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Vol. 2, No. 82 DECISIONS ISSUED MAY 10, 1994 TAXATION 35-2-3243 Comfortably Yours, Inc. v. Dir., Div. of Taxation, App. Div. (3 pp.) Where a tax payment by a retail mail-order sales company — on the cost of producing and distributing catalogs at plaintiff’s direction by out-of-state printing contractors who shipped the catalogs to New Jersey residents — was deemed deficient, tax court properly held that production and distribution of its promotional catalogs constituted a use under N.J.S.A. 54:32B-2(h), since it is a reasonable interpretation of the state Sales and Use Tax Act, N.J.S.A. 54:32B-1to -29, and is supported by case law and commentary. [Approved for publication May 6, 1994.] ADMINISTRATIVE LAW AND PROCEDURE – GOVERNMENT 01-2-3244 In the Matter of the Petitions of New Jersey Bell Telephone Co. for Approval of Mun. Consent Ordinances, App. Div. (3 pp.) Where petitioner, New Jersey Bell, sought approval for 20 municipal consent ordinances authorizing it to install and maintain equipment and facilities along public roads and rights-of-way, and state Cable Television Association argued that the ordinances were so broad that they permitted the applicant to provide cable- television programming, state Board of Regulatory Commissioners correctly held that the association’s claims were not ripe for review, and that under federal law, the applicant is not allowed to provide cable-television programming. ARBITRATION AND MEDIATION – LANDLORD/TENANT 03-2-3245 Raritan Plaza I Assocs., L.P. v. Cushman & Wakefield, App. Div. (10 pp.) Where plaintiff landlord — who hired defendant as its exclusive broker to lease office space — leased space directly to a tenant, which broker claimed it was entitled to a commission on, and parties arbitrated matter and attempted to arbitrate a subsequent disagreement, trial court erred in denying landlord’s request to stay the second arbitration proceeding, and the matter is remanded for a trial court to determine whether the second arbitration is barred by the entire-controversy doctrine, since this issue is uniquely within a court’s province to decide. DEBTOR/CREDITOR 15-2-3246 Farmingdale Realty Assocs., et al. v. Wallace R. Davidson and Lester J. Davidson v. Donald Fingerman and Gerald Shulman, App. Div. (10 pp.) Where Fingerman and Shulman’s company defaulted on loans that they had personally guarantied, then Shulman reached an agreement with the creditors and obtained a judgment against Fingerman for his contribution share, trial court properly granted Shulman’s motions for summary judgment on Fingerman’s contribution, since there were no factual issues in dispute. FAMILY LAW – REAL ESTATE – CONTRACTS 20-2-3247 William N. Stahl v. Elwell & Crane, and Harris, Dickson, Buermann, Camp, Ashenfelter and Boyd, et al., App. Div. (11 pp.) Where husband, who had first option under divorce agreement, purchased the marital home, and real estate agent, who found a buyer for the house, obtained a judgment compelling husband to pay commission, and husband sued his law firm alleging that its malpractice was the proximate cause of him having to pay the real estate commission, trial court properly dismissed husband’s malpractice claim when granting the law firm’s motion for summary judgment, since there were no factual issues in dispute. GOVERNMENT 21-2-3248 Lee Bond, Chairman E. Orange Parking Auth. v. Malcolm Taylor, Vice Chairman, App. Div. (3 pp.) Where East Orange mayor tried to veto the city council’s appointment of the city parking authority commissioner, chancery judge properly held that the mayor has no veto power, under N.J.S.A. 40:11A-4. LABOR AND EMPLOYMENT 25-2-3249 Morton Edelman v. Bd. of Review, App. Div. (4 pp.) Where plaintiff employee claimed that he was forced to leave his job because his employer wanted him to work more hours then permissible for him to retain his social security benefits, state Department of Labor and Industry Review Board properly denied employee’s unemployment benefits, since employer thought that employee was hired to work full-time. LABOR AND EMPLOYMENT – EDUCATION 16-2-3250 Robert I. Gannon and Mark Altschuler v. Montclair Kimberley Academy, App. Div. (8 pp.) Where plaintiff teacher was not rehired to teach at defendant school, trial court properly dismissed teacher’s complaint, since he did not present evidence that he had a new contract from the school, either under the employment manual or at common law. CRIMINAL LAW AND PROCEDURE 14-2-3251 State Dep’t of Law and Public Safety, Div. of Gaming Enforcement v. Adriel Gonzalez, App. Div. (31 pp. incl. dissent) Where defendant, a casino security officer — who pled guilty to conspiracy and drug distribution within 1,000 feet of a school –testified at Casino Control Commission hearings that he was innocent, commission erred in holding two separate hearings about defendant’s casino-employee license revocation due to criminal guilty plea, since someone who has pled guilty to committing a criminal offense may not seek in a different forum to deny commission of the acts previously admitted. 14-2-3252 State v. Dwayne G. Hughes, App. Div. (5 pp.) Where, during trial testimony, police officer mentioned statements by anonymous people which implicated defendant in drug activity, trial court properly held that police officer’s statements did not taint jury, since trial judge’s curative instructions removed any prejudice. 14-2-3253 State v. Leon King, App. Div. (6 pp.) Where defendant, who pled guilty to drug possession, placed his hands in his pockets and two co-defendants ran when they saw police officers get out of an unmarked-police van, and during a pat-down search of defendant police officer found narcotics, trial court properly denied the defendant’s motion to suppress, since defendant and co-defendants’ conduct witnessed by trained narcotics officers warranted a reasonable belief that defendant and co-defendants were involved in a drug transaction, and pat-down search was conducted pursuant to a lawful arrest. 14-2-3254 State v. Allen M. Kunz, App. Div. (6 pp.) Where defendant, who was found guilty of felony murder, claimed ineffective assistance of counsel because his attorney failed to follow a defense strategy including the belief that the victim had received death threats, trial court properly held that defense counsel’s tactical decisions did not fall below an objective standard of reasonableness, since it was disproven that the victim had received death threats, and as a result the defendant’s credibility at trial would have been threatened. 14-2-3255 State v. Reginald Mitchell, App. Div. (5 pp.) Where defendant was convicted of two aggravated assault charges against police officers, trial court erred in sentencing the defendant, since the sentences in the conviction judgment were contrary to sentences the judge imposed on the record. 14-2-3256 State v John Worthy, et al., App. Div. (10 pp.) Where, under the direction of an investigator who failed to get prosecutor’s wiretap permission because he thought it was unnecessary for out-of-state calls, informant taped conversations that he had with defendant about defendant’s drug-trafficking business, trial court properly suppressed the tapes of the other state and New Jersey, since (1) N.J.S.A. 2A:156A-4c requires prosecutorial consent even where the wire or oral communication which is intercepted originates outside of this state, and (2) other state tapes tainted the New Jersey tapes.

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