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VOL. 3 NO. 35 DECISIONS RELEASED FEBRUARY 23, 1995 FAMILY LAW 20-2-5017 Jean Sable v. Jerome Sable, App. Div. (11 pp.) Income generated by retirement plans, 401Ks, I.R.A.s and savings plans is not retirement benefit within the meaning of N.J.S.A. 2A:34-23 and should not be excluded when determining alimony obligations; the defendant, however, made out a prima facie case of change of circumstances, and the matter therefore is remanded for a hearing. LABOR AND EMPLOYMENT 25-2-5018 Josephine Ferraro v. Bd. of Review, et al., App. Div. (4 pp.) Since the employee, by failing to complete a job training program, was not entitled to receive additional unemployment benefits, she must refund them, irrespective of the absence of fraud, bad faith or other misconduct on her part. NEGLIGENCE 07-2-5019 Robin Sherman v. James D. Huskins, et al., App. Div. (13 pp.) (1) A $90,000 jury verdict in favor of plaintiff is affirmed since the plaintiff carried her burden of proof and jury could find, from doctor’s testimony, that a pre-existing condition was not significant, and the accident in question exacerbated the condition to the point that surgery was necessary. (2) The fact that a doctor who treated plaintiff for a prior injury did not testify was not necessary for plaintiff to carry her burden of proof where her current doctor relied upon the prior doctor’s progress notes and there was no indication that the testimony of the prior doctor would differ from those notes. 07-2-5020 Leslie Ann Barrett, et al. v. Paulsboro Garden Assoc. Apts., App. Div. (10 pp.) Summary judgment was properly entered in favor of a defendant apartment complex where the plaintiff, an employee of a pest control company, went into the apartment’s attic to remove a raccoon, and injured herself falling off a floor joist, since plaintiff could see and know of the hazards related to walking on floor joists, which are part of or incidental to the work she was hired to perform. TAXATION 35-2-5021 Richard Simon v. City of Atlantic City, App. Div. (4 pp.) The determination of whether the amount of taxes due for the tax year in question was established and ascertainable in an appeal of a tax certificate holder must be made on remand to the Tax Court, because if the amount was not ascertainable, the appeal should not have been dismissed. CRIMINAL LAW AND PROCEDURE 14-1-5022 State of New Jersey v. Eddie Saez, et al., Supreme Ct. (20 pp.) Where the police conducted continuous surveillance of an informant’s prior observation of drug activities, it constituted a significant expansion of the informant’s observation and the third party intervention exception no longer applies; therefore, a search warrant is required and the fruits of that expanded search should have been suppressed. 14-2-5023 State of New Jersey v. William A. Walters, App. Div. (14 pp.) Where defendant s criminal conduct was used to enhance a federal sentence on a charge different than his state criminal charge, it does not violate the statutory bar on multiple prosecutions and New Jersey is not required to dismiss an indictment which describes the same criminal conduct. [Approved for publication Feb. 23, 1995.] 14-2-5024 State of New Jersey v. Rudolph Curry, App. Div. (15 pp.) Where a jury advised the trial judge that it was deadlocked, and the judge then re-instructed the jury, going well beyond the original charge, making remarks which could imply that the jury was not performing its obligations, and emphasizing that there was a duty to agree upon a verdict, the Appellate Division reversed, since the judge’s re-instruction was improper and coercive. 14-2-5025 State of New Jersey in the Interest of V.M., App. Div. (6 pp.) In an appeal by the state, while the placement of a juvenile under a 12-month review period pursuant to N.J.S.A. 2A:4A-43b(1) is a disposition under the Juvenile Code, it does not follow that the Legislature meant that the mandatory fines and penalties set forth in N.J.S.A. 2C:20-2.1 for theft offenses would apply. [Approved for publication Feb. 23, 1995.] OPINIONS THAT HAVE BEEN APPROVED FOR PUBLICATION: 01-2-4993 In re: Protest of the Award of the On-Line Games Production and Operation Services Contract (Feb. 17, 1995)

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