NEW JERSEY LAWYER

DAILY BRIEFING      09/14/2005


News Briefs

PROSECUTORS BLAST JUDGE’S ORDER FOR IMMIGRATION INFO
Cumberland County prosecutors have lashed out at Cumberland County Judge John Tomasello’s order that they provide information on the immigration status of witnesses in a murder trial. “Whether they are or are not (illegal aliens) is not the state’s concern,” Assistant Prosecutor Jose Silva told the judge, adding that the order could discourage the witnesses from testifying. County Prosecutor Ronald J. Casella called the order “a great attempt to try and prejudice the jury,” and said his office is researching a possible appeal, according to The Press of Atlantic City, which broke the story of the proceeding. The prosecutors have until Sept. 27 to provide the witness information in the trial of Adrian Martinez, a native of Mexico. 9-13-05

JUDGE WEIGHS WHETHER TO REDUCE BAIL TO HELP WITH DEFENSE COSTS
Essex County Judge Howard W. Fullilove is mulling over an unusual trial decision: whether to reduce bail for two defendants in a highly publicized case who say that will give them enough money for their defense. “Any defendant facing a criminal case needs money. They’d all like to hire Johnnie Cochran if he was still alive,” Fullilove said at a hearing for the defendants charged with setting a fatal dormitory fire at Seton Hall University in 2000. He is expected to rule next week on whether to reduce to $500,000 the bail now set at $1.2 million for Sean Ryan and $2 million for Joseph T. Lepore. Ryan’s attorney, Michael S. Bubb of Morristown, said it would cost “tens of tens of thousands of dollars” for the expert witnesses he says will be needed to debunk the prosecution’s case. Essex County prosecutors questioned whether the costs of defense merit the bail reductions. 9-13-05

$600,000 AWARDED IN TRADE SECRETS CASE
A federal jury in Philadelphia has awarded a company more than $600,000 in a case involving the theft of trade secrets. Sante Fe Science and Technology Inc. sued Drexel University Professor Frank K. Ko and the Philadelphia school claiming that Ko took trade secrets the company and Ko developed collectively and sold them to a concern in China. The company was awarded $522,759 in compensatory damages and $80,000 in punitives, and its attorney, Michael Allison, plans to also ask the court for his $700,000 in fees. The company charged that Ko violated a confidentiality agreement for their work on plastic fiber that transmits electricity 9-13-05

PROBABLE CAUSE REQUIRED IN WARRANTLESS SEARCHES
In a victory for the privacy rights of defendants awaiting trial, the 9th U.S. Circuit Court of Appeals has ruled that even if someone agrees to a warrantless search in exchange for being released on his or her own recognizance, police still cannot perform the search without probable cause. In U.S. v. Scott, the defendant had consented to random drug testing by police without a warrant, but the test violated his Fourth Amendment rights because the police did not have probable cause and could not show a “special need” to lower the bar, Judge Alex Kozinski wrote for the majority. The defendant faced several charges of drug possession when released on his own recognizance, subject to conditions that included warrantless drug and alcohol testing. Judge Jay Bybee dissented, saying the state’s interests should be weighed against privacy interests of defendants on pre-trial release on a case-by-case basis. 9-13-05

CITY DEPARTMENT SORELY NEEDS A PIED PIPER
If you think government services are sometimes ineffective in New Jersey, look at New Delhi government’s Rat Surveillance Department. It has 97 rat catchers on its payroll, but has not caught any rodents in more than 10 years and has had no serious scores since 1994 when a plague struck the capital city. Rats meanwhile are in wide supply and often are seen scurrying across parks, streets and in homes. The public never is served by no-show jobs, but in this case it appears there are some beneficiaries — the rats. 9-13-05



Today's Decision Summaries

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FROM THE NEW JERSEY SUPREME COURT, TUESDAY, SEPTEMBER 13, 2005
THE FOLLOWING OPINION WAS RELEASED BY THE NEW JERSEY SUPREME COURT ON TUESDAY, SEPTEMBER 13, 2005:

NEGLIGENCE
MAISONAVE v. NEWARK BEARS PROFESSIONAL BASEBALL CLUB, INC.
New Jersey Supreme Court, A-59/60, September 13, 2005. (47 pages). Facts-on-Call Order No. 92662

An owner or operator of a stadium must provide protected seating to those who would seek it on an ordinary basis and must provide screening in the most dangerous areas of the stands. As to all other areas of a stadium, the proper standard of care is the business invitee rule. Justice Wallace concurred, and Justice Rivera-Soto concurred in part and dissented in part.

NO OPINIONS ARE SCHEDULED TO BE RELEASED BY THE NEW JERSEY SUPREME COURT ON WEDNESDAY, SEPTEMBER 14, 2005.



APPROVED FOR PUBLICATION
 
NO OPINIONS APPROVED FOR PUBLICATION WERE RELEASED BY THE APPELLATE DIVISION ON TUESDAY, SEPTEMBER 13, 2005.

NOT APPROVED FOR PUBLICATION
VERBAL THRESHOLD
ORTIZ v. NOLAN
Appellate Division, A-5080-03T1, September 13, 2005, not approved for publication. (3 pages). Facts-on-Call Order No. 18517

Summary judgment for the defendant based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded; the trial court acknowledged that there was sufficient evidence to establish a reasonable probability that the pain that the plaintiff experienced was related to her Schmorl’s node defects that resulted from her accident, but it granted summary judgment because she had not established that her injury had a serious impact on her life; the trial court also stated that it could not determine whether the plaintiff had suffered a “serious significant injury” under the Appellate Division’s decision in Serrano v. Serrano; reversal and remand was required in light of the New Jersey Supreme Court’s recent decisions in DiProspero v. Penn and Serrano v. Serrano, which held that a plaintiff need not demonstrate either a serious life impact or a serious injury to recover damages for pain and suffering under AICRA.

VERBAL THRESHOLD
STRAUB v. FELDMAN
Appellate Division, A-2094-04T5, September 13, 2005, not approved for publication. (4 pages). Facts-on-Call Order No. 18518

Summary judgment for the defendants based on the N.J.S.A. 39:6A-8a verbal threshold under AICRA reversed and remanded for trial; the trial court concluded that the plaintiff had made a prima facie showing that his injuries from his accident with the defendant aggravated his pre-existing disc herniation, but it granted summary judgment because the plaintiff’s permanent soft-tissue injuries did not satisfy the “AICRA requirement for seriousness” under the Appellate Division’s decision in Serrano v. Serrano; however, the New Jersey Supreme Court recently held in Serrano v. Serrano that a plaintiff has to prove only an injury defined in §39:6A-8a and does not have to demonstrate a “serious injury” to recover noneconomic damages; the plaintiff made a prima facie showing that was sufficient to require a trial.

COMMERCIAL TRANSACTIONS
KASPI v. COLUMBIA BANK
Appellate Division, A-2457-04T1, September 13, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18516

Judgment for the defendant bank after a bench trial on the plaintiff payee’s claim for $4,503 plus interest arising from a charge-back by the defendant bank affirmed; the payee deposited a $4,300 check into his account with the defendant on July 10, 2004, and the defendant posted a conditional credit of $4,300 to his account on July 12; the payor’s bank provisionally paid the check on July 13 but stopped payment before July 15; on July 16, the payee withdrew $6,250 from his account to leave a balance of $3,194, but he learned later that day that his account was deficient because the check had been dishonored and the credit to his account had been charged back; the payee alleged that the charge-back was illegal, and his suit was dismissed for failure to state a claim on which relief could be granted; the record supported the defendant’s assertion that it had acted in compliance with the applicable statutes and regulations, and the payee’s claim therefore lacked legal support.

PARENT AND CHILD
NEW JERSEY DIVISION OF YOUTH AND FAMILY SERVICES v. S.C.
Appellate Division, A-3334-04T4, September 12, 2005, not approved for publication. (7 pages). Facts-on-Call Order No. 18512

Final judgment that terminated the defendant mother’s parental rights to her youngest daughter affirmed substantially for the reasons expressed by the trial court; the defendant tested positive for opiates when the daughter was born and had been arrested for a CDS offense about two weeks before giving birth; the expert report provided by the plaintiff Division of Youth and Family Services indicated that the defendant preferred that her mother take care of the daughter and that the defendant recognized that she could not care for the daughter herself; DYFS rejected the defendant’s mother as an alternative placement, and the expert agreed with DYFS’s decision; the trial court’s factual findings were “fully supported” by the record, and it correctly applied the law.

CRIMINAL TRIALS
STATE v. CUMBIE
Appellate Division, A-5493-03T4, September 12, 2005, not approved for publication. (6 pages). Facts-on-Call Order No. 18514

Conviction of third-degree possession of cocaine affirmed but sentence of five years of imprisonment remanded for resentencing; as to the defendant’s claim that his counsel was ineffective for failing to file a motion to suppress the drugs that were found in the defendant’s possession, the claim (1) was premised on trial testimony, which should not be used as the basis for determining whether evidence should be suppressed, and (2) was subject to the general policy against considering ineffective assistance of counsel claims on direct appeal; as to the defendant’s claim that the trial court abused its discretion by imposing the maximum sentence for a third-degree offense, the defendant did not have a lengthy criminal record, and neither the trial court’s findings nor the record justified the imposition of the maximum sentence.

CRIMINAL TRIALS
STATE v. RICHARDSON
Appellate Division, A-4485-03T4, September 12, 2005, not approved for publication. (13 pages). Facts-on-Call Order No. 18513

CDS convictions affirmed but sentence of five years in prison with a three-year period of parole ineligibility vacated and remanded for a new sentencing hearing; contrary to the defendant’s arguments on appeal, (1) the trial court “made clear” to the jury that the State did not have to prove that the defendant had intended to distribute CDS either inside the school zone or within a particular time period, (2) the defendant’s ineffective assistance of counsel claim was “patently without merit” because defense counsel’s statements did not shift the burden of proof, and (3) the parole ineligibility period was consistent with N.J.S.A. 2C:35-7; however, a new sentencing hearing was required in light of the New Jersey Supreme Court’s recent decision in State v. Natale.

JUVENILES
STATE IN THE INTEREST OF C.P.
Appellate Division, A-5070-03T4, September 12, 2005, not approved for publication. (5 pages). Facts-on-Call Order No. 18515

Finding that the appellant juvenile was delinquent affirmed; the adjudication of delinquency was based on the conclusion that the appellant had committed acts that would constitute conspiracy if she were an adult by agreeing to aid a second juvenile in the commission of a third-degree aggravated assault; the juvenile victim testified that the appellant came to his house twice to ask him to come outside, that about 10 other juveniles appeared when he went outside, that the second juvenile punched him in the jaw and knocked him down, and that another juvenile struck him when he tried to get up; the record “fully” supported the trial court’s determinations that the incident was not spontaneous and that the appellant had agreed to assist the second juvenile in the commission of the crime by convincing the victim to leave his house.


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