STATE COURT CASES
CONSUMER PROTECTION
09-1-1304 Perez v. Professionally Green, LLC, Sup. Ct. (Patterson, J.) (30 pp.) When a trial court grants a defendant’s motion for involuntary dismissal of plaintiffs’ Consumer Fraud Act claim under Rule 4:37-2(b), no bona fide ascertainable loss claim exists within the meaning of N.J.S.A. 56:8-19, and thus plaintiffs are not entitled to attorney fees. [Decided Sept. 12, 2013.]
CRIMINAL LAW
14-1-1270 State v. Handy, Sup. Ct. (Hoens, J.) (47 pp.) The bifurcated trial procedure created in State v. Kahn, 175 N.J. Super. 72 (App. Div. 1980), is disapproved and that decision is overruled. In the future, trials that involve both a substantive defense and an insanity defense must be unitary proceedings. The matter is remanded to the trial court to afford defendant the opportunity to continue in a second phase of his trial in which he may present his self-defense claim. [Decided Sept. 9, 2013.]
LABOR AND EMPLOYMENT
25-1-1281 In the Matter of Johnson, Cape May County, Sup. Ct. (Cuff, P.J.A.D., temporarily assigned) (31 pp.) The reclassification of Johnson’s position was an arbitrary and capricious agency action that was manifestly unjust. Johnson is entitled to restoration of his prior unclassified title of prosecutor’s agent. [Decided Sept. 10, 2013.]
MEDICAL MALPRACTICE
29-3-1294 Graham v. Mehta, Law Div. — Middlesex Co. (Rea, J.S.C.) (5 pp.) The issue presented in this medical negligence case is whether the sole defendant at trial would be entitled to a credit against any verdict returned against him in an amount equivalent to the aggregate for which the other named defendants settled prior to the commencement of trial. The court determined that because defendant will be the only defendant for which the jury will determine liability, defendant is not entitled to such credit. [Decided June 5, 2013.]
FEDERAL COURT CASES
ADMINISTRATIVE LAW
01-8-1284 Lightner v. 1621 Route 22 West Operating Company, Third Cir. (Ambro, U.S.C.J.) (7 pp.) Appellee/cross-appellant J. Michael Lightner, the regional director of Region 22 of the National Labor Relations Board, brought charges of unfair labor practices before the NLRB against appellant/cross-appellee 1621 Route 22 West Operating Co., d/b/a Somerset Valley Rehabilitation and Nursing Center. The board then brought a petition in federal court under § 10(j) of the National Labor Relations Act, seeking temporary injunctive relief and to reinstate certain employees. The district court filed an opinion and order granting in part and denying in part the board’s petition. Somerset Valley appealed and the board cross-appealed. The board then issued a decision and order in the administrative action that rendered moot the district court’s temporary injunctive relief order. The board filed this motion to dismiss the cross-appeals and to instruct the district court to vacate its opinion and order. Here, neither party has relinquished its challenge to the district court’s opinion and order but review of the decision is not possible because, by the board’s ruling on the merits, the court’s ruling is now moot. Hence, all that vacating the prior opinion and order does is protect the parties from any adverse legal consequences of that unreviewed opinion. The circuit panel dismisses the appeal and cross-appeal as moot and remands with the direction that the district court vacate the opinion and order. [Filed Sept. 4, 2013.]
CRIMINAL LAW
14-8-1261 United States v. Figueroa, Third Cir. (Roth, U.S.C.J.) (21 pp.) Figueroa appeals from the district court’s judgments of conviction and sentence. Figueroa, a police officer in Camden, was convicted of civil rights violations under 18 U.S.C. §§ 241 and 242 and sentenced to 10 years’ imprisonment. Figueroa argues, inter alia, that the district court erred in applying the drug distribution sentencing guideline, U.S.S.G. § 2D1.1, to his civil rights violations because he was not convicted of offenses involving the distribution of drugs. The district court relied heavily on United States v. Cortes-Caban, in which the First Circuit Court of Appeals held that police officers who conspired to plant drugs on individuals to fabricate criminal offenses were properly convicted of conspiracy to possess controlled substances with an intent to distribute in violation of 21 U.S.C. §§ 841(a) and 846. The circuit panel concludes that the district court correctly found that Figueroa engaged in distribution of narcotics and properly applied the drug-distribution sentencing guideline to his civil rights violations. In so holding, the circuit panel adopts the court’s interpretation in Cortes-Caban of the meaning of “distribute” under 21 U.S.C. § 841(a). Under the plain language of the statute, a “distribution” encompasses the transfer of a controlled substance from one person or place to another and thus the planting of controlled substances on individuals to facilitate false arrests. The circuit panel affirms defendant’s convictions and sentence. [Filed Sept. 3, 2013.]
IMMIGRATION
51-8-1240 Al-Sharif v. U.S. Citizenship and Immigration Services, Third Cir. (Hardiman, U.S.C.J.) (13 pp.) Plaintiff, a lawful permanent resident of the United States, appeals from the denial of his application for citizenship because he had been convicted of conspiracy to commit wire fraud, which defendant determined to be an aggravated felony. He argued that under the hybrid-offense theory adopted in Nugent v. Ashcroft, his offense could not be deemed an aggravated felony because he was not sentenced to at least one year in prison. Because the hybrid-offense theory has not generated any serous reliance interest, has been seriously eroded by subsequent case law, and Kawashima v. Holder casts substantial doubt on it, the Third Circuit overrules the offense theory, holds that plaintiff was properly deemed an aggravated felon, and affirms the denial of his application. [Filed Aug. 19, 2013.]