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Vol. 2, No. 64 DECISIONS ISSUED APRIL 14, 1994 ATTORNEY/CLIENT 04-2-3060 Joan Moschella v. Royal Ins. Co.; Chiropractor Daniel J. Dalton v. Sunil Thomas, et al., App. Div. (3 pp.) Although chiropractor’s complaint was properly dismissed as frivolous, trial court should not have assessed attorneys’ fees and costs against plaintiffs under N.J.S.A. 2A:15-59.1 without considering whether plaintiffs relied in good faith on their counsel’s advice, since if they did, their conduct would not be sanctionable. CIVIL PROCEDURE 07-2-3061 Meryl Feinsod v. Janeen H. Noon, App. Div. (5 pp.) Where trial court dismissed plaintiff’s complaint with prejudice for failure to answer defendant’s interrogatories, and second complaint was dismissed as barred by first dismissal, trial court properly denied plaintiff’s motion under R. 4:50 to vacate second dismissal, since fact that dismissal proceeding fails to comply with R. 4:23-5(a)(2) procedural requirements does not automatically entitle a party to have dismissal order vacated. LAND USE 26-2-3062 Steven Nickels, et al., v. The City of Wildwood, App. Div. (4 pp.) Where city zoning ordinance regulated development on ocean side of the boardwalk, zoning board erred in allowing pier owner to expand its pier — a non-conforming use — since only zoning board has authority to expand a nonconforming use and only by granting a variance. NEGLIGENCE – CONTRACTS 31-2-3063 Nadirah Shareef v. Clifton Self-Storage, Inc., et al., App. Div. (4 pp.) Where plaintiff was injured when she fell in a storage unit rented from the defendant and was not discovered for 43 hours even though the door was open and her car was parked in front of the unit, trial court erred in dismissing plaintiff’s complaint, since the storage rental agreement did not relieve defendants of liability for personal injuries caused by their negligent failure to patrol the facility. CRIMINAL LAW AND PROCEDURE 14-2-3064 State v. James A. Costabile, App. Div. (7 pp.) Where defendant was convicted of possession of a handgun with a purpose to use it unlawfully against victim, and during grand jury hearing prosecutor cross-examined defendant about his invitation to testify at the hearing, this questioning denied the defendant his right to remain silent and constituted reversible error. 14-2-3065 State v. Ronald C. Kent, App. Div. (4 pp.) Although defendant’s expert testified that the simulator solution used to verify the breathalyzer’s accuracy could become depleted from repeated use and as a result might give an elevated blood alcohol content, defendant was properly convicted of driving while intoxicated, since state’s expert testified that his log showed that because the solution had not been used before, it could not have been depleted. 14-2-3066 State v. Clarence Moore, App. Div. (12 pp.) Where prosecutor made remarks to jury that guilt beyond a reasonable doubt meant that the “odds are” defendant did it, trial court properly denied defendant’s motion for post-conviction relief, since trial court clearly instructed the jury on the state’s burden of proof, which eliminated any confusion that the prosecutor’s remarks may have been caused. 14-2-3067 State v. Isabel Cruz Torres, App. Div. (5 pp.) Trial court improperly excluded testimony about declarations against interest by a third party that tended to show that defendant did not own the heroin seized in his apartment, on the ground that they were not made to a law enforcement official or other person of authority, since there is no requirement under Evid. R. 803(c)(25) that such declarations be made to a person acting under color of authority. 14-2-3068 State v. Fanuti Valentino, App. Div. (16 pp.) Where defendant was convicted of second-degree aggravated arson, and during state’s summation the jury saw a chart — not admitted in evidence — that compared statements of defendant’s accomplices, trial court’s curative instruction adequately overcame any adverse effect of the jury seeing the chart, and defense counsel did not ask for a mistrial or further instructions from the judge or raise anything to demonstrate that the jury failed to follow the court’s curative instruction. 14-2-3069 State v. Charles A. Willinger, App. Div. (3 pp.) Where during a proper motor vehicle stop, the arresting officer noticed a clear plastic bag inside defendant’s jacket containing what appeared to be marijuana, but officer had no expertise in controlled dangerous substances and state did not produce chemical analysis of the substance or other admissible evidence that the substance was marijuana, conviction reversed.

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