’s arguments against the application to vacate or amend the QDRO lacked merit; however, remand was required because the order mandating the life insurance policy or estate payment to the ex-wife was not supported by the necessary findings of fact and conclusions of law.

PARENT AND CHILD
DIVISION OF YOUTH AND FAMILY SERVICES v. T.R.
Appellate Division, A-2613-04T4, August 17, 2005, not approved for publication. (8 pages). Facts-on-Call Order No. 18385

Judgment that terminated the defendant mother’s parental rights to three of her children and that granted guardianship of the three children to the plaintiff Division of Youth and Family Services affirmed; the three children never had lived with their mother and thus had not bonded with her; the trial court’s findings and conclusions were well supported by the record and therefore were binding on appeal; the trial court (1) was justified in considering the mother’s “long-term history” with DYFS, which included the loss of her parental rights to nine other children, and (2) properly concluded that the mother’s capacity to parent had not improved materially, that DYFS had provided “significant” services to her to no avail, and that the best interests of the three children required the entry of the judgment.

UNEMPLOYMENT COMPENSATION
HREHA v. BOARD OF REVIEW, DEPARTMENT OF LABOR
Appellate Division, A-6158-03T3F, August 17, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18383

Decision of the Board of Review that upheld the denial of additional unemployment compensation benefits to the plaintiff during a period of vocational training affirmed; the only reason established for the plaintiff’s termination from his position as a computer technician was a dispute with the employer about taking a day off; the appeals examiner found that the plaintiff was terminated for cause, not because of a “substantial reduction in work opportunities” as required by N.J.S.A. 43:21-60a; even if proved, the plaintiff’s contention that he and a co-worker who earlier had lost his job were 50 percent of the employer’s workforce could be viewed as only “a coinciding fact”; the record supported the Board of Review’s findings and conclusions.

UNEMPLOYMENT COMPENSATION
WITKOWSKA v. BOARD OF REVIEW, DEPARTMENT OF LABOR
Appellate Division, A-946-04T2, August 17, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18387

Final decision of the respondent Board of Review that affirmed the denial of the petitioner’s application for extended unemployment benefits under the Workforce Development Partnership Act affirmed; the petitioner was fired from her employment, received the maximum six months of unemployment benefits, and applied for “additional benefits during training” under the Act; although the petitioner pursued courses in English in an “admirable effort” to improve her employment prospects, she did not qualify for extended benefits under the Act and its regulations because she was unable to demonstrate that she was fired due to a “substantial reduction in work opportunities” at her prior employment.

PUBLIC EMPLOYMENT
NEW JERSEY TRANSIT CORP. v. PBA LOCAL 304
Appellate Division, A-6516-03T3, released August 16, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18379

Vacation of an arbitration award entered by the Public Employment Relations Commission reversed; the arbitrator awarded a New Jersey Transit police officer reinstatement, back pay, and benefits because the plaintiff employer violated its collective bargaining agreement with the defendant union by requiring the officer to undergo a physical agility examination before he could return to work following his treatment for cancer; the Chancery Division vacated the award after finding that the arbitrator declined on procedural grounds to consider Bridgewater Twp. v. PBA Local 174; the Chancery Division should not have vacated the award because none of the N.J.S.A. 2A:24-8 grounds for judicial intervention were present; furthermore, even if the arbitrator had considered Bridgewater Twp., the basis for his award would not have changed.

MOTOR VEHICLES
STATE v. TORRICELLI
Appellate Division, A-1147-04T3, released August 16, 2005, not approved for publication. (12 pages). Facts-on-Call Order No. 18381

Conviction of leaving the scene of an accident in violation of N.J.S.A. 39:4-129(d) affirmed; despite defense testimony that the defendant was in the passenger seat and that his companion was driving, the Municipal Court found that the defendant drove a vehicle that struck a second vehicle in a parking lot and that he drove away from the area; the Law Division found the defendant guilty on de novo review; contrary to the defendant’s arguments on appeal, (1) the incident was an “accident” within the meaning of §39:4-129(d), (2) the State did not fail to prove that the second vehicle was damaged, (3) the Municipal Court did not improperly rely on the defendant’s testimony that he offered to pay for damage to the second vehicle, and (4) the State did not have to prove that the defendant “knew” that he had damaged the second vehicle; the defendant’s claim that the Municipal Court judge was biased because he referred to the defendant’s status as a U.S. Senator was without merit.

CRIMINAL TRIALS
STATE v. McGLOIN
Appellate Division, A-933-03T4, August 16, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18380

Conviction of vehicular homicide in violation of N.J.S.A. 2C:11-5a reversed and remanded for a new trial; the defendant struck a bicyclist when he entered an intersection while the traffic light was red; trial testimony indicated that the sun was directly behind the traffic light and that it interfered with the defendant’s ability to see the light; the defendant objected to the jury instructions because they did not adequately inform the jury that a conviction of vehicular homicide requires a finding of a conscious disregard of the risk created rather than a finding of only a lack of due caution; the Appellate Division agreed with the defendant that the jury instructions as a whole did not explain the law that was relevant to the “central dispute” about whether he had consciously disregarded the risk he created or whether he had failed to perceive that risk.


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