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Vol. 4 No. 59 – MARCH 27, 1996 STATE COURT CASES CORRECTIONS 13-2-8306 William Tomaras v. N.J. Parole Bd., App. Div. (4 pp.) There is a lack of support in the record for the length of the term before which defendant’s parole eligibility may be reviewed, since, although defendant had 45 infractions during his incarceration, most of these were for cleanliness and cell maintenance violations which occurred when the defendant was first sent to prison as a 17-year-old, and there is only one serious infraction in the last three years. EDUCATION 16-2-8307 In the Matter of the Tenure Hearing of Frank Roberts, etc., App. Div. (5 pp.) While the appellate panel might not have imposed the ultimate penalty of dismissal upon tenured shop teacher for his unbecoming conduct — discussing sex with his students — it will not substitute its judgment for that of the state Board of Education, which dismissed the teacher. FAMILY LAW 20-2-8308 Richard Jay Coyle v. Arleen Jaros Coyle, App. Div. (6 pp.) In view of the genuine issue of material fact concerning whether the children’s medical insurance was paid for by plaintiff or by his employer, and what the cost to plaintiff really was, the judge erroneously entered orders on the papers requiring defendant to reimburse plaintiff for medical insurance costs. 20-2-8309 Karl Kehde v. Judith Kehde, App. Div. (15 pp.) Judge’s findings regarding alimony and equitable distribution must be reversed because the judge failed to make findings of fact and conclusions of law; on remand, the judge should consider awarding permanent alimony to wife in addition to rehabilitative alimony, since wife, in her mid-50s and out of the workforce for an inordinate period of time, would find employment difficult to procure, and her situation is further compounded by severe depression as a result of her daughter’s death. FAMILY LAW — DOMESTIC VIOLENCE 20-2-8310 W.W. v. K.W., App. Div. (5 pp.) Although the court does not condone wife’s conduct in faxing two letters to her husband at his workplace regarding visitation and day-care costs since those letters could cast husband in a bad light with his co-workers, the sending of the faxes does not constitute a pattern of regular, serious abusive, harassing and controlling behavior and is not “domestic violence” within the contemplation of the Domestic Violence Act. INSURANCE — VERBAL THRESHOLD 23-2-8311 James W. Wilson v. Krystyna Cichocka, App. Div. (2 pp.) Plaintiff’s application for police training and employment, his graduation from the police academy, and his current employment as an officer, all since his accident, belie his claim of serious injury impacting his life, and his case was properly dismissed. LABOR AND EMPLOYMENT — POLICE 25-2-8312 State Troopers Fraternal Ass’n of N.J. Inc., etc., et al. v. State of N.J., et al., App. Div. (6 pp.) On remand, since the trial judge found that it was a pre-existing state police practice and policy to pay retroactive salary increases to troopers who had resigned in good standing, it was a practice that was in effect as of the date of the commencement of the collective bargaining agreement, and became an expected element and unwritten feature of the agreement; troopers’ complaint was erroneously dismissed. LAND USE 26-2-8313 Brian & Daniel Enters. Inc., etc. v. Town of Morristown, etc., et al., App. Div. (11 pp.) Although there existed reasons for granting plaintiff’s application for rezoning of its property from residential transitional to industrial, there also was a basis for its denial, and the town council’s decision to “draw the line” in the transitional zone and deny the application was within its discretion. 26-2-8314 C.E.K., Inc. v. Zoning Bd. of Adjustment of the Twp. of Freehold, et al., App. Div. (2 pp.) Law Division judge properly determined that the nature and extent of a zoning officer’s unsworn participation in hearings deprived plaintiff of a fair hearing, and remand is affirmed. 26-2-8315 Da Nic Say Inc., etc., et al. v. Bd. of Adjustment of the Borough of Hopatcong, App. Div. (25 pp.) Law Division judge erred in reversing municipal board of adjustment’s denial of plaintiff’s building permit application — to remove dining tables in its restaurant and erect an entertainment stage — predicated upon plaintiff’s failure to prove pre-existing nonconforming use rights. NEGLIGENCE 31-2-8316 Mark Linskey, et al. v. Eric Schaffer, et al., App. Div. (6 pp.) Judge was correct in ruling that defendant’s out-of-court statement — that he had been “across the street drinking at the Chinese place” — was inadmissible and not a declaration against interest, since, even though the defendant was underage and the statement regarding drinking would inculpate him, the statement was not proffered by plaintiffs against that defendant, but to implicate the Chinese restaurant. 31-2-8317 Dorothy Belins v. Maloney’s Restaurant and Bar, App. Div. (4 pp.) Under the circumstances, the trial judge did not abuse his discretion in allowing case to be submitted to the jury without waiting for the arrival of subpoenaed police witnesses, since defense counsel called the witnesses based on computer-generated information, had not deposed or interviewed them, and was not sure what they would say, and therefore had not made a proffer of proof. NEGLIGENCE — TORT CLAIMS — IMMUNITIES 31-2-8318 Jere Boone, etc., et al. v. State of N.J., Div. of State Police, et al., App. Div. (8 pp.) Although the police spoke to detainee’s father and learned that detainee was a manic-depressive schizophrenic, based on the police observations of the detainee, the decision not to take him into custody is immune from challenge by detainee’s parents, where detainee later was involved in an accident. REAL ESTATE — SHERIFF’S SALES 34-2-8319 Independence One Mortgage Corp. v. Cora T. Gillespie, et al., App. Div. (4 pp.) Sheriff’s sale, conducted at 11:00 a.m. in accordance with an advertised notice of sale, but in violation of N.J.S.A. 2A:61-4, which requires such sales to be conducted between the hours of 12:00 p.m. and 5:00 p.m., is not void, but voidable, and in this case, where defendant mortgagor had full notice of the time of the sale, and did not challenge same within the time provided by R. 4:65-5, the motion to vacate the sale was properly denied. [Approved for publication Mar. 27, 1996.] CRIMINAL LAW AND PROCEDURE 14-1-8320 State v. Michael P. Megargel, Supreme Ct. (46 pp. — includes dissent) The reasons justifying the downgrading of an offense pursuant to N.J.S.A. 2C:44-1f(2) must be “compelling” and something in addition to and apart from the mitigating factors that substantially outweigh the aggravating factors, and, moreover, the Legislature’s creation of a lengthier sentence and presumptive prison term for a conviction of first-degree kidnapping mandates that a trial court exercise special caution before downgrading such a serious offense; the facts in this case do not warrant a downgrade of defendant’s sentence to a second-degree offense from a first-degree offense. FEDERAL COURT CASE EVIDENCE 19-7-8321 Russell Keep v. Children’s Aid and Adoption Society of N.J., etc., et al., U.S. Dist. Ct. (8 pp.) In plaintiff’s wrongful discharge case — in which he alleges that he was terminated based upon his superior’s wrongful belief that he had made an anonymous call to the state regarding allegations of employer’s institutional child abuse — magistrate judge properly denied plaintiff access to the complete contents of certain files of the state Div. of Youth and Family Services, since, although the files may be useful to plaintiff’s case, they are not necessary, and the need for confidentiality therefore is not outweighed by plaintiff’s need.

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