14-2-xxxx State v. Brewster, App. Div. (Ashrafi, J.A.D.) (19 pp.) This postconviction relief appeal addresses Padilla v. Kentucky, 130 S.Ct. 1473 (2010); State v. Nunez-Valdez, 200 N.J. 129, 138 (2009); and Rule 3:22-12, the limitations period for filing a PCR petition as amended in 2010. We hold that defendant did not establish factually a prima facie case of ineffective assistance of counsel by alleging that his attorney at the time he pleaded guilty in 1998 to marijuana charges failed to predict correctly that a federal deportation complaint would be filed against him in 2010. The warning contained in Question 17 of the plea form that defendant “may” be deported was correct and sufficient advice. Also, the PCR was untimely filed under R. 3:22-12, in particular, because an attorney told defendant no later than in 2007 that his conviction would cause immigration problems. [Decided Feb. 7, 2013.]
14-2-xxxx State v. Gibson, App. Div. (Ostrer, J.A.D.) (18 pp.) We hold that in a driving-under-the-influence prosecution, N.J.S.A. 39:4-50, due process and fundamental fairness preclude a trial court, absent a defendant’s consent, from relying on the evidence heard in a pretrial suppression hearing as proof of guilt in the trial on the merits. In this case, defense counsel objected to reliance on the suppression hearing record and moved to dismiss in the absence of other proofs. The court nonetheless found defendant guilty of DUI solely on the basis of evidence elicited at the pretrial hearing to suppress the fruits of a motor vehicle stop and subsequent arrest. We reverse the conviction and order entry of a judgment of acquittal. [Decided Feb. 7, 2013.]
20-4-xxxx Benjamin v. Benjamin, Ch. Div., Family Pt. — Ocean Co. (Jones, J.S.C.) (11 pp.) Having another job in place is not a prerequisite for a custodial parent wishing to relocate with a child to another state, but the likelihood of being able to establish a financially stable household is a relevant factor in considering a relocation application. [Decided Oct. 19, 2012.]
20-2-8906 Maeker v. Ross, App. Div. (Sapp-Peterson, J.A.D.) (24 pp.) In this appeal, we reverse the trial court ruling that the 2010 amendment to the Statute of Frauds, N.J.S.A. 25:1-5(b), requiring a writing memorializing palimony agreements and the independent advice of counsel for each party in advance of executing the agreement, applies only to palimony agreements entered after the Jan. 18, 2010, effective date of the amendment. We held the amendment is enforcement legislation, which addresses under what circumstances enforcement of palimony agreements may be enforced irrespective of when the purported agreement may have been entered. [Decided Feb. 4, 2013.]
20-1-8937 DYFS v. A.L., Sup. Ct. (Rabner, C.J.) (44 pp.) The finding of abuse and neglect under Title 9 cannot be sustained because the division failed to show actual harm or demonstrate imminent danger or a substantial risk of harm to the newborn child, which N.J.S.A. 9:6-8.21(c)(4)(b) specifically requires. [Decided Feb. 6, 2013.]
27-2-8942 Burns v. Hoboken Rent Leveling and Stabilization Board, App. Div. (Lihotz, J.A.D.) (17 pp.) We review defendant Bloomfield’s challenge to an order denying its motion to vacate plaintiff’s voluntary dismissal because it was not made a party to the stipulation. We agree the trial judge’s denial of Bloomfield’s motion to vacate the stipulation of voluntary dismissal was error because the stipulation failed to conform to requirements set forth in Rule 4:37-1(a). However, the error was harmless as the judge considered and granted plaintiffs’ cross-motion to dismiss the action with prejudice, pursuant to Rule 4:37-1(b). [Decided Feb. 6, 2013.]
34-2-8926 Borough of Merchantville v. Malik & Son, L.L.C., App. Div. (Axelrad, P.J.A.D.) (25 pp.) We affirm the Law Division’s order for final judgment in favor of the borough of Merchantville, permitting it to exercise its power of eminent domain and appointing commissioners, and denying the motion of appellant, L.B., a lien holder, to dismiss the condemnation complaint. We hold that a condemning authority is not obligated under N.J.S.A. 20:3-6 to negotiate with the assignee of a mortgagee that has obtained a final judgment of foreclosure on the subject property. Moreover, the property owner’s express “formal notification of [its] rejection” of the condemnor’s offer to purchase its property and vague invitation to discuss “more reasonable compensation in an amount which would satisfy all liens and encumbrances on the property” is inadequate evidence that the property is worth more than the amount offered, and constitutes a sufficient rejection of the condemnor’s bona fide one-price offer to permit the condemnor to proceed with litigation. [Decided Feb. 5, 2013.]
35-5-8910 City of East Orange v. Township of Livingston, Tax Ct. (Sundar, J.T.C.) (25 pp.) The Tax Court lacked subject-matter jurisdiction to determine the validity of the quantum of local property tax assessments for tax years 2009 and 2010 because plaintiffs failed to file timely challenges to those assessments in the Tax Court. Instead, plaintiffs waited until defendant issued a tax-sale certificate, and then filed a complaint in the Superior Court of New Jersey to void the certificate, Although defendants mailed the 2009 assessment notices to incorrect addresses, plaintiffs received actual notice of the same on receipt of the tax bills but did not file a complaint and seek excusal on equitable grounds of lack of timely notice. For tax year 2010, plaintiffs received timely assessment notices at the correct address yet failed to file a timely challenge in the Tax Court, Plaintiffs’ allegations that the assessments were grossly excessive thus erroneous and unconstitutional, and further that portions of the subject property were statutorily tax-exempt as being used for public purposes, do not waive or toll the statute of limitations. However, the Tax Court will decide the merits of plaintiffs’ allegation that the proposed tax-certificate sale violated the New Jersey Green Acres Land Acquisition and Recreation Opportunities Act, N.J.S.A. 13:8A-35 et seq., because this claim was timely raised in the Superior Court (which transferred the matter to the Tax Court). Until resolution of this issue, the stay and injunction against proceeding with the tax sale will continue. [Decided Jan. 31, 2013.]
42-6-8945 In re Boyajian, Debtor, U.S. Bank. Ct. (Stern, U.S.B.J.) (31 pp.) Debtor-defendant Jack Boyajian filed a Chapter 7 bankruptcy petition in August 2009. The trustee filed the immediate adversary proceeding in January 2010, seeking the denial of a bankruptcy discharge for the debtor, based on 11 U.S.C. § 727(a)(2) through (a)(5). The court notes that Boyajian, well-educated in finance and law, has been an active and apparently sophisticated businessman. He operated in the real estate marketplace as a broker, developer and “converter” of cooperative apartments to condominiums, and as a nationwide debt collector, commercially and through his law practices. Boyajian attributes his bankruptcy to overextension in real estate development and the market’s crash. Boyajian has scheduled an enormous amount of debt (disputed or otherwise), bulking up to $39,640,342. Yet his estate will have no assets to distribute to creditors. The court finds the debtor has, without justification, failed to keep or preserve adequate records required by the bankruptcy code so as to garner a discharge in bankruptcy. The debtor’s effort to cure his record-keeping failure by submitting, years postpetition, financial information, including a raft of tax returns, will not be permitted. Discharge is denied this debtor. [Filed Jan. 31, 2013.]
10-8-8891 Association of New Jersey Rifle and Pistol Clubs v. Governor of New Jersey, Third Cir. (Sloviter, U.S.C.J.) (7 pp.) Because New Jersey’s One Gun Law does not prohibit the purchase of BB guns and other pellet-firing air guns, but merely restricts the sale of such guns to one per person per month, it is not pre-empted by 15 U.S.C. § 5001(g)(ii). Nor does implementation of its exemptions violate the Due Process Clause of the Fourteenth Amendment since it does not deprive plaintiffs of any protected property interest they may have in the exemptions. [Filed Jan. 30, 2013.]