STATE COURT CASES
ATTORNEY/CLIENT — CONFLICT OF INTEREST
04-1-6184 Twenty-First Century Rail Corporation v. New Jersey Transit Corp., Sup. Ct. (Hoens, J.) (25 pp.) Disqualification of the attorney for PB Americas is warranted in this case because details relating to the construction project, the relationship among the parties, and the attorney’s prior representation of an adverse party, FKSB, demonstrate that the subsequent representation was prohibited by RPC 1.9(a). [Decided May 7, 2012.] [Digested at page 41.]
 
CRIMINAL LAW AND PROCEDURE — EVIDENCE
14-1-6209 State v. Santos, Sup. Ct. (LaVecchia, J.) (31 pp., including dissent by Albin, J.) The grant of an evidentiary hearing in which defendant was to be permitted to provide telephonic testimony must be reversed and the matter remanded for full reconsideration by the postconviction relief (PCR) court as to whether defendant can meet the standard for entitlement to an evidentiary hearing under State v. Gaitan, 209 N.J. 339 (2012). [Decided May 8, 2012.] [Digested at page 46.]
 
14-2-6208 State v. Gibson, App. Div. (Fisher, P.J.A.D.) (9 pp.) In this appeal, defendant argued, among other things, that the trial judge erred in denying his motion to suppress evidence seized from him following his arrest for defiant trespass. The court rejected this argument, concluding that the arresting officer possessed probable cause that defendant had engaged in a defiant trespass even though the property owner posted a “no loitering” instead of a “no trespassing” sign. [Decided May 8, 2012.] [Digested at page 46.]
 
CRIMINAL LAW AND PROCEDURE — EXPERT WITNESSES
14-2-6173 State v. Locascio, App. Div. (Sabatino, J.A.D.) (32 pp.) Defendant was convicted of vehicular manslaughter after a jury trial. The indictment stemmed from a one-car accident in which defendant’s boyfriend was killed after the car veered off the road and struck a tree. The pivotal issue at trial was whether, as the state contended, defendant was the driver or whether, as the defense and its expert contended, the boyfriend was the driver. The state presented expert testimony from the county medical examiner opining that defendant was the driver. During the course of his testimony, the medical examiner rendered opinions, over defendant’s objection, about the probable movements of the occupants within the car as it decelerated and crashed, including an analysis of how the passenger’s body allegedly “cushioned” the driver’s body during the accident. We reverse defendant’s conviction and order a new trial because the testimony of the medical examiner, who the state concedes is not qualified as an expert in biomechanics or accident reconstruction, prejudicially went beyond the scope of his expertise on a crucial disputed issue. The examiner’s testimony should have been confined to the aspects of his expertise as a pathologist concerning the nature and causes of bodily injury, and should not have delved into the biomechanical forces and movements within the automobile. [Decided May 4, 2012.] [Digested at page 48.]
 
CRIMINAL LAW AND PROCEDURE — JURY INSTRUCTIONS
14-2-6210 State v. Salter, App. Div. (Messano, P.J.A.D.) (24 pp.) Defendant was indicted for, among other crimes, two counts of aggravated sexual assault by oral penetration and two counts of criminal sexual contact. Each count alleged the conduct occurred between Sept. 2 and 5, 2006, and the language in each was identical. The juvenile victim testified to the various incidents that allegedly occurred and formed the basis of the individual counts, although his testimony was somewhat inconsistent with that given before the grand jury. In her jury instructions, the judge did not differentiate what alleged conduct was charged in each count. After an extended sidebar discussion, and the prosecutor’s ultimate assent, the judge submitted a jury verdict sheet that similarly did not differentiate what conduct was alleged in each of the four counts. The jury found defendant guilty of one count of aggravated sexual assault, but not guilty of the other. It also found defendant guilty of both counts of criminal sexual contact. [Decided May 8, 2012.] [Digested at page 48.]
 
LABOR AND EMPLOYMENT — CEPA — LIMITATION OF ACTION
25-2-6223 Schmidt v. Celgene Corporation, App. Div. (Grall, J.A.D.) (22 pp.) Plaintiff filed a complaint alleging violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -14, well beyond CEPA’s one-year limitation period, N.J.S.A. 34:19-5, and while he had a breach-of-contract action based on the same facts pending in Texas. Primarily because plaintiff’s delay is attributable to his initial selection of the Texas forum and his subsequent decision to pursue a remedy for a CEPA violation in New Jersey after an unfavorable choice-of-law determination by a court in Texas, we conclude that the doctrines of substantial compliance and equitable tolling do not permit him to proceed in New Jersey. [Decided May 9, 2012.] [Digested at page 49.]
 
TAXATION — REAL ESTATE
35-5-6226 Yeshivat v. Borough of Paramus, Tax Ct. (Nugent, J.T.C.) (12 pp.) Defendant moved pursuant to N.J.S.A. 54:4-34 (Chapter 91) to dismiss plaintiff’s 2011 tax appeal for failure to respond to the assessor’s request for the subject property income and expense information that covered the period Oct. 1, 2009, through Sept. 30, 2010. The property was listed in the assessor’s records as income-producing during that time. Dated Oct. 1, 2010, the request was received by the owner who transferred the property to plaintiff by deed dated Oct. 7, 2010. No response to the request was provided. Plaintiff contends that on transfer the use of the property ceased to be income-producing and opposes the motion on the following grounds: the dismissal sanction applies to income-producing property only, and plaintiff had no duty to provide property information in the possession of its predecessor-in-interest. The court finds that the failure of the prior owner to respond to a valid Chapter 91 request for property that produced income during the requested reporting period is a defect that runs with the land and acts to bar plaintiff’s tax appeal. Further, plaintiff’s assertion that the court should impose on the assessor the additional duty to track property transfers and resend the Chapter 91 request to each new owner is rejected. [Decided May 7, 2012.] [Digested at page 49.]
 
TORTS — PREMISES LIABILITY
36-2-6191 Gray v. Caldwell Wood Products, App. Div. (Maven, J.S.C., temporarily assigned) (10 pp.) In this action, plaintiff was injured as a result of a slip and fall on ice on the sidewalk in front of defendant’s vacant commercial building. In the appeal, the court considered whether the commercial property owner owed a duty to the plaintiff. The trial court entered summary judgment in favor of defendant, finding that sidewalk liability did not apply because, as a vacant building, the property was not being used at the time of the accident. In reversing, the court determined that the commercial property was subject to sidewalk liability because the property had the capacity to generate income and did, in fact, spread the risk of loss by maintaining commercial property insurance. The court also held that defendant had a duty to remove snow and ice from sidewalks abutting its property. [Decided May 7, 2012.] [Digested at page 48.]