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VOL. 2, NO. 199 DECISIONS RELEASED NOVEMBER 14, 1994 CONTRACTS 11-2-4299 Grace Consulting, Inc. v. Ardor Assocs., Inc. and Alex Labetti, App. Div. (12 pp.) Where parties sued each other for alleged breach of a contract for computer consultant services’ joint marketing, trial court erred in granting plaintiff’s partial summary judgment motion, since many factual issues existed, such as the damages issue. CONTRACTS – REAL ESTATE – TORTS 11-2-4300 Meryl Effman v. Joy Cho-Cho-oo Tong and Schlott Realtors, App. Div. (7 pp.) Where defendant buyer agreed to buy plaintiff owner’s house, trial judge erred in holding that buyer had committed legal fraud in falsely representing that she had sufficient money to complete the transaction, since there was no evidence that the buyer had the intent to deceive when she signed the agreement. CORRECTIONS 13-2-4301 Derrick Hardwick v. William H. Fauver, Comm’r of Dep’t of Corrections, App. Div. (6 pp.) Where defendant was convicted of several aggravated sexual assaults, commissioner erred in failing to give reasons for his refusal to modify defendant’s sentence as the review board recommended. FAMILY LAW 20-2-4302 Jean L. Barrett v. Richard M. Barrett, App. Div. (3 pp.) In a custody case, trial judge properly awarded custody to the husband, since the husband’s expert concluded that (1) the husband would have no relationship with the child if he was not awarded custody, and (2) the mother ” between the father and the child.” INSURANCE – AUTOMOBILES 23-2-4303 Stacy Lynn Mitchell v. David J. Sanchez, App. Div. (4 pp.) Where plaintiff injured her neck, knee and back in an automobile accident, trial court properly dismissed the complaint for failure to meet the verbal threshold, since plaintiff submitted insufficient medical proof of serious injury. 23-2-4304 Frank Vitrano v. Sean Goodwin and John Gansarski, App. Div. (4 pp.) Where plaintiff was injured in an automobile accident, trial court properly dismissed the complaint for failure to meet the verbal threshold, since he offered no evidence that he was disabled after 60 days following the accident. PUBLIC EMPLOYEES 33-2-4305 Beverly Pue v. State of New Jersey Dep’t of Human Servs., App. Div. (8 pp.) Human services district director properly fired a regional staff nurse, since she falsified her time sheets and left work early. TORTS 36-2-4306 Vincent Battista and Dora Battista, v. Supermarket Gen. Corp., App. Div. (8 pp.) Where husband, agreed to a settlement for injuries sustained when an object fell on him in a store, trial court properly denied plaintiffs’ motion for reconsideration filed after the settlement was affirmed, even though the wife didn’t settle, since a reconsideration motion cannot resurrect an appeal that is already time-barred. CRIMINAL LAW AND PROCEDURE 14-2-4307 State v. Horace G. Cowan, App. Div. (9 pp.) Where defendant was convicted of aggravated manslaughter, trial court properly denied defendant’s motion for a mistrial when a police investigator testified that defendant was on parole when arrested, since the judge’s curative jury instruction removed any prejudice. 14-2-4308 State v. Marlon Gaston, App. Div. (5 pp.) Where defendant was convicted of cocaine possession, trial judge erred in suggesting to the jury that a defendant is either guilty or not guilty on all the charges, since it is fundamental that jurors may reach inconsistent or compromise verdicts. 14-2-4309 State v. Jesse Guzman, App. Div. (6 pp.) Where defendant received seven consecutive sentences for a prison escape, trial court (1) properly denied defendant’s post-conviction relief motion alleging ineffective assistance of counsel, since it was time barred and (2) found no excusable neglect that would warrant relaxation of the rules. 14-2-4310 State v. Earle Jackson, App. Div. (7 pp.) Where defendant was convicted of first-degree robbery, trial court properly rejected defendant’s lack-of-a-speedy-trial claim, since the delay was caused by defendant’s failure to appear for two scheduled arraignments, and his attempts to obtain private counsel. 14-2-4311 State v. Leo R. Jones, App. Div. (11 pp.) Where defendant was convicted of first-degree robbery, trial court erred denying defendant’s pretrial suppression motion, since arresting officers cannot carry out an arrest warrant by breaking into a private home, not knowing the offense for which the warrant was issued. 14-2-4312 State v. Victor Perez, App. Div. (5 pp.) Where defendant, who was convicted of weapons possession for an unlawful purpose and aggravated assault, claimed that the judge failed to instruct the jury to determine the underlying criminal act the defendant intended to commit with the weapon, the jury was properly instructed, since the aggravated assault conviction supplied the factual basis for the “unlawful purpose,” under N.J.S.A. 2C:39-4a. 14-2-4313 State v. Tagliaferri, App. Div. (6 pp.) Where defendant claimed that his guilty plea to a 1981 offense was unconstitutional–because he was not informed of his right against self-incrimination–and, therefore, the plea could not be used by a judge in sentencing him as a persistent offender after a 1991 heroin-possession conviction, trial court properly sentenced defendant, since there was no evidence that defendant was pressured or coerced to plead guilty.

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