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VOL. 2, NO. 101 DECISIONS RELEASED JUNE 7, 1994 ATTORNEY/CLIENT – NEGLIGENCE 04-2-3455 La Bate & Conti, Inc. v. Old Hillcrest, Inc., et al., App. Div. (6 pp.) Where plaintiff supplier, who was owed money by defendant bar owners for bar equipment, sued bar owners’ corporate counsel for not putting aside money from sale of business to guarantee payment, trial court properly upheld supplier’s complaint, since counsel had a professional and contractual obligation to pay the supplier. CIVIL PROCEDURE – PHYSICIAN/PATIENT – NEGLIGENCE 07-02-3456 Donald J. Dario and Judith Dario v. Medical Eng’g Corp., et al., App. Div. (6 pp.) Where plaintiffs and medical clinic, both represented by counsel, settled a medical malpractice claim which plaintiffs refused to honor, trial court erred in determining it would not enforce the settlement based on mutuality of mistake — because the wife, not present during the negotiations, did not agree with the settlement — since the wife’s approval was not a condition to its enforcement. CONSTITUTIONAL LAW 10-2-3457 Louis Fanelli, et al. v. City of Trenton, et al., Supreme Ct. (23 pp.) Where a licensed food vendor challenged Trenton’s ordinance prohibiting pushcart peddling by and adjacent to restaurants that operate in a Special Improvement District, chancery court properly dismissed the vendor’s complaint, since the ordinance (1) furthers the SID policies authorized by N.J.S.A. 40:56-77(b)(2), and (2) does not violate state or federal equal-protection and due-process rights, because it is rationally related to the legitimate statutory objective of revitalizing downtown shopping districts. DEBTOR/CREDITOR – REAL ESTATE 15-2-3458 William A. Lyons and Margaret Silance Lyons v. Robert E. Lyons and Bernadette F. Lyons, App. Div. (4 pp.) Where plaintiff mortgagors took out a mortgage in favor of defendants, trial court properly rescinded the mortgage, since the judge, based on credible evidence, found that the defendants had fraudulently induced the plaintiffs into executing the mortgage. INSURANCE – AUTOMOBILES 23-2-3459 Salvatore Campo v. Andrew J. Pavlock, App. Div. (4 pp.) Where plaintiff injured his back in an automobile accident, trial court properly dismissed plaintiff’s complaint for failure to meet verbal- threshold criteria, since his injury did not seriously affect his life, and he failed to present objective- medical evidence. PUBLIC EMPLOYEES – TORTS 33-2-3460 William A. Holden and Carol Holden v. The Asbury Park Press, et al., App. Div. (4 pp.) Where plaintiff police officer while on duty slipped on ice in a privately owned parking lot, but which the public used, trial court erred in applying the “firefighters’ rule,” since the risk “was not inherent in nor an inevitable part” of the police officer’s duties. TORTS 36-3-3461 Victor J. Tryanowski, et al., v. Lodi Bd. of Ed. et al., Law Div. (16 pp.) Where plaintiff student, who pled guilty to criminal charges for hazing another student while at a football camp, wanted to sue defendant board for his attorneys fees in the criminal case under N.J.S.A. 59:9-5, the Tort Claims Act, trial judge denied student’s claim, since if a purported indemnification claim for legal fees is clearly against public policy in the case of intentional behavior, then it is equally against public policy for criminal acts. [Approved for publication June 7, 1994.] CRIMINAL LAW AND PROCEDURE 14-2-3462 State v. Dennis J. Harvey, App. Div. (7 pp.) Where defendant, who was charged with third-degree cocaine possession while on parole, wanted jail credit for days he spent in custody before sentencing but after a parole warrant was lodged, trial judge properly held that the balance of the pre-sentence confinement is a credit toward any term imposed on the parole, since once a parole warrant is lodged, the defendant is no longer confined solely on the new charges. 14-4-3463 State in the Interest of O.G., Ch. Div. (10 pp.) Where defendant juvenile if tried as an adult would have been convicted of second-degree aggravated assault for seriously injuring a jogger by throwing rocks, trial judge held that a victim in a juvenile matter is allowed to address the court prior to sentencing as in an adult proceeding, since such statments are not precluded by N.J.S.A. 2A:4A-42c and N.J.S.A. 52:4B-36. [Approved for publication June 7, 1994.] 14-2-3464 State v. John P. Higgins, Jr., App. Div. (15 pp.) Where defendant was originally convicted in municipal court of preventing a police officer from arresting a person by using physical force, trial judge erred in upholding the conviction, since the trial judge’s review was not a trial de novo, and the trial testimony contained numerous inconsistent statements. 14-2-3465 State v. James Rico Holman, App. Div. (12 pp.) Where defendant, who was convicted of purposeful or knowing murder, claimed that he was forced to shoot the victim out of fear for his own life, trial court erred in excluding assistant prosecutor’s testimony supporting defendant’s claim, even though it was based on hearsay, since under N.J.R.E. 803(b)(2) evidence is not excluded as hearsay where a party vouches for the information’s reliability and had acted in reliance on it, as the assistant prosecutor had done. 14-4-3466 State in the Interest of J.M., Ch. Div. (17 pp.) Where defendant juvenile, if tried as an adult, would have been convicted of joyriding in March 1993, and receiving stolen property in January 1994, trial court held that (1) N.J.S.A. 2A:4A-43e(2) sentencing provisions amended in June 1993 apply to the juvenile whether or not the previous adjudication predates the act’s passage, and (2) the legislative mandate in N.J.S.A. 2A:4A-43f(1) supersedes the conflicting R.5:21-3(e), since the question of credit for time served is a matter of substantive law as opposed to a question of practice and procedure. [Approved for publication on June 7, 1994]. 14-2-3467 State v. William A. McCray, App. Div. (7 pp.) Where defendant was convicted of purposeful or knowing murder, trial court, contrary to defense expert’s testimony, properly held that defendant was capable of intelligently waiving his Miranda rights, since the defendant had given the police a false alibi, demonstrating his ability to reason. 14-2-3468 State v. Howard Phillips, App. Div. (13 pp.) Where defendant was convicted of murder, trial court properly denied defendant’s motion to suppress evidence — of a gun seized from a locker at defendant’s old job, which a supervisor had found — since state and federal search and seizure constitution clauses do not protect citizens from unreasonable searches and seizures by private citizens, and the invalidity of the warrantless police search of the locker was overcome by the “third party intervention” exception.

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