STATE COURT CASES
ALTERNATIVE DISPUTE RESOLUTION
03-2-8845 In the Matter of the City of Camden and the International Association of Firefighters, Local 788, App. Div. (Espinosa, J.A.D.) (38 pp.) When the collective-bargaining agreement between Camden and its firefighters expired in December 2008, the parties engaged in compulsory interest arbitration under N.J.S.A. 34:13A-14 to -21. The arbitration was subject to both the New Jersey Arbitration Act, N.J.S.A. 2A:24-1 to -11, and the Compulsory Interest Arbitration Act procedure, which requires the arbitrator to give due weight to factors enumerated in N.J.S.A. 34:13A-16(g). Further, an amendment to N.J.S.A. 34:13A-16, effective Jan. 1, 2011, mandated that “a written report explaining how each of the statutory criteria played into the arbitrator’s determination of the final award” accompany each arbitrator’s decision. N.J.S.A. 34:13A-16(f)(5). It was undisputed that the city’s financial distress had resulted in substantial layoffs of its employees, including one-third of its firefighters and that state-controlled aid was declining. Although the arbitrator acknowledged that the city was unable to fund the award from its own tax base, he awarded the firefighters an 8.5 percent increase in base wages over four years. Calling the state a “fourth party” to the arbitration, the arbitrator concluded the state must provide funding for the city’s Fire Department budget, including salary increases. In addition, the arbitrator delayed and attempted to limit the firefighters’ contributions to health insurance costs, contrary to N.J.S.A. 40A:10-21.1 and N.J.S.A. 40A:10-21(b). We reverse PERC’s decision to affirm the award; vacate the award; and remand for proceedings before a different arbitrator for the following reasons: The arbitrator exceeded his authority by denominating the state a “fourth party” that he essentially required to fund the award. The award was the product of “undue means,” N.J.S.A. 2A:24-8(a), because it was contrary to statutory mandates governing employees’ contributions toward their health benefits, N.J.S.A. 40A:10-21.1 and N.J.S.A. 40A:10-21(b). The arbitrator failed to give due consideration to the factors set forth in N.J.S.A. 34:13A-16(g) or adequately explain how each of the statutory criteria played into the determination of the final award, as required by N.J.S.A. 34:13A-16(f)(g). The nature of these errors suggests a commitment to the arbitrator’s stated intention to award an increase to the firefighters, requiring that this matter proceed before a different arbitrator. [Decided Jan. 29, 2013.]
 
CRIMINAL LAW
14-2-8865 State v. Pomianek, App. Div. (Reisner, P.J.A.D.) (37 pp.) We construed one section of the bias intimidation statute, which defendant challenged as unconstitutional. We held that a conviction under N.J.S.A. 2C:16-1a(3) requires proof of the defendant’s biased intent in committing the predicate crime; proof of the victim’s perception of the crime is insufficient for a conviction. That construction is consistent with the legislative history and necessary to avoid holding the statute unconstitutional. We also construed the official misconduct statute, N.J.S.A. 2C:30-2a, holding that under the facts of this case defendant could be retried for official misconduct based on harassment by conduct but not harassment by communication. [Decided Jan. 30, 2013.]
 
CRIMINAL LAW — EXPUNGEMENT
14-2-8839 In the Matter of the Expungement of the Criminal Records of R.Z., App. Div. (Ostrer, J.A.D.) (20 pp.) We reverse and remand an order expunging an adult conviction for two second-degree crimes — theft by deception and financial facilitation of criminal activity — because petitioner failed to prove the crimes were contemporaneous. N.J.S.A. 2C:52-2(a) precludes expungement if a petitioner has been “convicted of any prior or subsequent crime.” Crimes are prior or subsequent if committed on “separate occasions.” In re Ross, 400 N.J. Super. 117, 122 (App. Div. 2008). We hold the petitioner bears the burden to show one crime was not prior or subsequent to the other. Also, we hold a crime involving a course of conduct is deemed to occur, for expungement purposes, when the course of conduct begins as well as when it ends, and we reject the suggestion that the date of commission is determined solely by N.J.S.A. 2C:1-6c, which states, for statute-of-limitations purposes, a crime involving a course of conduct is committed when the conduct terminates. We remand to allow petitioner to submit proofs that his two crimes were, in fact, contemporaneous. [Decided Jan. 28, 2013.]
 
TAXATION — REAL ESTATE
35-5-xxxx Regent Care Center Inc. v. Hackensack City, Tax Ct. (Andresini, J.T.C.) (22 pp.) Plaintiff, Regent Care Center Inc., the owner of a nursing home built in 1988 located in defendant city, Hackensack, challenged the local property tax assessment for tax years 2007-10. In valuing the nursing home, the parties came to a number of stipulations, ultimately leaving the Tax Court to determine entrepreneurial profit and depreciation. The Tax Court accepted plaintiff’s expert’s calculation for entrepreneurial profit because the facility project was built for an owner-occupier. The Tax Court found the older nursing home entitled to functional obsolescence but that it does not suffer from economic obsolescence. The Tax Court ultimately reduced the assessment. [Decided Jan. 28, 2013.]

35-5-xxxx Venture 17 v. Hasbrouck Heights, Tax Ct. (Andresini, J.T.C.) (30 pp.) Plaintiff, Venture 17, the owner of a multitenant office building located in defendant borough, Hasbrouck Heights, challenged the local property tax assessment for tax year 2009. In valuing the office building, the Tax Court found the sale of the subject property as an unreliable indicator of market value. Instead, the Tax Court analyzed the expert appraisers’ competing capitalized income approaches, making its own independent determination of value. The Tax Court reduced the assessment. [Decided Jan. 28, 2013.]
 
TORTS — RES IPSA LOQUITUR
36-2-8863 Mayer v. Once Upon a Rose Inc., App. Div. (Sabatino, J.A.D.) (15 pp.) This negligence case arises from the personal injuries that a caterer sustained when a glass vase shattered. The vase contained a floral arrangement, which a florist working at the same catered event had been carrying across the room. Invoking the doctrine of res ipsa loquitur, the injured caterer sued the florist and the floral company, contending that either the florist had been gripping the vase in a dangerous manner or that the vase had not been adequately inspected for cracks before it was brought to the site. The trial court granted defendants a directed verdict at the close of the caterer’s proofs before the jury, mainly because the caterer had not retained a liability expert to explain why the vase had shattered. We reverse, concluding that it was not essential for this plaintiff to have retained a liability expert in these circumstances, and that the jury should have been allowed to evaluate plaintiff’s claims based on res ipsa loquitur principles. [Decided Jan. 30, 2013.]
 
TRUSTS AND ESTATES
38-2-xxxx Stephenson v. Spiegle, App. Div. (Fisher, P.J.A.D.) (12 pp.) Two months after executing a will that conveyed his estate to family members or trusts benefiting family members, the decedent opened a bank account, which named defendant-attorney, the drafter of the will, as the “pay-on-death” beneficiary. After decedent died a year later, defendant expressed his surprise but also took the position that the account devolved to him personally. The estate commenced this action, seeking recovery of the funds and, after a bench trial, the Chancery Division judge ordered rescission, finding decedent made a unilateral mistake in that he likely intended to fund a trust or the trusts referenced in the will. The court affirmed, finding a unilateral mistake created no impediment to rescission where: the mistake was material; decedent exercised reasonable care; enforcement of the mistake would produce an unconscionable result; and defendant was not prejudiced by the loss of the windfall. The court also held the judge could have imposed a resulting trust or reformed this “poor man’s will” by application of the doctrine of probable intention. [Decided Jan. 31, 2013.]