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Vol. 2, No. 48 DECISIONS ISSUED MARCH 22, 1994 FAMILY LAW 20-2-2885 Kathleen Grimaldi v. Ronald Grimaldi, App. Div. (20 pp.) Where prior to custody hearing, children had resided with father and his girlfriend, and mother lived in Florida, trial court erred in awarding custody of children to mother in Florida, since judge’s decisions seemed to be based on judge’s negative reaction to father from probation reports that were pure hearsay, and trial judge’s decision did not focus on children’s best interests. INSURANCE – AUTOMOBILES 23-2-2886 Royal Ins. Co. v. Rutgers Casualty Ins. Co., App. Div. (13 pp.) Where employee, who was injured in an automobile accident while driving her employer’s car, which was insured by Royal Ins. Co., sued Royal and her own automobile insurance company, Rutgers Casualty Ins. Co., for uncompensated loss under the underinsured motorist provisions of both policies, trial court erred in holding that both insurers should pay 50 percent of net arbitration award and that Rutgers should reimburse Royal for one-half of arbitration proceedings cost, since employee was operating her employer’s car, and, from an analysis of respective policy terms, the Rutgers policy provided excess coverage over the Royal primary coverage. LAND USE 26-1-2887 State, by the Commissioner of Transportation v. Frederico R. Caoli, et al., Sup. Ct. (29 pp.)(Justice Handler) Where state condemned plaintiff’s property to construct a highway, trial court properly determined value of property, since in determining fair market value of condemned property as basis for just compensation, jury must consider a potential zoning change affecting use of property if court is satisfied that evidence demonstrates that such a change is reasonably probable. PRODUCT LIABILITY 32-2-2888 Michael Pepe III, et al. v. Kawasaki Motors Corp., U.S.A., et al., App. Div. (21 pp.) Where plaintiff while riding his Kawasaki jet ski was injured when he was struck by a boat, trial judge properly precluded plaintiffs’ counsel from naming three new liability experts, since plaintiffs’ attorney did not claim that previously named experts did not possess the expertise to establish a prima facie product-liability case. TORTS 36-2-2889 Gloria Colon v. Shongum Lake Property Owners Ass’n, et al., and Barry and Carey Berger, et al., App. Div. (6 pp.) Where plaintiff’s son drowned while swimming at a company outing and at trial jury denied damages for decedent’s alleged pain and suffering, trial judge’s statement (“ … and the money to be awarded for it. That’s all plaintiff’s burden … .”) was erroneous, since jury could clearly have gotten impression that plaintiff had burden of proving the amount of money that would compensate decedent for pain and suffering. 36-2-2890 Debbie Rivera v. Eugene P. Kenny and National Enquirer, Inc., App. Div. (23 pp.) Where plaintiff sued defendants for defamation for disparaging remarks that defendant Kenny, a state Superior Court judge on recall, made to her on matters unrelated to her appearance before him, trial court erred in dismissing complaint, since complaint set forth a claim upon which relief could be granted and readers could reasonably understand that portions of defendant-newspaper’s article referred to plaintiff. CRIMINAL LAW AND PROCEDURE 14-2-2891 State v. Patricia Dutkiewicz, App. Div. (5 pp.) Where defendant agreed to plead guilty to a DWI charge with the understanding that three other charges would be dismissed and defendant never gave a formal guilty plea, municipal court committed reversible error in not questioning whether defendant is making the plea “voluntarily with understanding of the nature of the charge and the consequences of the plea and that there is a factual basis for the plea,” pursuant to Rule 7:4-2(b). 14-2-2892 State v. Corey Gibson, App. Div. (6 pp.) Where victim had picked up a beer bottle to strike defendant who had taken his money, and jury could have inferred from evidence that defendant pulled out a knife in self-defense after victim had struck him and threatened him with a beer bottle, trial judge erred by failing failure to instruct jury about availability of self-defense to the menacing element of robbery, since evidence clearly supported such a charge. 14-2-2893 State v. Tracy Hamaduk, App. Div. (5 pp.) Where defendant — who was sentenced to no more than five-years imprisonment for distribution of cocaine within 1,000 feet of a school — violated her probation conditions, trial court erred (1) in figuring defendant’s parole ineligibility period at three years where it should have been two-and-a-half years, since based upon a balancing of the aggravating and mitigating factors, the parole ineligibility period may not exceed one-half of the sentence imposed, and (2) in considering the second aggravating factor, regarding the seriousness of harm to the victim, since it constituted double counting because the offense itself provided for punishment based upon harm to society. 14-2-2894 State v. Jonathan M. Handcox, App. Div. (5 pp.) Where defendant, who was convicted of unlawful possession of a firearm, claimed that he picked up a rifle he had found in an alley to inspect it, and put the weapon under his coat upon seeing police officers to avoid any trouble, trial court’s failure to define “possession” constituted reversible error, since a defendant is entitled to a jury charge that incorporates the defendant’s version of the facts. 14-2-2895 State v. Aku Muhammed Wadood, App. Div. (8 pp.) Where defendant was found guilty, among other things, of first- degree sexual assault and terroristic threats, prosecutor’s remarks during summation — telling jurors that they could be proud of a guilty verdict and asking them to send a message through their verdict — were improper but did not constitute reversible error, since evidence of defendant’s guilt was substantial, and prosecutor’s conduct was not so egregious that defendant was deprived of a fair trial.

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