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Vol. 2, No. 16 DECISIONS ISSUED JANUARY 31, 1994 AUTOMOBILE 05-2-2424 State v. Andrew B. Micka, App. Div. (3 pp.) Trial court properly upheld defendant’s conviction of driving while intoxicated, disagreeing with defendant’s contention that the state failed to prove that the alcohol content of the simulator solution had not been depleted by 48 previously administered tests, since (1) state standards permit up to 50 tests from a single sample of simulator solution and (2) defendant’s expert had not quantified alcohol amount that would be lost with each test, which would bring results into question. CONSTITUTIONAL LAW 10-2-2425 In the Matter of Application For Gun Permit By Andrew J. Naporano, Jr., App. Div. (4 pp.) Where applicant had documented threats against his life, and his business had been deliberately set on fire, trial court erred in denying applicant’s gun permit, since applicant had demonstrated “urgent necessity for self protection” under N.J.S.A. 2C:58-4. CORRECTIONS 13-2-2426 Steven J. Maher v. William F. X. Plantier, et al., App. Div (4 pp.) Commissioner correctly denied inmate’s request for a retroactive pay increase where inmate’s job category had been eliminated under a revised wage scale instituted a year earlier due to the policies employed under the new scale. FAMILY LAW 20-2-2427 Stephanie Indica v. Conrad Indica, App. Div. (5 pp.) Trial judge properly held that New Jersey court did not have emergency jurisdiction over pending Louisiana custody action under the Uniform Child Custody Jurisdiction Act where father in unsupported certification alleged that the care provided by the mother, who allegedly abused alcohol and drugs, psychologically affected the child, since the father failed to present particularized facts or make a persuasive showing to warrant the court’s exercise of emergency jurisdiction. INSURANCE – AUTOMOBILES 23-2-2428 Joseph Cineas and Maria Cineas v. Larry Mammone, et al., App. Div. (17 pp.) Trial judge erred in granting insurance company’s second summary judgment under verbal threshold motion with the identical proofs used in the first summary judgment motion because interlocutory orders can be reversed only upon a showing of fundamental error in law or submission of new factual material and, absent new proofs, initial motion was properly denied since plaintiff’s medical reports demonstrated objective evidence of back spasm. CRIMINAL LAW AND PROCEDURE 14-2-2429 State v. Edward Dennison, App. Div. (4 pp.) Failure of the state to produce photograph books from which defendant was identified did not taint defendant’s in-court identification, since defendant’s counsel was not precluded from examining identification witnesses and supervising police. 14-2-2430 State v. Joseph J. Hart, App. Div (5 pp.) Trial court erred in denying defendant’s application to preclude his oral statements made during custodial interrogation where (1) defendant’s request for counsel noted in investigating officer’s report was not addressed during R. 8 hearing and (2) defendant’s testimony and his mother’s testimony was the only basis for incrimination, since question existed as to whether defendant effectively invoked his right to counsel. 14-2-2431 State v. Thomas Lee Henderson, App. Div. (6 pp.) For conviction of theft by unlawful taking, trial court properly allowed defendant’s character witness to be questioned on defendant’s prior conviction record — robbery, forgery and attempted theft — since the entire record of relevant convictions may be presented to prove similar character traits. 14-2-2432 State v. Eric Jordan, App. Div (4 pp.) Trial court correctly charged the jury on simple theft — independent of assault with a firearm — and fourth degree D. P. thefts as alternative lesser-included offenses to first and second degree robberies, since the finding was made after the court conducted extensive discussion with counsel, who did not request a charge on theft by deception. 14-2-2435 State v. Jessie J. Parsons, App. Div. (11 pp.) Trial court’s mere recitation of elements of crimes as jury instructions — which prompted jury questions during deliberation and a subsequent judicial instruction that the jurors’ questions were factual issues to be decided in the jury room — was improper, since jurors’ questions regarding material elements were not answered, undermining confidence in the deliberative process.

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