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VOL. 2 NO. 107 DECISIONS RELEASED JUNE 15, 1994 AUTOMOBILES – NEGLIGENCE 05-2-3515 Janet Estrella v. Terezia Freidinger, et al., App. Div. (16 pp.) Where drivers and passengers were injured in an automobile accident involving a truck driven by employee of defendant Coca Cola Bottling Co. of New York, Inc., in a consolidated action, trial court properly found defendant automobile driver 100 percent negligent and denied new trial motions of plaintiffs Estrellas and Freidinger, since the decisions were based on credible evidence. ENVIRONMENT – GOVERNMENT 17-2-3516 L.J. & M. LaPlace v. Envtl. Claims Adm’r of the New Jersey Dep’t of Envtl. Protection and Energy, and the City of Garfield, Where state Spill Compensation Fund dismissed city’s damage claim filed on June 23, 1986, on grounds that it was filed four years after damage was discovered, not within one year as required by N.J.S.A. 58:10-23.11k, fund administrator properly vacated the earlier decision, since the city’s application was filed within a year after the city discovered that its drinking water was contaminated. INSURANCE – AUTOMOBILES 23-2-3517 Theresa Aubrey v. The Harleysville Ins. Cos., App. Div. (10 pp.) Where plaintiff, who was injured while driving a leased vehicle, was covered by the lessor’s UIM insurance policy provision containing a “step-down” clause, in addition to her own insurance, trial court erred in holding that the step-down clause precluded plaintiff from UIM coverage under the lessor’s policy’s, since the step-down clause did not apply because it only pertained to customers with no insurance or inadequate coverage. PHYSICIAN/PATIENT – NEGLIGENCE 29-2-3518 Charles Holmes, Jr. v. Dr. Madhu Goyal and Muhlenberg Regional Medical Center, et al., App. Div. (8 pp.) Where on two separate emergency-room visits, plaintiff’s severe abdominal pain was diagnosed as food poisoning but really was a ruptured appendix, trial court properly found one of the two doctors involved negligent, since she did not perform all the tests necessary for a proper diagnosis. PUBLIC ASSISTANCE 45-2-3519 Laura Maisonet v. New Jersey Dep’t of Human Servs., Div. of Family Dev., App. Div. (11 pp.) Where tenant, who received rental allowance by doing janitorial services, did not report allowance as income on food-stamp application, administrative law judge erred in holding that the allowance was income, since it is an “in-kind benefit” and not includable as income, under 7 C.F.R. Section 273.9(c)(1)(iv)(A). WRONGFUL DEATH – AUTOMOBILES – EVIDENCE 40-2-3520 Judith Rollis, et al. v. Jose A. Camacho and Birk Paint Mfr., App. Div. (26 pp. incl. dissent) Where plaintiff’s husband was killed in an automobile accident involving defendant, trial court properly admitted into evidence that decedent’s daughter the day before the accident had accused him of sexually molesting her, since the prejudice of the admission did not substantially outweigh the probative value, as to why the decedent may have been driving in the manner described. CRIMINAL LAW AND PROCEDURE 14-2-3521 State v. Frank Bundy, App. Div. (12 pp.) Where defendant was convicted of aggravated-sexual assault, the case is remanded because prosecutor’s cross-examination of an alibi witness — about whether the witness told police about exculpatory evidence — was improper, since the questioning did not comply with the holding in State v. Silva, 131 N.J. 438 (1993.) 14-2-3522 State v. Anthony Hodnett, App. Div. (8 pp.) Where defendant was convicted of second-degree robbery, trial court properly instructed the jury on the use of force, since the evidence supported the jury’s finding that the intensity of the force used was enough to convert an attempted theft conviction into a robbery conviction. 14-1-3523 State v. Eileen Pierce, Supreme Court (59 pp. incl. concurrence) Where police officer who arrested a driver for operating a van with a suspended license, and then arrested a female passenger after finding cocaine in her jacket which was in the back of the van, Appellate Division erred in holding that the search was incident to a lawful arrest, since, because of the protection afforded under the New Jersey Constitution, the bright line rule in New York v. Belton, 453 U.S. 454 (1981), which allows a vehicle’s passenger compartment, including all containers, to be searched incident to a lawful arrest, shall not apply indiscriminately to searches incidental to warrantless arrests for motor-vehicle offenses. 14-2-3524 State v. Willie M. Platts, App. Div. (7 pp.) Where defendant, who did not testify at trial, was convicted for distributing a controlled dangerous substance, trial court properly admitted defendant’s mug shot into evidence, since the photo was clearly relevant, even though the jurors could identify it as a mug shot, despite tape covering the photo’s bottom.

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