8-15-05 New Jerseyans for a Death Penalty Moratorium v. New Jersey Department of Corrections (A-63-04)
When a portion of a claim sought in an Open Public Records Act (OPRA) case is ultimately rejected, that circumstance should be
considered, along with other factors, to determine a reasonable award of attorneys' fees. The trial court should conduct a
qualitative analysis that weighs such factors as the number of documents received versus the number requested; whether the
purpose of the OPRA was vindicated by the litigation; the novelty of the issue; the time and labor required to resolve the
matter; and whether the representation precluded the attorney from undertaking other employment opportunities. If, after a
consideration of the relevant factors, the court concludes that the requester has obtained a high degree of success, the
requester should recover the full lodestar amount.
8-11-04 Saint Peter's University Hospital v. Clifton R. Lacy, M.D., et al.
Given the presumption of validity and reasonableness accorded to administrative regulations, the Court finds valid the
regulations codified at N.J.A.C. 8:43G-22A.6(c) and (e), requiring all licensed children's hospitals in the State to
operate a regional perinatal center and exempting already licensed children's hospitals from the requirement to obtain a
certificate of need before establishing the regional perinatal center.
8-10-05 Sophie Bubis, et al. v. Jack A. Kassin, et al. (A-44-04)
This berm is a fence as that word is commonly understood. Because it exceeds six feet in height, it violates both the 1887
restrictive covenant and the local zoning ordinance. Even had we found that the berm was not a fence, it is, at least, a wall
or hedge - neither of which are permitted in the beach zone.
8-9-05 A.B. v. Y.Z., et al. (A-91-04)
The trial judge's decision to permit the twenty-one-year-old sexual abuse victim to testify by closed circuit television outside of the presence of the perpetrator in a civil proof hearing was erroneous but the error was harmless.
8-4-05 Gunther Jock, et al. v. Zoning Board of Adjustment of the Township of Wall, et al. (A-72-04)
Because the adjacent lots in this case were always titled in legally separate parties, no merger of the lots occurred pursuant to Loechner v. Campoli, 49 N.J. 504 (1967). Further, neither the predecessors in title nor the current owner created the hardship on the lot proposed for development, therefore a hardship variance was not precluded.
8-3-05 State v. Edwin Keyes (A-70-04)
Based on the totality of the circumstances, the issuing court had a substantial basis to conclude that probable cause existed to search the apartment. Given the other available police corroboration, the officers' inability to witness the informant enter the apartment does not alter the conclusion that police had probable cause to obtain a search warrant.
8-2-05 State v. Michael J. Natale (A-82/83-04)
A sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than prior criminal conviction violates defendant's Sixth Amendment jury trial guarantee. The penal code's presumptive terms are eliminated. Judges will sentence defendants within the statutory range for the offense after weighing the aggravating and mitigating factors.
8-2-05 State v. Abdul A. Abdullah, a/k/a Lowell Camper (A-73-04)
Abdullah's ten-year sentence for second-degree burglary is reversed; the trial court is to determine that sentence anew in accordance with Natale II; Abdullah's sentence of life imprisonment with a thirty-year parole disqualifier on the murder conviction is affirmed; finally, judicially-imposed disqualifiers pursuant to N.J.S.A. 2C:43-6(b) and judicially-imposed consecutive sentences do not violate the Sixth Amendment.
8-2-05 State v. Allan Franklin (A-64-04)
The second-offender provision of the Graves Act, which permits the imposition of an extended term based on judicial fact-finding by a preponderance of the evidence, violates a defendant's Sixth Amendment right to trial by jury and Fourteenth Amendment right to due process. Franklin's sentence is vacated and the matter is remanded to the trial court for resentencing. Pipeline retroactivity is to be applied to defendants with cases on direct appeal as of the date of this decision and to those defendants who raised Apprendi claims at trial or on direct appeal.
7-28-05 State vs. Carl S. Williams (A-61-04)
The Appellate Division correctly excluded the mediator's testimony concerning statements made during mediation ordered by a municipal court on charges that were related to the incident that led to defendant's indictment. Defendant did not make the requisite showings in his criminal assault matter to overcome the mediation privilege: his need for the mediator's testimony did not outweigh the interest in mediation confidentiality, and he failed to show that the evidence was not otherwise available.
7-27-05 Gonzalez v. Ideal Tile Importing (A-53-04)
The Appellate Division's conclusions fully accord with relevant conflict preemption principles in all respects. Although a state tort action involving a third party and a work place injury could survive an Occupational Health and Safety Act (OSHA) conflict analysis, this one simply does not.
7-26-05 Raleigh Avenue Beach Association v. Atlantic Beach Club, Inc., et al. (A-40-04)
On application of the factors in Matthews v. Bay Head Improvement Ass'n to the circumstances of this case, the Atlantis upland sands must be available for use by the general public under the public trust doctrine; the broad scope of the DEP's authority includes jurisdiction to review fees proposed by Atlantis for use of its beach; the decision of the Appellate Division is affirmed.
7-25-05 Chirstina M. Gerety, et. al. v. Atlantic City Hilton Casino, et. al. (A-33-04)
An employer's even-handed adherence to a gender-neutral medical leave policy that provides more leave than any relevant federal or state statute requires does not constitute per se gender discrimination.
7-21-05 H.K. v. State of New Jersey, Department of Human Services, Division of Medical Assistance and Health Services (A-90-04)
The transfer of the Avalon property occurred on July 30, 1998, the date on which the deed to the property was executed, conveyed to H.K.'s heirs, and accepted by them. H.K.'s transfer of the property to her children for less than fair market value did not occur within the look-back period that pertained to her subsequent application for Medicaid assistance.
7-20-05 State v. Olga Hrycak (A-18-04)
We reaffirm our decision in Laurick that in the context of repeat DWI offenses, the enhanced administrative penalties and fines may constitutionally be imposed but that in the case of repeat DWI convictions based on uncounseled prior convictions, the actual period of incarceration imposed may not exceed that for any counseled DWI convictions.
7-19-05 State v. Michael Arthur (A-71-04)
Defense counsel's representation of his client feel within the wide range of reasonable professional assistance to which an accused is entitled and the accused received a fair trial; the denial of the petition for post-conviction relief is sustained.
7-19-05 In the Matter of Philip M. Morell, an Attorney At Law (D-23-04)
Under these circumstances, Morell's conduct, involving dishonesty, fraud, and deceit, reflects his unfitness to practice law; the Court orders his disbarment.
7-14-05 State v. Richard Feaster (now known as Sean Padraic Kenney) (A-63-03)
The prosecutor substantially interfered with the defense witness's decision to testify in the PCR proceeding, thereby violating Feaster's constitutional due process and compulsory process rights.
7-14-05 Roseann LaManna v. Proformance Insurance Company, et al. (A-101-03)
N.J.S.A. 2B:23-17 is constitutional and any error in failing to have the parties agree on the record to a less than five-sixths jury verdict was harmless.
7-13-05 Stephen Shankman v. State of New Jersey, et al. Dora Shankman v. State of New Jersey, et al. (A-76/77-04)
It was reversible error for the trial court not to have engaged in further inquiry with the jurors on the quotient verdict issue, as it arose on this record, in respect of both liability and damages, when requested by counsel to do so. It was error for the trial court to have permitted the jury to consider Dora's pleading in the count against Stephen as evidence of fault against Stephen for whatever measure of significance and weight the jury deemed appropriate. The defense's use of the settlement evidence strayed into prohibited terrain. That misuse was triggered by the erroneous ruling that admitted the allegations of Dora's complaint against Stephen and was compounded when the court instructed the jury that Dora's allegations could be considered evidence of fault. On retrial, the allegations of the complaint may not be used in that manner.
6-30-05 Gayatri Shah v. Mayank Shah (A-93-04)
On the filing of a domestic violence complaint by a plaintiff in the Family Part of the Chancery Division of the Superior Court in a county where the alleged violence occurred, where the defendant resides, or where the plaintiff resides or is sheltered, New Jersey courts have the authority to issue ex parte relief in the form of a temporary restraining order upon a showing both that the plaintiff is in danger of domestic violence and that the temporary restraining order is necessary to protect life, health or well-being., If personal jurisdiction cannot be exercised over the defendant within constitutional due process limits, the temporary restraining order may only provide for prohibitory relief, and no final restraining order may issue. Once issued, an order for emergency, ex parte relief shall remain in effect until a judge of the Family Part issues a further order.
6-30-05 Linda R. French v. Enrique Hernandez, et al. (A-58-04)
No reasonable trier of fact could conclude that Hernandez had either express or implied permission to operate Decker's truck on the night of the accident; therefore, summary judgment should have been entered in favor of Harleysville because the record does not raise a genuine issue of material fact supporting the plaintiff's claim.
6-29-05 New Jersey Association of Nurse Anesthetists, Inc. v. New Jersey State Board of Medical Examiners (A-92-04)
Judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge Alley's written opinion. The rules promulgated by the New Jersey Board of Medical Examiners and challenged by the New Jersey State Association of Nurse Anesthetists, Inc. were within the BME's delegated authority and were enacted in accordance with applicable legal principles.
6-29-05 In the Matter of the Estate of Elizabeth Hull Vayda, Deceased (A-48-04)
The circumstances here do not present sufficient cause to depart from New Jersey's deep-rooted adherence to the “American Rule,” a rule that requires that each party bear their own attorneys' fees. In this case, the successful sibling's attorneys' fees nonetheless should be reimbursed by the estate.
6-28-05 Donna Hennessey v. Winslow Township, et al. (A-11-04)
Issue preclusion was determined appropriately by the Appellate Division not to apply in this setting, and for the correct reason. Preclusion is not warranted in these circumstances because of the stage at which plaintiff shifted gears from the administrative channels of review available to her, to the judicial forum that she preferred.
6-28-05 Laura Randazzo v. Joseph J. Randazzo, Jr. (A-15-04)
A trial court has the discretion to order the sale of marital assets prior to a judgment of divorce when the circumstances of the case so justify. Although ordinarily distribution of the proceeds from the sale of a marital asset should await the final judgment of divorce, a court has the discretion to order an earlier distribution to serve the best interests of the parties.
6-27-05 Banco Popular North America v. Suresh Gandi, et al. (A-5/6-03)
There is no cause of action for creditor fraud in this jurisdiction but the attorney may be liable for conspiracy to violate the Uniform Fraudulent Transfer Act for his participation in the transfer. Such an action would require the creditor to prove that the conspirator agreed to perform the fraudulent transfer, which, absent the conspiracy, would give a right of action under the UFTA. The attorney also may be liable for misrepresentations he made in connection with the opinion letter he issued on the subsequent loan.
6-23-05 State of New Jersey v. John R. Cummings (A-65-04)
Because a breathalyzer refusal case is properly a quasi-criminal matter, the constitutionally required burden of proof is the one applicable to criminal cases; proof beyond a reasonable doubt. This ruling shall have “pipeline retroactivity” effect. The case is remanded to the municipal court, where Cummings is to be afforded the opportunity either to withdraw his plea and proceed to trial under the proof beyond a reasonable doubt standard or to accept his earlier conviction and sentence.
6-22-05 Andrew Yurick v. State of New Jersey, et al. (A-34/35-04)
Yurick failed to state a claim because the specific facts alleged here do not include the type of retaliatory action that was made actionable by CEPA.
6-21-05 State of New Jersey v. W.A. (A-68-04)
Under Rule 3:16, a defendant, who requests it, ordinarily has a right of presence at voir dire sidebar conferences. However, that right is not absolute, and where security issues are implicated, a court may utilize other methods to secure a defendant's meaningful participation in voir dire including technology, the modified struck-jury system, and, as a last resort, the “lawyer-shuttle” process. A defendant's exclusion from sidebar, after having requested presence, and in the absence of a substituted process such as the use of technology, does not automatically warrant reversal.
6-20-05 State of New Jersey v. Marlene McAllister (A-87-03)
Under the New Jersey Constitution, citizens have a reasonable expectation of privacy in bank records. However, existing grand jury subpoena procedures sufficiently protect that expectation. Neither a probable cause standard for grand jury subpoenas nor notice to account holders is a constitutional requirement. Although notice to account holders is not constitutionally required, additional protections may be desirable. The Criminal Practice Committee is directed to make a recommendation on whether the Court should consider additional safeguards for account holders.
6-16-05 State of New Jersey v. Obed Torres, etc. (A-22-04)
The trial court's instruction on accomplice liability was appropriate, and if properly qualified, an expert may give gang-related testimony. The trial court did not abuse its discretion in finding Vazquez was qualified as an expert and that his testimony would be helpful for the jury to understand the issues in the case.
6-15-05 The Times of Trenton Publishing Corporation v. Lafayette Yard Community Development Corporatio (A-22-04)
Lafayette Yard is subject to both statutes because it is a public body that performs a governmental function within the meaning of the Open Public Meetings Act and an instrumentality or agency created by a political subdivision under the Open Public Records Act.
6-15-05 In the Matter of the Civil Commitment of E.D. (A-62-04)
Due process requires that the State give a committee written notice of each asserted violation of a conditional discharge, and that prior to recommitment under the New Jersey Sexually Violent Predator Act, the State must prove by clear and convincing evidence the person is highly likely to reoffend.
6-14-05 Christina DiProspero v. Barbara J. Penn, et al. (A-66-03)
The plain language of N.J.S.A. 39:6A-8(a) does not contain a serious life impact standard. Nothing in AICRA's preamble, its legislative history, or its policy objectives suggests that th Legislature intended this Court to write in that standard. The Appellate Division judgment is reversed and the matter is remanded for proceedings consistent with this opinion.
6-14-05 Octavio Serrano v. Jacqueline Serrano, et al. (A-99-03)
The Legislature considered the injuries enumerated in N.J.S.A. 39:6A-8(a) to be serious by definition. A plaintiff need only prove that he suffered an injury described in N.J.S.A. 39:6A-8(a)'s limitation on lawsuit threshold to recover noneconomic damages. In this case, Serrano must prove that he suffers from a permanent injury to a body part or organ. We remand to the trial court for proceedings consistent with this opinion.
6-8-05 State v. Shamsid Knight, etc. (A-43-04)
There was sufficient credible evidence to find, beyond a reasonable doubt, that Knight voluntarily waived his right against self-incrimination and freely gave to police his statement concerning the murder of the taxi driver, therefore the trial court properly denied Knight's motion to suppress. Furthermore, because Knight entered an unconditional guilty plea to robbery charges, he waived his right to challenge the admissibility of the robbery confessions and, as a result, that motion to suppress also was properly denied.
6-7-05 Virginia B. Puder, Esq. v. Kathleen Buechel (A-95-03)
Mrs. Buechel is bound by her testimony before the trial court concerning the acceptability and fairness of the divorce settlement agreement. Those representations demonstrate that Mrs. Buechel resolved her divorce in a manner that was satisfactory to her, precluding her from bringing a malpractice claim against Puder.
6-6-05 Raymond Pinto, Jr. v. New Jersey Manufacturers Insurance Company, et al. (A-89-03)
The New Jersey Manufacturers' policy language is not ambiguous. It does not designate Pinto by name, or by implication, as a “named insured.” Like the Appellate Division, we find the language of the step-down clause enforceable. An employer can cover employees as “named insureds” provided appropriate language is added stating such an intention. We impose on insurers, their agents, and brokers, a duty to inform employers about the necessity for such language so that employers may make informed decisions about whether their employees will have the status of “named insureds” under the employers' business automobile insurance policies.
6-6-05 Thomas Murawski v. CNA Insurance Company (A-92-03)
For the reasons expressed in Pinto , we affirm the enforceability in general of step-down provisions in respect of UIM coverage provided the insurance contract language is clear. Murawski was not a “named insured” nor could he reasonably have expected to be based on the policy's language.
6-6-05 Shedrack Skeete v. Chaisner Dorvius, et al. (A-14-04)
Substantially for the reasons expressed by the Appellate Division, the notice of the addition of the step-down was insufficient because of its presentation as part of an essentially undifferentiated passel of two hundred documents. Policy changes must be conveyed fairly.
5-26-05 James Szalontai v. Yazbo's Sports Café, et al. (A-6-04)
Before the doctrine of res ipsa loquitur operates to shift the burden of persuasion to the defendant in a negligence case, the plaintiff first must meet all of the elements of the three-part res ipsa loquitur test; a plaintiff's failure to prove any one of those elements by a preponderance of the evidence renders the doctrine and its concomitant burden-shifting unavailable to that plaintiff. In addition, discovery in all civil cases subject to discovery track assignment must be completed in a timely manner, and additional time for discovery is available only in the limited circumstances set forth in Rule 4:24-1(c).
5-24-05 Municipal Council of the City of Newark v. Sharpe James, Mayor of the City of Newark, et al. (A-52-04)
Under the circumstances presented here, the statutory scheme of the Faulkner Act, under which the City of Newark is organized, allocates the responsibility for initiating, negotiating, and signing contracts to the Mayor, while City Council is charged with approving or rejecting the contracts presented to it by the Mayor.
5-24-05 State of New Jersey v. Terrence O'Brien (A-36/75-04)
Judgment of the Appellate Division is affirmed in part, based on the unanimous opinion of the Appellate Division, and reversed in part, based on the dissenting opinion of Judge Carchman, and defendant's conviction and sentence are reinstated. The trial court did not err in refusing to ask prospective jurors during voir dire whether they could accept that if defendant were acquitted by reason of insanity, procedures were in place to provide adequately for defendant while protecting the safety of the public, and the trial judge's voir dire was sufficiently probing and thorough to secure an unbiased jury. The prosecutor did not exceed the bounds of proper cross-examination in his questioning of defendant's psychiatric expert.
5-23-05 State v. R.B. (A-51-03)
C.R.'s statements were properly admitted without reservation under the tender years exception to the hearsay rule; the jury charge, although somewhat different from the model charge, communicated clearly the purpose and limitations of Child Sexual Abuse Accommodation Syndrome (CSAAS) evidence and was sufficient under the circumstances; and, the prosecutor's remarks in summation did not constitute prosecutorial misconduct.
5-23-05 Cumberland Mutual Fire Insurance Company v. Timothy Murphy, III, et al. (A-46-04)
The members of the Court being equally divided, the judgment of the Appellate Division is affirmed. The occurrence in this case was an “accident” within the meaning of the Cumberland homeowner's policy.
5-19-05 Board of Education of City of Millville v. NJDOE
Board of Education of Township of Pemberton v. NJDOE
Board of Education of Town of Phillipsburg v. NJDOE
Board of Education of Township of Neptune v. NJDOE (A-4-04)
The State must ensure that full funding is available for approved preschool programs; however, the DOE may require the Abbott districts to reallocate monies from other district budget accounts to make up preschool program shortfalls. The reallocated monies will be replaced by the DOE through supplemental funding unless the DOE can demonstrate that the monies are not needed by the Districts.
5-19-05 Board of Education of the City of Passaic v. New Jersey Department of Education (A-3-04)
Adjustments to state aid formulas that are not calibrated with program costs cannot be made late in the school year unless there is a meaningful opportunity for the District to present information related to actual costs and the adjustment is then realigned with those actual costs.
5-18-05 Marilyn A. Steneken v. Gary L. Steneken (A-100-03)
In determining the income from a closely held corporation for purposes of awarding alimony, there is no requirement that a court use the same method of calculating income that is used to determine the value of the corporation for equitable distribution purposes. The interplay between an alimony award and equitable distribution is subject to an overarching concept of fairness.
5-18-05 Thiedemann, et al. v. Mercedes-Benz, USA, LLC (A-41-04)
The punitive class representatives failed to produce evidence from which a finder of fact could find or infer that they suffered a quantifiable or otherwise measurable loss as a result of the alleged Consumer Fraud Act violation, pursuant to N.J.S.A. 56:8-1 to -20; therefore, Mercedes-Benz is entitled to summary judgment.
4-13-05 State v. B.H. (A-59-03)
In light of the particular requirements of the duress statute, N.J.S.A. 2C:2-9, courts must apply the standard of a “person of reasonable firmness” in determining whether duress excuses criminal conduct, and battered woman syndrome expert testimony is not relevant to that analysis. Battered woman syndrome evidence is relevant to a defendant's subjective perception of a threat from her abuser and, in that respect, can be relevant to her credibility. Such evidence also aids the jury in explaining why the defendant would remain with her abuser and, therefore, why she should not be perceived as acting recklessly.
4-13-05 State v. Joanne Brennan (A-16-04)
As held in State v. B.H., in light of the particular requirements of the duress statute, N.J.S.A. 2C:2-9, courts must apply the standard of a “person of reasonable firmness” in determining whether duress excuses criminal conduct, and battered woman syndrome expert testimony is not relevant to that analysis. Battered woman syndrome evidence is relevant to a defendant's subjective perception of a threat from her abuser and, in that respect, can be relevant to her credibility. Such evidence also aids the jury in explaining why the defendant would remain with her abuser and, therefore, why she would not be perceived as acting recklessly.
4-12-05 DelaCruz, et al. v. Borough of Hillsdale, et al. (A-72/73-03)
The Tort Claims Act's verbal threshold applies to common-law false arrest/false imprisonment claims. Furthermore, under N.J.S.A. 59:3-3, a police officer's subjective good-faith belief as to the propriety of his or her actions is irrelevant as to liability for any false arrest or false imprisonment claim. Instead, the only relevant inquiry is whether, on an objective basis, the police officer's actions were proper. Finally, a police officer's subjective good faith belief may not constitute a defense at trial to a claim under the Federal Civil Rights Act, 42 U.S.C.A. § 1983, when the police officer's actions are not otherwise shielded from liability by the doctrine of qualified immunity.
4-11-05 In the Matter of the Grand Jury Appearance Request by Larry S. Loigman, Esq. (A-51-04)
A private person does not have the right to present an allegation or evidence of a crime to a grand jury.
4-7-05 Nav-Its, Inc. v. Selective Insurance Company of America (A-20/21-04)
Because the history of the pollution-exclusion clause in comprehensive general liability policies demonstrates that its purpose was to have a broad exclusion for traditional environmentally-related damages, the Court holds that the pollution-exclusion clause in this case does not bar coverage for personal injuries arising from exposure to toxic fumes emanating from a floor coating-sealant operation performed by the insured.
4-6-05 Brenda Mani v. James J. Mani (A-53-03)
Marital fault is irrelevant to alimony except in two narrow instances: cases in which the fault negatively affects the economic status of the parties and cases in which the fault so violates societal norms that continuing the economic bonds between the parties would confound notions of simple justice. Marital fault is irrelevant to a counsel fee award.
4-4-05 The Community Hospital Group, Inc. v. Jay More, M.D., et al. (A-75/76-03)
A restrictive covenant in an employment contract between a hospital and a physician are not per se unreasonable and unenforceable. Under the circumstances of this case, however, the geographic restrictive area is excessive and must be reduced to avoid being detrimental to the public interest. In addition, because the two-year period for the restrictive covenant in this case has expired, the request for injunctive relief is moot.
4-4-05 Christopher Pierson, M.D. v. Medical Health Centers, P.A., and Joseph Clemente, M.D. (A-10-04)
Employment contracts that contain a restrictive covenant between a physician and a hospital, although not favored, are not per se unreasonable and unenforceable.
3-30-05 State v. Tyrone L. Gentry (A-27-04)
The use of “force on another” is a critical element of robbery. In deliberating on a charge of that offense, the jury must agree unanimously on which acts were committed against which victim.
3-29-05 Patricia Robinson and David Robinson v. Dominick N. Coia, Jr., et al. (A-28-04)
Judgment of the Appellate Division is reversed substantially for the reasons expressed by Judge Wecker in her dissenting opinion below. The “other insurance” clause in Avis' rental agreement renders Avis' coverage excess to Brown's personal automobile liability insurance. Nevertheless, since both the rental agreement and Brown's personal automobile policy have “other insurance” clauses, the two-carriers are co-primary and should share liability equally.
3-22-05 State of New Jersey in the Interest of S.S. (A-29/38/39-04)
The judgments of the Appellate Division are affirmed substantially for the reasons set forth in State of New Jersey in the Interest of S.S., 367 N.J. Super. 400 (App. Div. 2004). On the backdrop of the legislative goals underlying the criminal contempt statute and the juvenile justice scheme, it was error to subject a status offender to an adjudication of delinquency based upon a repetition of the runaway conduct and truancy that brought the family to the court for help in the first place.
3-21-05 Wendy Greczyn, et al. v. Colgate-Palmolive, et al. (A-2-04)
When plaintiff's injury and the filing of a lawsuit occur within the period of repose, utilization of our fictitious-party practice allows a previously unknown, although functionally identified, designer or builder to be named after the expiration of the period of repose, so long as plaintiff has acted diligently.
3-17-05 Township of Monroe v. William W. Gasko, et al. (A-30-04)
The temporary greenhouses at issue in this case, in which the growing operation fully utilizes the greenhouses and no adjustments are made to address marketing or retail concerns, qualify for farmland assessment under N.J.S.A. 54:4-23.12(a), even though the public is allowed in to choose and remove plants for the purpose of purchasing them elsewhere.
3-17-05 John G. Ostrowski, et al. v. Cape Transit Corp., et al. (A-66-04)
Judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge Skillman's opinion below. Defendants' presentation of expert medical opinion testimony that Ostrowski was faking his symptoms of a serious brain injury constituted an attack on his character for truthfulness entitling him to rebut with evidence that he is a truthful person.
3-16-05 In the Matter of E. Lorraine Harris, An Attorney At Law (D-52-02; D-109-03)
The pattern of respondent's conduct over a course of years makes clear that she does not possess the essential qualifications to practice law in this State, and her persistent and multiple violations of the Rules of Professional Conduct do not allow a finding that she is professionally salvageable; protection of the public and preservation of the integrity of the legal profession require her disbarment.
3-15-05 State v. Naseem Abdul Muhammad (A-88-03)
The prosecutor's repeated use of Muhammad's silence was a violation of his state law privilege against self-incrimination that was clearly capable of producing an unjust result. The court's charge on the lesser-included offense of sexual contact was not erroneous because neither party objected and the record provides rational support for the conviction.
3-10-05 Theodore Price v. New Jersey Manufacturers Insurance Company (A-26-04)
The record amply supports the trial court's finding that NJM's conduct lulled Price and his attorney into believing that the uninsured motorist claim had been appropriately filed. Therefore, the trial court properly rejected NJM's statute of limitations defense.
3-9-05 State v. Damon L. Hill (A-80-03)
There is a “compelling need for the use of special verdict [forms],” State v. Diaz , 144 N.J. 628, 644 (1996), under Rule 3:19-1(b) for the jury to designate which felony or felonies constitute the predicate crime for a felony murder conviction. If the jury designates more than one felony as the predicate for felony murder, the trial court at sentencing is to merge only the predicate felony that set in motion the chain of events leading to the murder – the “first-in-time” predicate felony – into the felony murder conviction.
3-8-05 Tammy Moon v. Warren Haven Nursing Home (A-23-04)
Because the trial court's order granting plaintiff's motion to file a late notice of claim under the New Jersey Tort Claims Act resolves only the first issue, and not all issues related to the cause of action, the order is interlocutory and not final. It is, therefore, not appealable as of right.
3-3-05 State v. Daniel Dalziel (A-98-03)
Because the trial judge did not apply the proper sentencing standards, which included a failure to consider mitigating factors grounded in the record, the matter is remanded for resentencing.
3-2-05 Edward T. Coyne, et al. v. State of New Jersey, Department of Transportation, et al. (A-1-04)
On the record developed below on defendants' motion for summary judgment, the Department of Transportation's actions and McDaniel's actions were not immune. We are unable, however, to determine on that record whether DOT's and McDaniel's actions were “palpably unreasonable.” Therefore, we reverse the judgment of the Appellate Division, and remand this case to the trial court.
2-28-05 U.S. Sportsmen's Alliance v. N.J. Department of Environmental Protection (A-69-04)
The Fish and Game Council's power to authorize a black bear hunt is subject to the statutory condition precedent of the Commissioner's approval of comprehensive policies governing the propagation of black bears.
2-24-05 Stewart Zive v. Stanley Roberts, Inc. (A-82-03)
So long as the employee shows that he has been performing in the position from which he has been terminated, the second prong of a prima facie case under McDonnell Douglas is fulfilled. The quality of the employee's performance does not come into play on the plaintiff's prima facie case.
2-17-05 State of New Jersey v. J.M. (A-79-03)
Rule 5:22-2 is modified to expressly permit a juvenile to present evidence at the probable cause hearing. We also hold that pursuant to N.J.S.A. 2A:4A-26a and the Attorney General's Juvenile Waiver Guidelines, the prosecutor's failure to provide a statement of reasons for seeking waiver requires a remand.
2-10-05 In the Matter of Richard J. Zeitler, An Attorney at Law (D-162-03)
Richard J. Zeitler's ethics derelictions in these matters, consisting of multiple instances of neglect, lack of diligence, failure to communicate and misrepresentation, coupled with his extensive ethics history, warrant his disbarment.
2-1-05 State v. Alexander Branch (A-78-03)
The police detective's testimony that he developed Branch as a suspect based on information received from an unknown source was inadmissible hearsay that violated Branch's right of confrontation. The children's out-of-court description of that burglar was inadmissible hearsay because the children had an opportunity to deliberate before making the statement.
2-1-05 State v. Nathan Cotto (A-56-03)
The trial court did not commit reversible error in failing to give a detailed identification instruction, in admitting hearsay statements, or in precluding evidence of third-party guilt.
2-1-05 State v. Curtis Benthall (A-69-03)
The State failed to demonstrate the surprise required for neutralization of the witness' testimony. As a result, hearsay was improperly put before the jury, and the prosecutor was permitted to comment on that hearsay as substantive evidence.
1-27-05 Sandra G. Caplan v. Craig Caplan (A-57-03)
Even when there is sufficient investment income to satisfy a child support award, the court, in determining a party's child support obligation, should impute income based upon the party's past income or earning potential in order to fairly allocate the child support obligation.
1-26-05 State v. Kaa'Wone Johnson (A-7-04)
Being subject to the mandatory period of parole supervision under the No Early Release Act (NERA) constituted a direct, penal consequence of Johnson's plea to three counts of second-degree aggravated assault. Because Johnson was not informed about the consequences of being subject to NERA's fixed period of parole supervision, he is entitled to seek the vacation of his plea.
1-26-05 State v. Carlos M. Rosado (A-8-04)
Consistent with our holding in State v. Johnson, ___ N.J. ___ (2005), decided today, Rosado is entitled to seek the vacation of his plea.
1-25-05 Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Center Associates (A-86-03)
In the circumstances of this case, Defendant breached the covenant of good faith and fair dealing through a series of evasions and delays that lulled Plaintiff into believing it had exercised the lease option properly. Plaintiff is entitled to specific performance of the lease option in accordance with the terms of the contract.
1-24-05 DKM Residential Properties Corp. v. The Township of Montgomery, et al. (A-61-03)
A municipal construction official has the authority under the Uniform Construction Code Act to cite a developer for a construction code violation in respect of property that has been conveyed and for which a certificate of occupancy has issued.
1-24-05 Stephen Szczuvelek v. Harborside Healthcare Woods Edge, et al. (A-64-03)
The Court being equally divided on the issue of the timeliness of the filing date of the complaint against Harborside, the judgment of the Appellate Division is affirmed in respect of Harborside. The Court unanimously finds that the trial court erred in entering judgment dismissing the complaint against Somerset and remands the matter to the trial court for further consideration.
12-22-04 State v. Lloyd Fuller (A-76-02)
The jurors excluded in this case are members of a cognizable group, and the prosecutor failed to present sufficient evidence of situation-specific bias to justify the State's peremptory challenges.
12-21-04 Robert Sager v. O.A. Peterson Construction Co. (A-65-03)
Sager's injuries are compensable because the on-site supervisor's credible testimony supports the conclusion that Sager was acting under the direction of his employer when the automobile accident occurred.
12-16-04 State v. Leardee D. Jenkins (A-68-03)
A trial court must remove a deliberating juror who unequivocally expresses an unwillingness or inability to put aside bias and follow the law. In this case, however, jury deliberations had advanced too far to permit substitution with an alternate juror, and a mistrial should have been declared.
12-15-04 Kathleen F. Ronan v. Peter G. Adely (A-58-03)
When the primary caretaker seeks to name or, as here, change the surname of a child, there is a presumption in favor of the primary caretaker that the name selected is in the best interests of the child. That presumption may be rebutted by proof offered by the secondary caretaker that the name change is not in the best interests of the child. Because the trial court failed to apply that presumption and failed to make findings of fact, a remand is required.
A-62-03 State v. Ahmad Daniels (A-62-03)
The prosecutor's comments on summation were unfairly prejudicial to Daniels. Failure by the trial court to give an adequate curative instruction was plain error.
12-7-04 A.H. Robins Company, Inc. v. Director, Division of Taxation (A-96-03)
Judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge Stern's opinion. The Tax Court properly held that Robins II, the corporate survivor of a merger and bankruptcy reorganization, was not entitled to a net-operating-loss deduction for losses suffered by the merged corporation in previous years.
12-6-04 Cherry Hill Manor Associates v. Paul Faugno, Esq., et al. (A-90/91-03)
Since both of the third-party defendants' alleged acts of malpractice constituted separate torts at different times, covering a six-year period, their separate acts of malpractice cannot constitute “joint liability” under the Joint Tortfeasors Contribution Law; moreover, because both of the third-party defendants' alleged malpractice produced different damages or injuries to plaintiff, the “same injury” requirement of the Law cannot be satisfied for the imposition of contribution liability on a joint tortfeasor, and the trial court properly dismissed the third-party complaints against those tortfeasors.
12-1-04 State v. Michael W. Banko (A-60-03)
A jury may render inconsistent verdicts so long as there exists a sufficient evidential basis in the record to support the charge on which the defendant is convicted. Here, there exists adequate evidence to support the jury's verdict of guilt on the unlawful possession charge. Therefore, defendant's conviction must be reinstated.
11-22-04 Information Spectrum, Inc. v. The Hartford (A-67-03)
The judgment of the Appellate Division is affirmed substantially for the reasons expressed in the Appellate Division's opinion.
Under the advertising injury provisions of the comprehensive liability policy, the insurer was not required to defend the claim against the insured because the alleged harm was not caused by an advertising act.
11-18-04 In the Matter of the Guardianship of J.N.H., a Minor (A-97-01)
The record established before the trial court fully supports the decision to terminate the parental rights of C.H.G. over her son, J.N.H.
11-15-04 Henry F. Furst v. Einstein Moomjy, Inc., et al. (A-77-03)
When a merchant violates New Jersey's Consumer Fraud Act by delivering defecting goods and then refusing to provide conforming goods, the consumer's ascertainable loss is the replacement value of the goods. In proving replacement value, plaintiff is entitled to the rebuttable presumption that the regular price advertised on the sales tag is the replacement value of the carpet.
11-10-04 State v. Charles E. Reddish, Jr. (A-47-02)
A defendant in a capital case has the right to proceed pro se, but with the protection of mandatory standby defense counsel. Because the Court is reversing on other grounds, it need not decide whether the trial court erred in denying Reddish's motion to proceed pro se. The admission of evidence that Reddish was in custody on unrelated charges when he confessed and the erroneous instructions on the inability of police to locate the victim's body are errors that, cumulatively, warrant reversal of the conviction.
10-27-04 New York SMSA Limited Partnership d/b/a Bell Atlantic Mobile et als. v. Township of Mendham Zoning Board of Adjustment, et al. (A-83/84-03)
Judgment of the Appellate Division is affirmed substantially for the reasons expressed in that court's opinion below. The denial by the Township of Mendham Board of Zoning Adjustment of plaintiffs' request for a zoning variance to erect a wireless cellular communications tower in the Township violated the Federal Telecommunications Act by effectively prohibiting wireless communications services.
10-26-04 State v. Kevin Jarrells (A-74-03)
The judgment of the Appellate Division is reversed substantially for the reasons expressed in State v. Wade and State v. Ferencsik. The No Early Release Act applies to second-degree vehicular homicide.
10-19-04 State v. Ambrose A. Harris (A-94-02)
Harris has failed to demonstrate ineffective assistance of counsel or any other grounds for relief from his conviction and sentence of death. Harris's petition for post-conviction relief is denied.
9-27-04 State v. Richard Hodde (A-14-03)
Whenever the State seeks a conviction for the crime of receiving stolen property, it must prove that the property in question was actually stolen.
9-22-04 Jenevieve Casinelli v. Wilfredo Manglapus (A-105-02)
The physician certification is neither a fundamental element of the New Jersey Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1 to –34, cause of action nor analogous to a pleading and therefore, neither dismissal with nor without prejudice is compelled. Rather, the late filing of the physician certification is akin to a discovery violation with respect to which the court may resort to any of a full panoply of remedies, ranging from an order to compel production through dismissal, depending on the facts.