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Vol. 2, No. 5 DECISIONS ISSUED JANUARY 10, 1994 ENVIRONMENT – LAND USE 17-2-2279 M. Alfieri Co., Inc. v. State of N.J., Department of Environmental Protection and Energy, App. Div. (20 pp.) N.J.S.A. 13:9B-4d(1), which exempts from the Freshwater Wetlands Protection Act projects that obtained site plan approval under the Municipal Land Use Law (MLUL) prior to the effective date of the act, does not apply to site plan approvals granted under zoning laws that were in effect prior to enactment of the MLUL, including the Municipal Planning Act. FAMILY LAW 20-2-2280 Maria Felix v. Amadeu Felix, App. Div. (15 pp.) In divorce suit, trial court erred by concluding that defendant’s refusal to settle issues concerning equitable distribution and alimony constituted bad faith justifying an award of counsel fees, since defendant’s position was not unreasonable and he had a right to argue his case at trial. FAMILY LAW – JURISDICTION 20-2-2281 Liang-Fang Chao v. Horng-Huei Kuo, App. Div. (3 pp.) Trial court properly concluded that permanent resident alien who had lived in New Jersey since 1989 for the purpose of pursuing a graduate degree is a domiciliary such that the court had jurisdiction to hear her divorce complaint. INSURANCE – AUTOMOBILES 23-2-2282 Julianne Aurichio v. Guitana LaRose et al., App. Div. (9 pp.) Plaintiff who suffered injuries in a car accident satisfied the verbal threshold by presenting doctor’s reports indicating that (1) she suffered from neck and back spasms, spinal lesions, and hyporeflexic patella reflexes and (2) her injuries limited her ability to care for her baby and exercise. NEGLIGENCE – EVIDENCE 31-2-2283 Charlotte Glowacki v. Underwood Memorial Hospital, App. Div. (20 pp.) In negligence damages trial, plaintiff’s expert testimony that the jury should calculate plaintiff’s future lost wages based on standard assumptions about inflation and the present value of money did not constitute an inadmissible net opinion. PARENT/CHILD – CIVIL PROCEDURE 28-2-2284 In the Matter of the Estate of Michael L. Spano, App. Div. (9 pp.) Although order was entered upon decedent’s death vacating his estate’s obligation to pay support to the mother of his daughter, daughter was not barred by res judicata or collateral estoppel from seeking support from decedent’s estate, since child was neither a party to the prior proceeding nor was she in privity with her mother. CRIMINAL LAW AND PROCEDURE 14-2-2285 State v. Frederick Bryant, App. Div. (9 pp.) Trial court properly concluded that charges for robbery of a florist shop and for three robberies of a gas station should be tried together, since the evidence relating to each robbery — such as the victims’ identification of defendant’s weapon and car — would have been admissible at each trial if the offenses had been tried separately. 14-2-2286 State v. Kenneth Daniels, App. Div. (5 pp.) Conviction for aggravated assault of a police officer under N.J.S.A. 2C:12- 1b(5)(a) does not merge with conviction for resisting arrest under N.J.S.A. 2C:29-2a, since the statutes are intended to protect distinct interests. 14-2-2287 State v. Christopher Elliot et al., App. Div. (26 pp.) Although trial court erred by instructing jury that the passion/provocation defense could reduce aggravated manslaughter to simple manslaughter, the error was harmless since the jury convicted defendants of reckless manslaughter, which was listed before passion/provocation manslaughter on the verdict sheet, indicating that they never reached the passion/provocation issue. 14-2-2288 State v. Mark Gammon, App. Div. (5 pp.) State provided sufficient evidence that defendant took a substantial step to carry out a conspiracy to commit murder by showing that he (1) provided a co-conspirator with information about the identity and whereabouts of his former fiance and (2) met with an undercover investigator in order to negotiate an agreement to have her killed. 14-2-2289 State v. Rishabhdeo Gangarita, App. Div. (19 pp.) Where for strategic reasons defense counsel did not want defendant to be charged with sexual assault as a lesser-included offense of aggravated sexual assault, trial court’s failure to charge the lesser-included offense did not constitute error. 14-2-2290 State v. Cleo Lee, App. Div. (5 pp.) Trial court properly concluded that traffic stop of a car that crossed partially into a vacant lane for less than a second in order to pass a tractor trailer was based on a pretext, and drugs found during consent search of car’s occupants were properly suppressed. 14-2-2291 State v. Casper Morelli et al., App. Div. (31 pp.) Trial court properly concluded that the defense of due process entrapment did not apply where police officers were charged with accepting bribes following an investigation in which the state cooperated with an owner of illegal gambling machines by permitting owner to expand his activities, keep his profits and avoid prosecution, since the state was justified in targeting the officers and it did not initiate, direct or control the commission of the crime. 14-2-2292 State v. Herman Norwood, App. Div. (23 pp.) Robbery conviction was reversed where trial court failed to instruct the jury that defendant’s use of force or infliction of injury had to be knowing, not merely reckless. 14-2-2293 State v. Chandra Steaton, App. Div. (7 pp.) Where prosecutor in joint trial violated co-defendant’s right to remain silent by cross-examining him about his failure to claim while in police custody that drugs found in defendant Steaton’s bedroom were the sole property of her boyfriend, her conviction was reversed.

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