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VOL. 2 NO. 74 DECISIONS RELEASED April 28, 1994 FAMILY LAW – PARENT/CHILD 20-1-3155 In the Matter of the Adoption of a Child by D.M.H. and S.H., Sup. Ct. (30 pp. incl. dissent) Where biological mother, with legal advice, gave up child for private adoption, and when the child was about a year old she filed for custody, after adoptive parents filed for adoption, appellate division properly held that biological mother had intentionally abandoned her child under the private-adoption statute, N.J.S.A. 9:3-48(c)(1), since she consented to and surrendered the child for adoption, and within a reasonable period of time did not take sufficient action to withdraw her consent. HEALTH 23-2-3156 In the Matter of the Commitment of G.G., T.H. and J.F., App. Div. (9 pp.) Where patients’ involuntary civil commitment was extended because of alleged unavailability of appropriate placement with a community mental health agency, and the patients otherwise were eligible for discharge and had permanent living arrangements outside the hospital, hospital erred in extending patients’ commitment, since hospital-treatment team’s failure to arrange for follow-up care before a commitment hearing did not constitute the “unavailability of an appropriate placement,” under R. 4:74-7(h)(2). LANDLORD/TENANT 27-2-3157 Woodlake Apartments v. Michael O’Brien and Theresa O’Brien, App. Div. (3 pp.) Where landlord filed complaint to evict tenants for disturbing the peace, and parties agreed to postpone hearing for defendants to explore alternative living conditions, and defendant Theresa O’Brien did not pay her portion of rent into court as agreed, which prompted landlord to apply to have tenants evicted for nonpayment of rent, Special Civil Part erred in evicting tenants for nonpayment, since a landlord cannot commence a disposess action on one prescribed ground and then pursue eviction for another reason without leave of court. LAND USE 26-2-3158 Natick Third Realty Corp. v. Parsippany-Troy Hills Township, et al., Planning Bd. of Parsippany-Troy Hills Township, et al., App. Div. (7 pp.) Where plaintiff/realty firm had applied to planning board for a minor subdivision because 15 acres were zoned for residential use and, without notifying the plaintiff, the planning board amended a preexisting zoning ordinance to make plaintiff’s proposed development a non-conforming use, trial court properly held that the amendment was proper, since defendant was not under any constitutional obligation to supply any notice in addition to the formal, statutory notice, which was provided. 26-2-3159 Richard C. Swarbrick and Edward Brazina v. Planning Bd. of the Township of Piscataway and Bell Communications Research, Inc., App. Div. (4 pp.) Where plaintiffs, who owned property adjacent to facility owned by defendant Bell Communications, opposed granting of variances to Bell Communications regarding the height and percentage of roof area coverage at company site, trial court properly determined that planning board had the authority to grant height variance, despite N.J.S.A. 40:55D-70d, which permitted only a zoning board of adjustment to grant such a variance, since planning board approved variance before effective date of statute. PUBLIC EMPLOYEES 33-2-3160 PBA Local 49, Bergen County Police Dep’t v. County of Bergen, App. Div. (4 pp.) Where arbitrator determined that Bergen County violated its collective bargaining agreement with the PBA local by withholding taxes from PBA members’ clothing allowance, chancery judge properly vacated arbitrator’s finding, since (1) the arbitrator (who stated that the county could not change the payment practice without a specific IRS ruling) never made a definitive interpretation of IRS regulation 1:62-2, which requires the taxes to be withheld, and (2) the arbitrator’s approach did not agree with settled law or advance public policy. CRIMINAL LAW AND PROCEDURE 14-2-3161 State v. John Artuso, App. Div. (4 pp.) Where defendant — who while driving his automobile was pulled over for not having a valid motor-vehicle sticker — produced a valid registration and driver’s license, but his insurance identification card had expired four days earlier, and police officer while searching the console for a valid insurance card found marijuana, trial court erred in denying defendant’s suppression motion, since once defendant produced the driver’s license and registration, there was no articulable reason for police officer to search the console. 14-2-3162 State v. Kathleen Cummins, App. Div. (4 pp.) Where defendant (who was taking prescription medication, such as Ativan, Lithium, Loxitane and Prozac) was convicted of driving under the influence of drugs, under N.J.S.A. 39:4-50(a), municipal court properly convicted her, since facts demonstrated beyond a reasonable doubt that defendant operated her vehicle under the influence of drugs that produced a narcotic-like effect, as set forth in State v. Tamburro, 68 N.J. 414 (1975). 14-2-3163 State v. Peter J. Dennis, App. Div. (10 pp.) Where defendant was convicted of murder for stabbing a co-worker, trial court erred in charging jury regarding passion/provocation where judge stated that “… mere words alone or looks or gestures, no matter how threatening or insulting are never…provocation,” since the holding in State v. Mauricio, 117 N.J. 402 (1990), rendered the charge improper. 14-2-3164 State v. Donald Tipton, App. Div. (31 pp.) Where defendant was convicted of murder, trial court properly conducted a voir dire of the prospective jurors by asking them whether they could acquit defendant if they believed he was guilty but did not commit the murder in New Jersey, since (1) with jurisdiction as an element of a criminal violation of this state’s law against causing the death of a human being, the question was properly submitted to potential jurors, and (2) defense counsel did not object timely to the juror questioning. 14-2-3165 State v. Edward Woloson, App. Div. (6 pp.) Where defendant was convicted of violating a temporary restraining order in effect to protect his ex-wife when he sent an Easter card to his children, who lived with her, trial court erred in convicting defendant, since there no evidence that defendant knowingly violated the order, or that defendant’s purpose in sending the card was to harass his ex-wife.

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