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Vol. 2, No. 11 DECISIONS ISSUED JANUARY 21, 1994 AUTOMOBILES – CRIMINAL LAW AND PROCEDURE 05-3-2360 State v. Shawn Floyd, Law Div. (5 pp.) Where motor vehicle charge of reckless driving was joined with the indictable charge of preventing an officer from making an arrest by fleeing, trial court properly concluded that the motor vehicle charge merged into the indictable charge as a lesser-included offense. [Approved for publication Jan. 20, 1994.] CIVIL PROCEDURE 07-2-2361 Vladimir Zajic v. Adam Carney, App. Div. (5 pp.) Trial court erred by imposing a frivolous-claim sanction under N.J.S.A. 2A:15-59.1 upon plaintiff who voluntarily dismissed his claim against defendant after court-sponsored mediation, since defendant was not a prevailing party. CORPORATIONS – INSURANCE 12-2-2362 Milton Mitzner v. Lights 18, Inc. et al., App. Div. (9 pp.) Where 50-percent owners of corporation entered into a sale agreement under which one owner bought out the other and took control of the corporation’s assets, trial court properly concluded that owner who sold his interest was not entitled to corporation’s “key man” insurance policy on his life, since the policy was a corporate asset. EVIDENCE – GOVERNMENT 19-4-2363 Ken Shuttleworth and Southern N.J. Newspapers, Inc. v. The City of Camden et al., Ch. Div. (7 pp.) City was required under common law to disclose reports of statements made by police officers who witnessed the events surrounding the shooting death of a person in police custody, since (1) plaintiffs have established a need for the reports, (2) disclosure of the reports will not discourage citizens from cooperating with police investigations and (3) the reports are factual and do not contain policy decisions. [Filed Jan. 6, 1994.] INSURANCE – AUTOMOBILES 23-2-2364 Farije Sulejmani v. Reyna Amado et al., App. Div. (4 pp.) Plaintiff satisfied the verbal threshold by presenting doctor’s reports indicating that an MRI test revealed a bulging or partially herniated disc and that plaintiff has significant limits on the use of her cervical spine system. LABOR AND EMPLOYMENT 25-2-2365 Carol Combs v. Board of Review, App. Div. (12 pp.) Remand was ordered from board’s denial of unemployment benefits on the ground that claimant failed to submit adequate evidence to support her claim that she left work for medical reasons, since the interests of justice will be served by permitting claimant to supplement the record. HEALTH 22-2-2366 Douglas Colkitt, M.D. v. Bruce Sigel, Acting Commissioner of Health, App. Div. (25 pp.) Department of Health denied due process to doctor who sought a certificate of need authorizing him to open a radiation center by not permitting doctor to examine and rebut information submitted by a hospital that opposed the certificate, and remand was ordered. LAND USE 26-2-2367 Donald and Arlene Kasselman et al. v. Planning Board for the Borough of Tenafly et al., App. Div. (6 pp.) Trial court erred by reversing planning board’s denial of subdivision approval to homeowners who sought to combine unusable portions of their property into a third lot that would not conform with borough’s minimum size requirement, since board’s decision was not arbitrary, capricious or unreasonable. LANDLORD/TENANT 27-2-2368 Vitomar Marinkovic et al. v. Eugene Goldsmith, App. Div. (7 pp.) Trial court lacked jurisdiction to remove tenant who allegedly disturbed apartment building’s tenants with noise, since landlord did not serve tenant with a notice to cease as required by N.J.S.A. 2A:18-61.1. NEGLIGENCE 31-2-2369 Jean Gendek et al. v. Estrella Poblette et al., App. Div. (10 pp.) Carey v. Lovett, 132 N.J. 44 (1993) — which permits a mother to assert a direct claim, as opposed to a bystander claim, for infliction of emotional distress caused by the negligent treatment of a fetus — does not extend to parents whose newborn was negligently treated, and trial court properly dismissed bystander claim against hospital and its staff since although parents observed the alleged malpractice they did not contemporaneously associate it with an injury to their baby. 31-2-2370 Claudia Ruiz et al. v. Toys “R” Us et al., App. Div. (11 pp.) In slip-and-fall suit, plaintiffs’ undisputed proofs that defendant knew that its roof leaked when it rained was sufficient to sustain plaintiff’s burden of showing that defendant had knowledge of the hazardous condition that caused plaintiff to fall, and trial court erroneously imposed to high a burden by instructing jury that defendant must have had knowledge of the specific puddle on which plaintiff slipped. TAXATION 35-2-2371 Tina Schiller Trust for the Benefit of Sue Siegelbaum et al. v. Director, Division of Taxation, App. Div. (11 pp.) Gain realized by non-resident partnership at the time corporation in which it owned stock was liquidated was not subject to the Gross Income Tax Act, N.J.S.A. 54A:1-2, since the gain was not the result of work done or services rendered by the partnership. CRIMINAL LAW AND PROCEDURE 14-2-2372 State v. James Baker, App. Div. (34 pp.) Where trial court erroneously sentenced defendant who was convicted of kidnapping and sexual assault because it did not realize that the sentencing statute had been amended, defendant’s rights under the due process and double jeopardy clauses of the state and federal constitutions were not violated by court’s resentencing him after he had served more than one year of the sentence even though defense counsel originally advised defendant to reject a plea bargain because he was not aware of the amendment. 14-2-2373 State v. Edward Bohuk, App. Div. (18 pp.) Police officer did not violate defendant’s Miranda rights by stating in his presence that the car in which he was found had been reported stolen, since officer had just been told that the car was stolen and did not anticipate that defendant would respond to the statement. 14-2-2374 State v. J.H., App. Div. (7 pp.) In trial for sexual abuse of a child, trial court properly permitted a friend of the victim to testify under Evid. R. 55 about defendant’s similar attacks on her, since the testimony was probative of defendant’s motive, opportunity and intentions with regard to victim. 14-2-2375 State v. Tanya Johnson, App. Div. (4 pp.) Trial court should have dismissed weapon-possession charge where no evidence was presented connecting the box-cutter defendant possessed with any unlawful act or plan to commit such an act. 14-3-2376 State v. Willie Malone, Law Div. (5 pp.) Welfare worker’s convictions for theft, misapplication of entrusted property, falsifying public records and forgery were merged into conviction for official misconduct, since the evidence supporting the other substantive charges provided the basis for the official misconduct charge. [Approved for publication Jan. 20, 1994.] 14-2-2377 State v. Ronald Morris, App. Div. (6 pp.) Trial court acted within its discretion by revoking probation of defendant who failed to physically report to probation department and who did not report his change of address, despite defendant’s argument that he was unable to meet these requirements because of his new job as a truck driver. 14-2-2378 State v. Nicholas Salerno, App. Div. (7 pp.) Where state appealed order that suppressed evidence on the ground that judge who approved search warrant over the telephone did not comply with the procedural requirements of R. 3:5-3(b) and 3:5- 5(b) — such as making an express finding of exigent circumstances — remand was ordered to establish a more complete record on the issue. 14-2-2379 State v. Audley Spott, App. Div. (7 pp.) Trial court properly concluded that child sexual-assault victim’s statements to (1) her 12-year old cousin and (2) a police officer who asked open-ended questions that were not suggestive, were admissible under Evid. R. 63(33), since the statements were made under circumstances suggesting that they were trustworthy. 14-2-2380 State v. David Whitted, App. Div. (11 pp.) Trial court properly denied murder defendant’s request for a passion/provocation instruction, since defendant’s version of events — that victim attacked him and he responded by wrestling with victim, hitting him with a stick and covering his head with a plastic bag as he lay motionless — indicated that defendant acted with moral depravity, not a loss of control due to passion. 14-2-2381 State v. Thomas Wolverton, App. Div. (6 pp.) Conviction for third-degree aggravated assault was reversed where verdict sheet failed to indicate the requisite intent, purposeful or knowing conduct, and the jury illustrated its confusion by also finding defendant guilty of reckless assault.

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