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Vol. 2, No. 29 DECISIONS ISSUED FEBRUARY 18, 1994 TAXATION 35-5-2654 Passaic Street Realty Assoc. v. Garfield City, Tax Ct. (7 pp.) Where taxpayer (1) claimed that a tax assessment should be limited to an original assessment made on his properties and (2) withdrew claim for discrimination under N.J.S.A. 54:51A-6, tax court held that it is free to increase a subject property’s assessment above the assessor’s and the county board’s determinations, whether or not claim of discrimination is pled.. [Approved for publication on Feb. 16, 1994] ATTORNEY/CLIENT – CRIMINAL LAW AND PROCEDURE 04-1-2655 In the Matter of Frank J. Hoerst, III, An Attorney at Law, Sup. Ct. (14 pp.) Where, among other things, prosecutor pled guilty to third-degree theft for failure to properly dispose of received property, suspending him from the practice of law for six months was an appropriate sanction, considering the attorney’s distinguished career. CONTRACTS – REAL ESTATE 11-2-2656 North Jersey Property Associated v. Samuel Checinski, App. Div. (8 pp.) Where buyer could not obtain financing as specified in a property sale contract, and escrow agent gave deposit money to the seller, trial court erred in returning deposit to buyer, since buyer did not timely object when the money was given to the seller, or at trial and appellate levels. DEBTOR/CREDITOR – REAL ESTATE 15-2-2657 Prudential Insurance Company v. Willard Jackson and Old Republic Insurance Company., et al., App. Div. (13 pp.) Chancery court erred in entering foreclosure judgment in favor of mortgagee who held a Veterans Administration (VA) guaranteed mortgage, where mortgagee may not have complied with regulatory and statutory prerequisites for foreclosure of a VA mortgage, since (1) mortgagor’s response to foreclosure action raised factual issues necessitating a plenary hearing, and (2) a chancery court may deny a foreclosure remedy upon finding that a foreclosing mortgagee’s conduct violated the clean hands doctrine. ENVIRONMENT/GOVERNMENT 17-2-2658 New Jersey Department of Environmental Protection and Energy (DEPE) v. Thomas E. Reeves, App. Div. (4 pp.) Where DEPE charged fishermen for violating state regulations, prohibiting dredging for horseshoe crabs and conchs, trial court erred in holding that Title 50 restricted such fishing, since Title 50 deals with clam and oyster fishing and Title 23 of the Fish and Game Laws governs crab and conch fishing. GOVERNMENT – TORTS 21-2-2659 Robert W. Bundy and Creative Photography v. The Franklin Mutual Insurance Co., et al., App. Div. (10 pp.) Where plaintiff’s building cracked from vibrations caused by construction to widen a state highway located sixty feet from the building property, trial court erred in holding that private contractors could share in the state’s sovereign immunity, since a material factual issue existed as to whether the contractors had the discretion to choose the method for compacting soil, which would remove the sovereign immunity. INSURANCE – AUTOMOBILE 23-2-2660 John C. DeSantis v. Margaret Connors, App. Div. (6 pp.) Plaintiff failed to satisfy the verbal threshold in a back- injury case, since reputation of plaintiff’s treating physician was questionable and trial judge found no correlation between plaintiff’s medical condition and inability to adequately perform responsibilities in course of his employment. LAND USE 26-2-2661 Joszef Transzer and Debra Guanicone v. Planning Board of the Township of Branchburg, et al., App. Div (5 pp.) Planning board erred in denying plaintiffs’ variance application at a meeting, held before a ten-day extension which plaintiffs had not consented to, since a board could not decide plaintiff’s application without a hearing. CRIMINAL LAW AND PROCEDURE 14-2-2662 State v. William C. Christensen, App. Div. (8 pp.) Where defendant pled guilty to second degree aggravated assault and was sentenced to a noncustodial 3-year probationary term, from which the state appealed pursuant to judge’s ten day stay of sentence at a sentencing hearing, defendant’s claim — that the state’s appeal violated the double jeopardy clauses of the federal and state constitutions — was properly dismissed, since a sentence may be partially executed without double jeopardy attaching so long as the trial court advises a defendant of the state’s right to appeal 14-2-2663 State v. Terrance Clifton, App. Div. (6 pp.) Where a discrepancy existed in an affidavit supporting a search warrant — between the date a warrant was issued and the date when information of criminal activity was received from a confidential informant, trial court properly did not hold a hearing to determine the veracity of an affidavit, since there was no evidence that the two affiants intentionally misrepresented the facts for the purpose of obtaining a search warrant. 14-2-2664 State v. Eric E. Crute, App. Div. (5 pp.) Where defendant claimed that victim could not see the weapon that defendant assaulted her with since it was dark and she was accosted from behind, trial judge properly did not conduct a hearing to determine whether the unrecovered “pistol,” which the victim testified defendant used to commit the robbery, was a “firearm” requiring a Graves Act sentencing, since there was no challenge to the weapon design described by the victim, and the jury determined that the defendant used a firearm. CRIMINAL LAW AND PROCEDURE – ATTORNEY/CLIENT 14-2-2665 State v. Alvin Conerly, App. Div. (5 pp.) Where defendant’s counsel presented arguments telephonically and not by personal appearance during defendant’s post-conviction relief hearing, trial court properly held that defendant had effective assistance of counsel, since counsel was able to articulate telephonically precise arguments on defendant’s behalf and the arguments would not have varied by an in-court presentation. EDITOR’S NOTE: The Alert will not be published on Monday, February 21, 1994, a legal holiday.

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