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VOL. 2, NO. 115 DECISIONS RELEASED JUNE 27, 1994 EVIDENCE – TORTS 36-2-3612 Dennis Jeffers and Elaine Jeffers v. Sam Goody, et al., App. Div. (19 pp. ) Where plaintiff shopper was injured when he walked into a plate glass window at defendant store, trial court erred in not letting in portions of store manager’s videotaped deposition indicating that before plaintiff’s accident the unmarked glass panels were a danger to customers, since the testimony was admissible under R. 701, which allows a non-expert to give his or her opinion on matters of common knowledge and observation. INSURANCE 23-2-3613 Angel Snyder v. Charles D. Karpel and Charles H. Williams, CSC Ins. Servs., et al., App. Div. (4 pp.) Where defendant Williams, who did not own a vehicle, sued his live-in girlfriend’s insurer for excess coverage, after he struck plaintiff’s vehicle while driving defendant Karpel’s truck, trial court properly dismissed plaintiff’s complaint, since the policy clearly did not cover Williams, since he was not related to his girlfriend by “blood, marriage or adoption.” LANDLORD/TENANT 27-2-3614 JVC, Inc. v. Canal Realty Co., et al., App. Div. (9 pp.) Where tenant filed a complaint seeking a lease reformation on the grounds that its rent was in excess of the reasonable rental value and could be construed as giving the landlord an undisclosed interest in the tenant’s liquor license, in violation of N.J.S.A. 33:1-12.31, trial court correctly dismissed plaintiff’s complaint seeking a private cause of action under the alcoholic beverage control laws, but on the wrong grounds; the proper grounds were that no factual issues existed on the question of reformation. PUBLIC EMPLOYEES 33-2-3615 Rita M. Eberhard v. Bd. of Educ. of the Borough of Bergenfield, Bergen County, App. Div. (10 pp.) Where employee claimed that her tenure rights were violated when the board eliminated her position and created two new positions to take over her responsibilities, board erred in denying her motion to supplement the record, since the employee did not have the opportunity to compare the two new positions with her old position, which is part of a test to determine whether the elimination of her position was proper under N.J.S.A. 18A:28-9. WORKERS’ COMPENSATION 39-2-3616 Donald W. Hookway v. State Dep’t of Transp., App. Div. (5 pp.) Where employee was injured in an automobile accident while driving a state truck on his way back to the yard after attending a work-sanctioned retirement luncheon, workers’ compensation judge erred in dismissing employee’s complaint on grounds that he failed to prove that the accident happened during activity related to his work, since a usual job responsibility was to return the truck to the yard every day. CRIMINAL LAW AND PROCEDURE 14-2-3617 State v. Mark Davis, App. Div. (14 pp.) [See related case no. 3620.] Where defendant was convicted of two armed-robbery counts, trial court erred in talking about Jack Ruby’s 1963 shooting of Lee Harvey Oswald as an example of proof beyond a reasonable doubt, but this was not reversible error since, during his principal charge, the judge correctly explained the proper standard of proof. 14-2-3618 State v. Adrian Dawson, App. Div. (11 pp.) Where defendant was convicted of second-degree conspiracy to commit aggravated assault, trial court properly admitted testimony relating to three out-of-court statements, since all three were admissible under N.J.R.E. 803(c)(3), which allows admission of hearsay statements of intent to explain or prove subsequent acts of the person who made the remarks. 14-1-3619 State v. Harry De Luzio, Supreme Ct. (41 pp.) Where defendants, who operated a pyramid scheme, were convicted of conspiracy and promoting gambling, appellate court properly reversed the defendant’s gambling conviction, since a pyramid scheme is not a “lottery” within the meaning of the statute, and, therefore, not a gambling offense. 14-2-3620 State v. Leroy Lucky, App. Div. (18 pp.) [See related case no. 3617.] Where defendant was convicted of two armed-robbery counts, trial court properly admitted the victim’s identification of defendant at police headquarters into evidence, since (1) the victim picked a photograph of defendant out of 10 photographs, and (2) the victim was certain of defendant’s identity, since the defendant stood in front of the victim with a gun pointed at the victim during the robbery. 14-2-3621 State v. James Porter, App. Div. (6 pp.) Where defendant was convicted of murder, trial court’s error in instructing the jury to consider passion/provocation manslaughter only if the jury found defendant not guilty of murder was reversible error, since the state had the burden of disproving passion/provocation beyond a reasonable doubt. 14-2-3622 State v. Stilo Excavating, Inc., App. Div. (5 pp.) Where defendant was convicted of failure to register his commercial vehicle, under N.J.S.A. 39:3-20, trial court properly rejected defendant’s claim that the five-percent weight deviation allowance defense permitted in N.J.S.A. 39:3-84.3f was also applicable to N.J.S.A. 39:3-20, since it is only a valid defense to a violation of weight limitations imposed under N.J.S.A. 39:3-84b. 14-2-3623 State v. Petroskie Fitzgerald Williams, App. Div. (5 pp.) Where defendant was convicted of first-degree robbery and second-degree aggravated assault, trial judge erred in not merging count two into count one, since the aggravated assault elevated robbery to a first-degree crime.

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