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Vol. 2, No. 55 DECISIONS ISSUED MARCH 31, 1994 FAMILY LAW 20-2-2970 C.O. v. P.V., App. Div. (3 pp.) Where husband violated a domestic violence restraining order that he had consented to enter into with wife, trial court properly dismissed husband’s claim that if a hearing on the merits was held he could prove his innocence, since a restraining order is a final decision and a motion for reconsideration must be filed within 10 days from receipt of order. HEALTH – GOVERNMENT 22-2-2971 Monmouth Medical Center v. State Dept. of Health, et al., App. Div. (26 pp.) Where department adopted regulations saying it would not process certificate of need applications for additional cardiac surgery services until studies relating to the need for those services were completed, but still processed applications for existing facility expansions, board properly adopted regulations, since they were clearly within the scope of its authority. LANDLORD/TENANT 27-2-2972 A.S. Goldstein Co. v. Bloomfield Plaza Assocs., et al., App. Div. (11 pp.) Where plaintiff-real estate broker allegedly negotiated a lease between defendant-strip mall owner and video store, trial court’s holding that plaintiff was not entitled to a commission was reversed and remanded since (1) letter of intent between defendant and video store could constitute a lease agreement between parties, and (2) real estate broker statute of frauds, N.J.S.A. 25:1-9, is inapplicable to agreements for rental commissions. MUNICIPAL LAW – CONSTITUTIONAL LAW 30-1-2973 C.I.C. Corp., et al. v. Township of East Brunswick, Sup. Ct. (13 pp. incl. App. Div. decision which was affirmed) Where township enacted a ban on cigarette vending machines to protect the health of minors, Appellate Division properly held that the ban was valid, since (1) township had power to enact ordinance to protect citizens’ health and safety, and (2) fact that state had a broad licensing and tax scheme does not preempt municipalities from regulating effects of licenses to protect citizens’ health. NEGLIGENCE – TORTS 31-2-2974 James C. Artale v. Joseph Algieri and Frederick Algieri and Shirley Algieri, App. Div. (7 pp.) Where jury found defendant 60 percent negligent for injuring plaintiff during an altercation and plaintiff was found 40 percent negligent, trial court erred in failing to instruct jury properly about relation- ship between intentional conduct and comparative negligence, since jury must consider both negligent and intentional conduct to properly allocate fault. PHYSICIAN/PATIENT – NEGLIGENCE 29-2-2975 Frank G. Kisselbach, et al. v. County of Camden, Lakeland Hospital, et al. v. Coordinated Health Services of New Jersey, P.A., et al., App. Div. (14 pp.) Where complaint filed by plaintiff, who was son of decedent, was dismissed for late filing against defendants, trial court erred in holding that although decedent had given son power-of-attorney, son could have filed complaint on behalf of decedent when decedent was still alive, since power-of-attorney was not effective when the decedent became incompetent, because insanity of principal revokes authority of his agent. PUBLIC EMPLOYEES 33-1-2976 In the Matter of Anastasia M. Vey, Police Officer of N. Wildwood City. Sup. Ct. (15 pp. incl. dissent) Where city refused to accept plaintiff-candidate as a police officer because of a negative psychological evaluation, and candidate had another independent psychological evaluation which showed that she would make a good police officer, Merit System Board properly removed candidate’s name from eligibility list, since board’s decision was based on psychological test which found that candidate was, among other things, impulsive and manipulative, which are qualities unfit for a police officer. WORKERS’ COMPENSATION 39-2-2977 James Damon v. James Patitucci t/a Malaga Stud Farm, App. Div. (8 pp.) Where plaintiff-horse trainer was assaulted while returning to his dorm after caring for defendant’s horses, workers’ compensation judge erred in dismissing plaintiff’s claim, since plaintiff, who had to be at the racetrack around-the-clock to care for defendant’s horses, was injured in direct performance of his assigned duties. CRIMINAL LAW AND PROCEDURE 14-2-2978 State v. William Bragg, App. Div. (4 pp.) Where defendant-juvenile was indicted as an adult for possession of cocaine and heroin, Family Part properly waived jurisdiction, since considering defendant’s prior offenses involving controlled dangerous substances and fact that he was on probation at time of arrest, sufficient grounds existed to support Family Part’s determination that need to protect the public outweighed defendant’s opportunity for rehabilitation. 14-2-2979 State v. Frank Millett, App. Div. (54 pp.) Where defendant was convicted of armed robbery and purposeful or knowing murder, and defendant beat another victim to death in an unrelated, subsequent Pennsylvania case, prosecutor’s conduct was highly prejudicial when he tried to bring in evidence of facts about defendant’s other case against trial judge’s ruling, when arguing an inference that he knew was not supported by the facts, since defendant could only rebut inference by telling jury about his other crimes. 14-2-2980 State v. Roberto Ramos, App. Div. (26 pp.) Where police officer on Route 80 pulled over defendant-car driver, who did not own car, for speeding, and during lawful search cocaine was found in car trunk, prosecutor’s statement during summation that Route 80 was a main artery to transport drugs from New York City to points west did not prejudice defendant, since prosecutor was allowed to sum up state’s case forcefully as long as his argument was confined to facts in evidence or upon reasonable inferences drawn from the evidence. 14-2-2981 State v. Larry Woods and Tyrick Harris, App. Div. (9 pp.) Where defendants during gas station robbery shot attendant and attendant later saw defendants when police officers brought them to attendant’s hospital room, trial court erred in excluding out-of- court identification of defendants, since the procedure was not impermissibly suggestive because (1) attendant told police that he could identify gas station robbers, and (2) defendants were brought separately into attendant’s hospital room and were immediately identified.

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