STATE COURT CASES

CRIMINAL LAW — SENTENCING

14-1-0404 State v. Tedesco, Sup. Ct. (Rabner, C.J.) (30 pp.) A criminal defendant does not have an absolute right to be absent from his sentencing hearing. Trial judges have discretion to decide whether to accept a defendant’s waiver of the right to be present. In an attempt to justify a waiver, a defendant must advance specific reasons that demonstrate special circumstances. Judges must consider various concerns, including the interests of the public, the defendant, the victims and the state. [Decided June 24, 2013.] [Digested at page 41.]

CRIMINAL LAW — SENTENCING

14-2-0383 State v. Rippy, App. Div. (Grall, J.A.D.) (20 pp.) The primary issues presented on this appeal and cross-appeal involve the award of jail credits on four indictments that were pending for several years. We hold that the state may appeal an award of jail credits on the ground that they are not authorized by Rule 3:21-8; that a defendant subject to multiple charges who has been sentenced on only one indictment is entitled to jail credits for a period of confinement that follows reversal of the convictions underlying the first sentence and precedes the first sentencing following the reversal; and that jail credits for such confinement are due on all indictments pending at the time. [Decided June 21, 2013.] [Digested at page 45.]

HEALTH LAW

22-2-0373 In the Matter of J.S., App. Div. (Axelrad, P.J.A.D.) (22 pp.) We affirm the final determination of the New Jersey Department of Human Services (DDD), declining to place J.S., a developmentally disabled adult who was in a private residential placement in Massachusetts and assigned to the nonurgent waiting list, on the priority waiting list retroactive to April 15, 1996, the date of the DDD’s new regulations that rendered J.S. eligible for priority placement. Based on the language of the regulations and our deference to the agency’s interpretation of its regulations, we are not convinced the DDD was legally obligated to affirmatively notify appellants, J.S.’s parents, of the change in regulations or that it acted arbitrarily or capriciously warranting judicial intervention. [Decided June 21, 2013.] [Digested at page 45.]

LAND USE AND PLANNING

26-1-0418 Price v. Himeji, L.L.C., and Union City Zoning Bd. of Adjustment, Sup. Ct. (Hoens, J.) (54 pp.) Evaluation of the particularly suitable standard is fact-specific and site-sensitive, requiring a finding that the general welfare would be served because the proposed use is peculiarly fitted to the particular location. Although the availability of alternative locations is relevant to this analysis, it does not bar a finding of particular suitability. In light of the thorough record and detailed resolution, the Appellate Division’s decision to exercise its original jurisdiction was proper, as was its decision to reinstate the board’s resolution granting Himeji’s application. [Decided June 25, 2013.] [Digested at page 44.]

26-2-0419 State of New Jersey, by the Commissioner of Transportation v. Shalom Money Street, L.L.C., App. Div. (Espinosa, J.A.D.) (9 pp.) In this condemnation case, both the state and the property owner filed appeals from the commissioners’ award fixing just compensation for a temporary taking. The issue before us is whether the trial court may reinstate the commissioners’ award over the parties’ objection after dismissing their appeals sua sponte. We conclude the trial court may not do so. [Decided June 25, 2013.] [Digested at page 46.]

LANDLORD/TENANT LAW

27-2-0421 Heyert v. Taddese, App. Div. (Parrillo, P.J.A.D.) (65 pp.) We hold in this instance that a landlord’s raising a tenant’s rent in excess of the municipality’s rent-control ordinance is a violation of the Consumer Fraud Act (CFA) by the occurrence of an affirmative act of misrepresentation. As such, plaintiff need not show actual deceit or fraud nor prove an intent to commit an unconscionable commercial practice and, therefore, a landlord’s mistaken reliance on counsel’s advice is not cognizable under the CFA’s strict liability standard. We also reject a series of challenges attacking Hoboken’s rent-control ordinance as unconstitutionally vague as it applies to condominiums, violative of the landlords’ civil rights under 42 U.S.C.A. § 1983, and amounting to an impairment of contract and a regulatory taking. Lastly, we conclude that the landlords’ appeal of the Rent Leveling Board’s 2005 legal base rent determination was untimely, and further uphold the lower court’s remand to the board for reconsideration of the grant of the landlords’ hardship application to consider the effect of the second mortgage on the landlords’ expected return on investment. [Decided June 25, 2013.]

LEGAL PROFESSION

04-1-0434 Kane Properties, L.L.C. v. City of Hoboken, Sup. Ct. (Hoens, J.) (48 pp.) The appearance of impropriety standard governs the evaluation of a municipal attorney’s conflict of interest. The city council’s decision is set aside because it was tainted by its attorney’s conflict of interest. In these unusual circumstances, to balance the rights of the parties and recognize the proper roles of the relevant decision-making bodies, the court remands this matter to the Law Division for a de novo review of the zoning board’s resolution, and directs the court to entertain the city council’s arguments or supplements to the record that bear on its own expertise and knowledge of the zoning scheme and give due consideration to the city council’s evaluation of the proposed use variances. [Decided June 26, 2013.]

TORTS — EVIDENCE

36-2-0380 Villanueva v. Zimmer, App. Div. (Kennedy, J.A.D.) (28 pp.) We hold that in a personal-injury action plaintiff cannot introduce into evidence or offer testimony respecting a Social Security Administration determination that she is disabled and unable to work to support her injury and damage claims. Such a determination is clearly hearsay and does not fall with the exceptions of N.J.R.E. 803(c)(8) or N.J.R.E. 803(c)(6). We distinguish Golian v. Golian, 344 N.J. Super. 337 (App. Div. 2006), and hold that that decision does not warrant a contrary result. [Decided June 21, 2013.] [Digested at page 46.]

FEDERAL COURT CASE

CIVIL PROCEDURE — JURISDICTION AND SERVICE OF PROCESS

07-7-0406 Mitsui O.S.K. Lines Ltd. v. Evans Delivery Co. Inc., U.S. Dist. Ct. (Debevoise, S.U.S.D.J.) (16 pp.) Plaintiff, which used the services of defendant-motor carriers to transport cargo shipments from foreign countries to inland destinations, filed an action asserting claims for, inter alia, fraud and breach of contract, after learning that defendants had been diverting shipments to locations closer than their intended destinations but billing as if the goods had been delivered to their intended destinations. Defendants removed the action and plaintiff moves to remand it. Defendants filed an action seeking declaratory relief against Mitsui’s claims in the first action, which Mitsui moves to dismiss. The court grants Mitsui’s motion to remand, finding that there is no complete pre-emption of Mitsui’s claims under the Interstate Commerce Commission Termination Act of 1995, which thus cannot serve as a basis for removal, and that the Carriage of Goods by Sea Act cannot serve as a basis of removal since the parties have not contractually stipulated that it extends to inland transportation in furtherance of maritime contracts. Nor is there complete diversity of the parties. The court grants the motion to dismiss the declaratory judgment action in light of the parallel state court proceeding involving the same parties and claims. [Filed June 10, 2013.] [Digested at page 53.]