Civil Litigation Track Hot Cases of the New Jersey Supreme Court ...

Civil Litigation Track 

Hot Cases of the New Jersey Supreme Court Term 

Co-Sponsored by the Amicus Committee, the Association of Criminal Defense 

Attorneys - New Jersey and the GLBT Rights Section 

Moderator: 

Speakers: 

Thomas H. Prol, Esq. 

Cleary Giacobbe Alfieri & Jacobs, LLC 

Frank Corrado 

Barry, Corrado & Grassi PC, Wildwood 

American Civil Liberties Union, New Jersey 

Paul H. Heinzel 

Deputy Attorney General 

Leslie Stolbof Sinemus, Esq. , President 

Association of Criminal Defense Attorneys - New Jersey 

Maryann Spoto, Reporter 

The Star-Ledger

APPEALS ADDED IN THE NEW JERSEY SUPREME COURT 

LISTED NEWEST TO OLDEST 

The following statements of issues on appeal are prepared by the Office of the Clerk for the 

convenience of the reader. They have been neither reviewed nor approved by the Supreme 

Court. Please note that, in the interest of brevity, not all issues may have been summarized. 

Beginning on July 16, 2010, each appeal summary posted on this website includes its "posted" 

date, which is necessary for calculating certain due dates for filing briefs and motions under 

revised Rule 1:13-9, "Amicus Curiae." 

Last Updated: 04/11/2012 

A-103-11 Harlan W. Waksal v. Director, Div. of Taxation (069599) 

May these taxpayers follow federal accounting rules to deduct a non-business bad debt as a 

capital loss on their New Jersey gross income tax returns in accordance with Koch v. Director, 

Division of Taxation, 157 N.J. 1 (1999)? 

Certification granted 3/29/12 

Posted: 4/3/12 

Argued: 

Decided: 

A-102 & A-38-11 Robert Sipko v. Koger, Inc. (068417) 

Was the gift of stock to plaintiff conditioned on his continued employment and did he surrender 

his interest in the corporations? 

Certification granted 11/18/11 & 3/23/12 

Posted 11/21/11 & updated 4/3/12 

Argued: 

Decided: 

A-101-11 Lorraine Gormley v. Latanya Wood-El (069717) 

Are defendants entitled to qualified immunity in this case alleging violation of a constitutional 

right to substantive due process for failing to protect plaintiff while she was providing legal 

services to her involuntarily-committed client? 

Motion for leave to appeal granted: 3/22/12 


Argued: 

Decided: 

A-100-11 Darnice Green v. Morgan Properties (069540) 

Where provisions in plaintiffs' residential leases provide for the landlords' recovery of specific 

amounts as attorney's fees, have plaintiffs stated a cause of action under the Consumer Fraud 

Act or for negligent misrepresentation based on their allegation that the charges exceed the 

landlords' actual cost for in-house legal representation and thus results in illegal fee sharing? 

Certification granted: 3/22/12 


Argued: 

Decided: 

A-99-11 State v. Troy N. Nate (069314) 

Should defendant's conviction of the charge of possession of a weapon for an unlawful purpose 

be merged with the aggravated manslaughter conviction? 

Certification granted: 3/14/12

Posted: 3/16/12 

Argued: 

Decided: 

A-98-11 State v. Antoine Stevens (069313) 

Did defendant present a prima facie case of ineffective assistance of counsel entitling him to an 

evidentiary hearing on his application for post-conviction relief from a conviction of possession 

with intent to distribute heroin without 500 feet of a public park, where his trial attorney did not 

investigate and present evidence establishing that the distance from defendant's arrest to the 

public park exceeded 500 feet? 


Posted: 3/16/12 

Argued: 

Decided: 

A-96/97 -11 Kane Properties, L.L.C. v. City of Hoboken (069676) 

Where plaintiff, a developer of a planned 12-story residential building, applied for zoning 

variances under N.J.S.A. 40:55D-70(d), for residential use and exceeding story and building 

height restrictions, was city council's disapproval of the zoning board's grant of the variances 

tainted by a conflict of interest created by the involvement of a city attorney who previously 

represented the operator of a nearby residential building that challenged plaintiff's application; 

and if so, what is the appropriate remedy? 


Posted: 3/16/12 

Argued: 

Decided: 

A-95-11 Kelly Ruroede v. Borough of Hasbrouck Heights (069484) 

Where the trial court vacated and remanded a non-civil-service municipality's administrative 

decision to terminate a police officer, was it error to order reinstatement to inactive status with 

back-pay pending additional disciplinary hearings under N.J.S.A. 40A:14-147 to -151? 


Posted: 3/16/12 

Argued: 

Decided: 

A-94-11 George C. Riley v. State Parole Board (069327) 

Is the retroactive application of the Sex Offender Monitoring Act, N.J.S.A. 30:4-123.89 to - 

123.95, to persons who committed offenses before its enactment unconstitutional? 

Appeal as of right (Appellate Division dissent); and certification granted: 3/14/12 

Posted: 3/16/12 

Argued: 

Decided: 

A-93-11 State v. Bruce D. Sterling (068952) 

Should the first trial involving two separate sexual assaults and a separate burglary have been 

severed and was evidence of that burglary improperly admitted as other-crimes evidence in the 

second trial for a third, separate sexual assault charge? 


Posted: 3/16/12 

Argued: 

Decided:

A-92-11 State v. Kin Chi Wong a/k/a Xi Yi Gao (068675) 

Should the trial court have granted defendant's motion for judgment of acquittal on the charge of 

accessing a computer with a scheme to defraud in violation of N.J.S.A. 2C:20-25? 


Posted: 2/27/12 

Argued: 

Decided: 

A-91-11 State v. Oscar Porter (069223) 

Was defendant entitled to an evidentiary hearing on his petition for post-conviction relief under 

the circumstances? 


Posted: 2/27/12 

Argued: 

Decided: 

A-90-11 State v. Michael B. Franklin (068861) 

Was it error for the State to have questioned defendant during the trial about his refusal to give 

a urine sample or to sign a consent for diagnosis and treatment while at the hospital? 


Posted: 2/14/12 

Argued: 

Decided: 

A-89-11 State v. John J. Lawless, Jr. (069703) 

Are injured passengers who are family members of the person killed in an automobile accident 

"victims" for sentencing purposes under aggravating factor two, N.J.S.A. 2C:44-1.a.(2), when 

defendant pled guilty only to aggravated manslaughter and not to charges involving the family 

members? 

Motion for leave to appeal granted: 2/9/12 

Posted: 2/14/12 

Argued: 

Decided: 

A-88-11 State v. Eric Clemente Rangel (069204) 

Under N.J.S.A. 2C:14-2(a)(3), which makes it first-degree sexual assault if the "act of sexual 

penetration of another person" is committed under the circumstance of "aggravated assault on 

another," must the aggravated assault be on a person other than the sexual assault victim? 


Posted: 2/14/12 

Argued: 

Decided: 

A-86/87-11 Michael Battaglia v. United Parcel Service, Inc. (069405) 

Was plaintiff engaged in "protected activity" under the New Jersey Law Against Discrimination 

(NJLAD) or the Conscientious Employee Protection Act (CEPA) such that his employment 

demotion constituted retaliation entitling plaintiff to damages, or should defendant have been 

granted judgment notwithstanding the verdict or a new trial? 


Posted: 2/14/12 

Argued: 

Decided:

A-85-11 State v. Angelina Nicole Carlucci (069183) 

Were defendant's statements about her recent drug use, which were made before being 

informed of her Miranda rights in response to questioning by an investigating officer about drugs 

found at the defendant's place of employment, admissible? 



Argued: 

Decided: 

A-84-11 Ilirjan Bida v. Township of Wayne (068950) 

Is plaintiff barred from pursuing a complaint with the Tax Court for relief pursuant to the 

Correction of Errors statute, N.J.S.A. 54:51A-7, under the circumstances presented, which 

included plaintiff's failure to timely appeal a municipal property tax to the County Board of 

Taxation? 



Argued: 

Decided: 

A-82/83-11 Anthony D'Agostino v. Ricardo Maldonado (068940) 

Was the mortgage-rescue transaction in this matter a sale of "merchandise" bringing it within the 

purview of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -184? 



Argued: 

Decided: 

A-81-11 Division of Youth & Family Services v. I.S. (069672) 

Did the trial court have authority to enter an order continuing Division of Youth and Family 

Service's care, supervision, and custody of this child in the absence of a finding of abuse or 

neglect? 



Argued: 

Decided: 

A-80-11 Harold M. Hoffman v. Supplements Togo Management, LLC (068416) 

In this case alleging fraud and Consumer Fraud Act violations relating to a product purchased 

over the internet, were the complaint's allegations of damages and loss sufficient to survive a 

motion to dismiss, and was plaintiff's dual role as class counsel and class representative 

permissible? 



Argued: 

Decided: 

A-72/73/74/75/76/77/78/79-11 Advance Housing, Inc. v. Township of Teaneck 

(069436) 

Are real properties owned by a non-profit corporation that provides housing and other services 

for individuals with severe psychiatric disabilities exempt from property taxes under N.J.S.A. 

54:4-3.6 when the non-profit receives partially-subsidized rent from the individuals and does not 

require that that they participate in the non-profit's services? 


Posted: 2/6/12

Argued: 

Decided: 

A-71-11 James P. Renner v. AT&T (068744) 

Does the record support this workers' compensation claim under N.J.S.A. 34:15-7.2, which sets 

the standard of proof governing claims based on injury or death from cardiovascular causes? 


Posted: 2/14/12 

Argued: 

Decided: 

A-70-11 State v. Bernard Youngkin (069109) 

Was defendant denied effective assistance of counsel entitling him to withdraw his guilty plea to 

criminal restraint because he was not warned that although he did not plead guilty to a predicate 

sexual offense, the State could later seek his civil commitment under the Sexually Violent 

Predator Act, N.J.S.A. 30:4-27.24 to -27.38? 



Argued: 

Decided: 

A-69-11 State v. Angel Hernandez (068980) 

In light of defendant’s duress defense to the murder charge, was it plain error that the jury 

verdict sheet did not state that a finding of duress would result in a manslaughter conviction? 


Posted: 1/24/12 

Argued: 

Decided: 

A-68-11 State v. Robert Handy (069022) 

If a defendant with a history of mental illness wishes to have a jury trial to put the State to its 

burden of proving the charges against him beyond a reasonable doubt, must the defendant first 

submit to a bench trial restricted to the issue of insanity? 


Posted: 1/24/12 

Argued: 

Decided: 

A-67-11 State v. Jarrett Parker (068966) 

Did the prosecutor's references to defendant's prior use of aliases to impeach his credibility 

deprive defendant of a fair trial? 


Posted: 1/24/12 

Argued: 

Decided: 

A-66-11 Alex Perez v. Professionally Green LLC (069482) 

Are plaintiffs who prove a technical violation of the Consumer Fraud Act, N.J.S.A. 56:8-2 to -20, 

but whose claim is dismissed as a matter of law at trial for failing to provide sufficient proof of an 

ascertainable loss, entitled to recover attorney fees and costs? 


Posted: 1/24/12 

Argued: 

Decided:

A-65-11 Estate of Frederick Hetmanski v. Rahway Hospital (069229) 

In this wrongful death case involving a psychiatric patient who committed suicide while under 

defendants’ care, should the jury have been instructed that defendants owed decedent a special 

duty of care to prevent him from engaging in self-destructive behavior, and was the jury 

properly instructed that it could not consider decedent’s conduct when determining the issues of 

liability or causation? 


Posted: 1/24/12 

Argued: 

Decided: 

A-64-11 State v. Osborne S. Maloney (068877) 

Was the trial court required to charge the jury on accomplice liability in this trial for crimes that 

included armed robbery? 


Posted: 1/18/12 

Argued: 

Decided: 

A-63-11 State v. A.R. (068957) 

Did the trial court commit reversible error by permitting the jury to access during their 

deliberations in the jury room the videotaped interviews of both the victim and defendant? 


Posted: 1/18/12 

Argued: 

Decided: 

A-62-11 Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C. (069082) 

Is an oral settlement agreement reached during non-binding mediation but not reduced to 

writing until after the mediation concluded enforceable under the circumstances presented? 


Posted: 1/18/12 

Argued: 

Decided: 

A-60/61-11 Town of Kearny v. Louis F. Brandt (068992) 

May defendants who were granted summary judgment pursuant to the Statute of Repose be 

considered parties for purposes of apportioning liability to the remaining defendants under the 

Joint Tortfeasor Contribution Law, N.J.S.A. 2A:53A-1 to -5, and the Comparative Negligence Act, 

N.J.S.A. 2A:15-5.1 to -5.8? 


Posted: 1/18/12 

Argued: 

Decided: 

A-59-11 John T. Carlin v. Cornell, Hegarty & Koch (069248) 

In this insurance coverage action, does a claim that defendants fraudulently concealed evidence 

during their prior successful defense of a covered personal injury claim fall with the scope of 

coverage applicable to that original claim, or is it a new claim that is not otherwise covered by 

the applicable policies? 


Posted: 1/18/12 

Argued: 

Decided:

A-58-11 In re: Context of November 8, 2011 Election of Office of New Jersey General 

Assembly, Fourth District (069853) 

Does the residency requirement for holding a State legislative office set forth in N.J. Const. art. 

IV, §1, 2, violate the United States Constitution? 


Posted: 1/18/12 

Argued: 1/27/12 

Decided: 02/16/12 

A-57-11 Daniel Angland v. Mountain Creek Resort, Inc. (069461) 

Does the New Jersey Ski Statute, N.J.S.A. 5:13-1 to -12, which establishes standards of care for 

ski area operators, also govern liability of individual skiers? 

Leave to appeal granted: 1/13/12 

Posted: 1/18/12 

Argued: 

Decided: 

A-56-11 State v. Cesar Albert Vargas (069449) 

Where police entered an apartment in response to the landlord’s 9-1-1 call in which the landlord 

stated that the tenant had not been seen or heard from for more than two weeks, was evidence 

seized during the entry admissible in a criminal proceeding against the defendant under the 

community caretaking exception to the warrant requirement? 


Posted: 1/18/12 

Argued: 

Decided: 

A-55-11 State v. Keith R. Buckley (069494) 

In this trial on charges of vehicular homicide, was evidence about the victim’s failure to wear a 

seat belt and about the placement of a utility pole admissible on the issue of causation? 


Posted: 1/18/12 

Argued: 

Decided: 

A-54-11 State v. John J. Rockford, III (069106) 

Did use by police of a flash-bang device require suppression of evidence seized from defendant's 

home under these circumstances? 

Appeal as of right (Appellate Division dissent) 


Argued: 

Decided: 

A-53-11 State v. Thomas W. Earls (068765) 

Was defendant’s arrest valid where law enforcement officers used information from defendant’s 

cell phone provider about the general location of the cell phone; and did the plain view exception 

to the warrant requirement apply in these circumstances? 


Posted: 12/16/11 

Argued: 

Decided: 

A-52-11 Ten Stary Dom Partnership v. T. Brent Mauro (069079) 

Was the planning board’s denial of defendant’s application for a zoning variance due to

insufficient frontage under N.J.S.A. 40:55D-70 of the Municipal Land Use Law arbitrary, 

capricious, and unreasonable because it was based in part on consideration of flooding and 

drainage concerns? 


Posted: 12/16/11 

Argued: 

Decided: 

A-51-11 State v. Larson O’Connor & Corey Moore (068845) 

Was this warrantless search of a motor vehicle, based on an anonymous tip to a police officer’s 

work cell phone that the occupants were displaying a firearm, a valid protective search under 

Michigan v. Long, 463 U.S. 1032 (1983), or permitted by the automobile exception and State v. 

Pena-Flores, 198 N.J. 6 (2009)? 


Posted: 12/16/11 

Argued: 

Decided: 

A-50-11 In The Matter Of The Liquidation of Integrity Insurance Company/The Celotex 

Asbestos Trust (068970) 

Is the insured collaterally estopped from obtaining coverage because a prior decision of a 

bankruptcy court held that the insured failed to provide a proper notice of claim under the 

relevant insurance policies? 


Posted: 12/16/11 

Argued: 

Decided: 

A-49-11 State v. Rashad Walker a/k/a Derrick Moss (068742) 

Where police knocked on defendant’s door based on an anonymous tip that a man was selling 

illegal drugs there, and defendant opened the door while smoking a marijuana cigarette, did the 

State establish both probable cause and non-police-created exigent circumstances justifying the 

warrantless search of defendant’s apartment? 


Posted: 12/16/11 

Argued: 

Decided: 

A-48-11 State v. Don C. Shaw (068741) 

Was the discovery of an outstanding arrest warrant an intervening circumstance sufficient to 

dissipate the taint from the prior unlawful stop? 


Posted: 12/16/11 

Argued: 

Decided: 

A-47-11 State v. Michael Cahill (068727) 

Were defendant’s motor vehicle violations properly dismissed on the basis that he was denied a 

speedy trial? 


Posted: 12/16/11 

Argued: 

Decided:

A-46-11 Larry Price v. Himeji, LLC & Union City Zoning Bd. of Adjustment (068971) 

Did the Zoning Board of Adjustment properly approve an application for a special reasons 

variance to construct an apartment building on this property, and did the Appellate Division err 

in ruling on challenges to the approval that the trial court did not address? 


Posted: 12/16/11 

Argued: 

Decided: 

A-45-11 NAACP of Camden County East v. Foulke Management Corp. (069019) 

Were the arbitration provisions contained in various form documents that a consumer signed in 

connection with her purchase of a new motor vehicle from a New Jersey dealership enforceable? 


Posted: 12/16/11 

Argued: 

Decided: 

A-44-11 State v. Wali Williams (068647) 

Was defendant provided with ineffective assistance of counsel, thereby allowing him to withdraw 

his guilty plea, and was he entitled to an evidentiary hearing on that issue? 


Posted: 12/16/11 

Argued: 

Decided: 

A-43-11 State v. Kevin M. Campfield (068666) 

Did defendant provide a sufficient factual basis to support his plea of guilty to reckless 

manslaughter? 


Posted: 12/2/11 

Argued: 

Decided: 

A-42-11 Farmers Mut. Fire Ins. Co. v. N.J. Prop.-Liab. Ins. Guar. Ass’n (068824) 

Must the New Jersey Property-Liability Insurance Guaranty Association (PLIGA), which stands in 

the shoes of insolvent insurers, indemnify a solvent insurer for environmental cleanup costs 

according to the allocation method developed in Owens-Illinois, Inc., v. United Insurance Co., 

138 N.J. 437 (1994), or does a 2004 amendment to the PLIGA Act, N.J.S.A. 17:30A-1 to -20, 

control and require exhaustion of coverage from solvent insurers before PLIGA must contribute? 


Posted: 12/2/11 

Argued: 

Decided: 

A-41-11 State v. Blaine F. Scoles (069212) 

Subject to a protective order under Rule 3:13-3, should the defense be permitted to obtain the 

computer-based information containing the alleged child pornography that defendant is charged 

with possessing and e-mailing, or may defendant be restricted to reviewing the evidence against 

him at a State facility? 

Leave to appeal granted 11/18/11 

Posted: 11/21/11 

Argued: 

Decided:

A-40-11 Frank J. Nostrame v. Natividad Santiago (068651) 

May this attorney who was terminated by his client maintain an action against the client’s new 

attorney for tortious interference with contract under the circumstances? 


Posted: 11/21/11 

Argued: 

Decided: 

A-39-11 In the Matter of John C. Johnson, Cape May County (068900) 

Did the Civil Service Commission abuse its discretion in reclassifying this county employee’s title 

from an unclassified prosecutor’s agent, a position he served since 1984, to a classified property 

clerk? 


Posted: 11/21/11 

Argued: 

Decided: 

A-38 & A-102-11 Robert Sipko v. Koger, Inc. (068417) 

Was the gift of stock to plaintiff conditioned on his continued employment and did he surrender 

his interest in the corporations? 

Certification granted 11/18/11 & 3/23/12 

Posted 11/21/11 & updated 4/3/12 

Argued: 

Decided: 

A-37-11 Doreen Longo v. Pleasure Productions, Inc. (069257) 

In this case arising under the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8, is 

the employer entitled to a new hearing on punitive damages because the trial court declined to 

instruct the jury that a precondition to such an award was a finding that “upper management” 

actively participated in or was willfully indifferent to the violation of plaintiff's rights? 


Posted: 11/21/11 

Argued: 

Decided: 

A-36-11 State v. Askia Nash (068546) 

Did defendant establish ineffective assistance of counsel warranting a new trial where his trial 

attorney did not call potential witnesses who later provided written certifications in a civil action 

that corroborated defendant's claims? 


Posted: 11/21/11 

Argued: 

Decided: 

A-35-11 State v. Terrence Miller (068558) 

Did the denial of defense counsel's adjournment request require a new trial because defendant, 

through no fault of his own, was assigned a new attorney who he did not meet until the 

scheduled trial date? 


Posted: 11/10/11 

Argued: 

Decided:

A-34-11 Paul M. DePascale v. State of New Jersey (069401) 

As applied to certain justices and judges, does the Pension and Health Care Benefits Act, P.L. 

2011, c. 78, which increases public employees' contribution rates for their pension and 

healthcare benefits, operate to diminish judicial salaries and thereby violate article VI, § 6, 6 of 

the New Jersey Constitution? 


Posted: 11/10/11 

Argued: 3/26/12 

Decided: 

A-33-11 State v. J.D. (064757) 

Did the trial court err in applying the Rape Shield Law, N.J.S.A. 2C:14-7, to deny admission of 

evidence that the victim was sexually active? 


Posted: 11/7/11 

Argued: 

Decided: 

A-32-11 Prime Accounting Dep't v. Township of Carney's Point (068380) 

Where this complaint to challenge a tax assessment did not correctly identify the taxpayer and 

instead named a former tenant's accounting department, which never owned or leased the 

property but was listed on the municipal tax bill, should the taxpayer be permitted to amend the 

complaint to add itself as sole plaintiff to avoid dismissal for lack of standing? 


Posted: 11/7/11 

Argued: 

Decided: 

A-31-11 Amratlal C. Bhagat v. Bharat A. Bhagat (068213) 

In these circumstances involving a transfer of stock in a family business from father to son, was 

the standard for summary judgment properly applied to determine that, due to the high burden 

of proof needed to overcome the presumption that such a transfer is a gift, no rational factfinder 

could find that this was a conditional transfer instead of a gift? 


Posted: 11/7/11 

Argued: 

Decided: 

A-29/30-11 D.D. v. Univ. of Medicine & Dentistry of N.J. and Rutgers, The State Univ. 

of N.J. (068812) 

Was it an abuse of discretion for the trial court to grant this plaintiff permission to file a late 

notice of tort claim pursuant to N.J.S.A. 59:8-9, under the circumstances presented? 


Posted: 10/27/11 

Argued: 

Decided: 

A-28-11 Div. of Youth & Family Servs. v. A.L. (068542) 

May evidence of a mother's drug use during pregnancy and test results showing cocaine in the 

newborn baby's system, without more, support a finding of child abuse or neglect under N.J.S.A. 

9:6-8.21(c)(4)(b)? 


Posted: 10/27/11 

Argued: 

Decided:

A-27-11 State v. Ralph Sowell (068245) 

Did the State's expert testimony responding to hypothetical questions about whether a drug deal 

took place constitute plain error warranting a new trial? 


Posted: 10/27/11 

Argued: 

Decided: 

A-26-11/A-23-10 In the Matter of Advisory Letter No. 3-11 and Opinion No. 12-08 of 

the Supreme Court Committee on Extrajudicial Activities (066271) 

Consistent with the Canons of Judicial Conduct, can a part-time municipal court judge also 

pursue a career as a comedian and actor, including appearing on a weekly television program, 

using a fictitious name? 

Petition for review granted 10/08/10 & 10/25/11 

Posted 10/08/10 & 10/26/11 

Argued: 

Decided: 

A-25-11 In the Matter of Subpoena Duces Tecum on Custodian of Records, Crim. Div. 

Manager, Morris County (068596) 

Is information that defendant provided to the Superior Court, Criminal Division in applying for 

Public Defender representation protected by the attorney-client privilege? 


Posted 10/26/11 

Argued: 

Decided: 

A-24-11 Borough of East Rutherford v. East Rutherford PBA Local 275 (068872) 

Did the arbitrator have authority to require that the Borough reimburse the union members five 

dollars of the ten-dollar co-pay for physician visits mandated by the State Health Benefits Plan, 

N.J.S.A. 52:14-17.29(C), until the expiration of the current collective bargaining agreement? 


Posted 10/26/11 

Argued: 

Decided: 

A-23-11 State v. Aaron Crooms (068248) 

Was this warrantless search of a motor vehicle in a known drug-trafficking area permitted under 

the exigent-circumstances exception and State v. Pena-Flores, 198 N.J. 6 (2009)? 


Posted 10/26/11 

Argued: 1/17/12 

Dismissed by Order 02/02/12 

A-22-11 Sang Chul Lee and Jun Gil Lee v. Young Rah (068927) 

Under the circumstances of this legal malpractice action, do New Jersey courts have personal 

jurisdiction over defendant, a New York attorney? 


Posted 10/26/11 

Argued: 

Decided: 

A-21-11 State v. Antonio C. DeShazo (068233) 

Was there probable cause to stop and search this motor vehicle and was its warrantless search

permitted under the exigent-circumstances exception and State v. Pena-Flores, 198 N.J. 6 

(2009)? 


Posted 10/26/11 

Argued: 1/17/12 


A-19/20-11 & A-9-11 State in the Interest of V.A./State in the Interest of C.T./State in 

the Interest of M.R., Minors (068707) 

In this case in which the Prosecutor determined to transfer jurisdiction of juvenile criminal 

defendants from the Family Part to the Law Division, Criminal Part, were the Attorney General's 

Juvenile Waiver Guidelines correctly applied? 

Leave to appeal granted 9/9/11 & 10/20/11 

Posted 9/19/11 & 10/26/11 

Argued: Scheduled for 4/24 

Decided: 

A-18-11 State v. Thomas J. Shannon (068220) 

Was this warrantless daytime search of a motor vehicle on the New Jersey Turnpike permitted 

under the exigent-circumstances exception and State v. Pena-Flores, 198 N.J. 6 (2009)? 


Posted 10/26/11 

Argued: 1/17/12 


A-17-11 Valeria Headen v. Jersey City Board of Education (068598) 

Are school districts that have adopted the New Jersey Civil Service Act, N.J.S.A. 11A:1-1 to :12- 

6, which applies to "full-time political subdivision" civil servant employees, required to extend 

vacation leave pursuant to that statute to the district's ten-month food service employees? 


Posted 10/26/11 

Argued: 

Decided: 

A-16-11 Douglas Trautman v. Chris Christie (067705) 

Is the New Jersey statute known as “Kyleigh’s Law,” which requires drivers with a special 

learner's permit to display a decal on their license plates, preempted by the Federal Driver's 

Privacy Protection Act; and does it violate equal protection of the law or the right against 

unreasonable search and seizure guaranteed by the United States and New Jersey constitutions? 


Posted 10/14/11 

Argued: 

Decided: 

A-15-11 State v. Joseph Schubert, Jr. (068149) 

After defendant has completed his term of probation, can the judgment of conviction be 

amended to add community supervision for life as required by N.J.S.A. 2C:43-6.4? 


Posted 10/14/11 

Argued: 

Decided: 

A-14-11 State v. Manaf Stas (068060) 

Did the trial court improperly rely on defendant’s silence at the accident scene as evidence that

defendant allowed another person to operate his motor vehicle while intoxicated contrary to 

N.J.S.A. 39:4-50(a)? 


Posted 10/14/11 

Argued: 3/27/12 

Decided: 

A-13-11 612 Associates, LLC v. North Bergen Municipal Utilities Authority (067931) 

Under the Sewerage Authorities Law, N.J.S.A. 40:14A-1 to -45, and the Municipal Land Use Law, 

N.J.S.A. 40:14B-1 to -78, is the sewerage authority to which a housing development is directly 

connected solely entitled to the sewerage connection fee, or is the neighboring sewerage 

authority that ultimately treats the effluent entitled to an equitable share of the fee? 


Posted 10/07/11 

Argued: 

Decided: 

A-12-11 IMO Advisory Letter No. 7-11 of Supreme Court Advisory Comm. on 

Extrajudicial Activities (068633) 

May petitioner continue to sit as a municipal court judge in light of his son's appointment as a 

police officer in the same municipality? 

Petition for review granted 9/30/11 

Posted 10/07/11 

Argued: 

Decided: 

A-11-11 US Bank National Ass'n v. Maryse Guillaume and Emilio Guillaume (068176) 

Are defendants entitled to an order vacating the default judgment of foreclosure in part because 

of deficiencies in the notice of intent to foreclose under the Fair Foreclosure Act, N.J.S.A. 2A:50- 

56c? 


Posted 10/07/11 

Argued: 11/30/11 

Decided: 2/27/12 

A-10-11/A-122-10 State in the Interest of A.D. (068232) 

Is it proper to transfer jurisdiction over these criminal charges against this juvenile defendant 

from the Chancery Division, Family Part to the Law Division, Criminal Part on the basis that the 

charges were supported by probable cause that the juvenile committed the alleged crime? 


Posted 7/5/11 & 10/7/11 


Decided: 

A-9-11 & A-19/20-11 State in the Interest of V.A./State in the Interest of C.T./State in 

the Interest of M.R., Minors (068707) 

In this case in which the Prosecutor determined to transfer jurisdiction of juvenile criminal 

defendants from the Family Part to the Law Division, Criminal Part, were the Attorney General's 

Juvenile Waiver Guidelines correctly applied? 


Posted 9/19/11 & 10/26/11 


Decided:

A-8-11 State v. Derek Kaltner (068778) 

Under the community caretaking exception to the warrant requirement, may police officers 

responding to a noise complaint who were permitted entry during a house party search beyond 

the first floor main living area for residents and seize contraband discovered in plain view in an 

upstairs bedroom? 


Posted 9/19/11 

Argued: 3/27/12 

Decided: 

A-6/7-11 Edward Nicholas v. Dr. Christopher Mynster (068439 & 068440) 

Under the Patients First Act, N.J.S.A. 2A:53A-41(a), may an expert testify against a physician 

who is certified by the American Board of Medical Specialties if the expert is not certified in the 

same specialty but practices “similar” medicine? 



Argued: 

Decided: 

A-5-11 Northgate Condo. Assoc., Inc. v. Borough of Hillsdale Planning Bd. (067794) 

In this action challenging preliminary site plan approval for a development, did plaintiff waive the 

right to challenge the developer’s notice and, if not, was the notice sufficient to apprise the 

public about the subject property even though it misidentified the tax map description of the 

property? 

Petition granted 9/9/11 


Argued: 

Decided: 

A-4-11 D.W. v. R.W. (068214) 

In this matrimonial action, was the “best interest of the child” test correctly applied to consider 

the husband’s request to compel a paternity test regarding the now-adult son in connection with 

the husband’s third-party claim against the suspected father for support reimbursement? 




Decided: 

A-3-11 Estate of Naitil Desir v. Jean Robert Vertus (067899) 

May a person who does not specifically convey his suspicion about an intruder when he asks a 

friend to help with “something going on” at his home office be held liable for his friend’s death 

caused by a third party’s criminal act when the friend went to investigate? 



Argued: 

Decided: 

A-2-11 New Jersey Dep’t of Envtl. Protection v. Ofra Dimant (067993) 

Under the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 to -23.24, is a defendant 

strictly liable for all damages caused by groundwater contamination regardless whether the 

Department can establish a causal connection between the leak and the damages? 




Decided:

A-1-11 State in the Interest of A.W. (067984) 

Was this 13-year-old juvenile’s right against self-incrimination violated because his father left the 

interrogation room after the officer, speaking in English which she knew the father did not 

understand, encouraged the juvenile to ask his father to leave; and were the interrogation 

techniques used likely to have caused the juvenile to confess involuntarily? 



Argued: 

Decided: 

A-131/132-10 State v. Norman Jackson (067869) 

Did the prosecutor’s comments during summation require that defendant’s motion for a new trial 

be granted, and was there sufficient evidence presented to support the kidnapping conviction? 



Argued: 3/13/12 

Decided: 

A-130-10 In the Matter of the Parentage of a Child by T.J.S. and A.L.S. (067805) 

Does the New Jersey Parentage Act, N.J.S.A. 9:17-38 to -59, recognize an infertile wife as the 

legal mother of her husband's biological child born to a gestational carrier using a donated egg; 

and if not, does the statutory omission violate equal protection by treating an infertile woman 

differently than a similarly-situated infertile man? 



Argued: 3/1/12 

Decided: 

A-129-10 State v. Rohan Goulbourne (068039) 

Should defendant be permitted to withdraw his guilty plea because he was not advised that he 

had the right to seek legal advice about his immigration status and that he would be deported 

because of his plea, in light of State v. Nuñez-Valdéz, 200 N.J. 129 (2009), and Padilla v. 

Kentucky, 130 S. Ct. 1473 (2010), which were decided after he entered his plea? 

Motion for leave to appeal granted 7/14/11 


Argued: 11/9/11 


A-128-10 Geraldine Murray v. Plainfield Rescue Squad (067996) 

Under the circumstances presented, was it error to grant the rescue squad's motion for summary 

judgment based on statutory immunity under N.J.S.A. 26:2K-29? 



Argued: 

Decided: 

A-127-10 Moses Segal v. Cynthia Lynch and Linda A. Schofel (067683) 

May a parenting coordinator, who also is an attorney, be awarded fees for time she spent 

responding to plaintiff’s motions and subpoenas and to his grievances against her under the 

Parenting Coordinator Pilot Program Implementation Guidelines? 




Decided:

A-126-10 In re Ronald C. Kollman, Jr., Petition for Expungement (067807) 

Did the trial court err in denying this petition for expungement of a conviction of third-degree 

distribution of a controlled dangerous substance? 



Argued: 3/13/12 

Decided: 

A-125-10 State v. Leroy Munroe (067772) 

Should defendant’s motion to vacate his plea to manslaughter prior to sentencing have been 

granted based on a claim that he acted in self-defense? 



Argued: 3/13/12 

Decided: 

A-124-10 State v. Boyce Singleton, Jr. (067756) 

Did the trial court commit plain error in not issuing the “deific-command” variation of the insanity 

defense jury instruction? 



Argued: 1/31/12 

Decided: 

A-123-10 Larisa Shelton v. Restaurant.com, Inc. (068404) 

Does the purchase of a gift certificate that is issued by a third-party internet vendor and is 

contingent (i.e., subject to particular conditions that must be satisfied in order to obtain its face 

value) qualify as a transaction for “property . . . which is primarily for personal, family or 

household purposes” so as to come within the definition of a “consumer contract” under section 

15 of the New Jersey Truth-in-Consumer Contract, Warranty, and Notice Act, N.J.S.A. 56:12-14 

to 12-18? 

Question of law certified by U.S. Court of Appeals for Third Circuit, accepted 6/30/11 

Posted 7/5/11 

Argued: 3/27/12 

Decided: 

A-122-10/A-10-11 State in the Interest of A.D. (068232) 

Is it proper to transfer jurisdiction over these criminal charges against this juvenile defendant 

from the Chancery Division, Family Part to the Law Division, Criminal Part on the basis that the 

charges were supported by probable cause that the juvenile committed the alleged crime? 


Posted 7/5/11 & 10/7/11 


Decided: 

A-121-10 State v. Alfonso Herrerra; State v. Nelson Gonzalez (067308) 

Are these defendants who were convicted of drug offenses and the attempted murder of the 

police officer who stopped their vehicle entitled to racial-profiling discovery from the State? 


Posted 7/5/11 


Decided:

A-120-10 State v. Charles Mordan (067610) 

Did the prosecutor’s closing remarks about the lack of testimony to support the defense’s theory 

that a bandana allegedly worn by defendant had been lost at the crime scene prior to the assault 

constitute impermissible comment on defendant’s choice not to testify? 


Posted 7/5/11 

Argued: 1/30/12 

Decided: 

A-119-10 Memorial Properties, LLC v. Zurich American Ins. Co. (067913) 

Did the "occurrences" for which this cemetery and crematorium seek coverage under their 

general liability insurance policy take place at the time of their alleged mistreatment of the 

decedents’ remains, or when the families of the decedents, the claimants in the underlying civil 

lawsuits, learned of the wrongdoing years later? 


Posted 7/5/11 

Argued: 1/30/12 

Decided: 

A-118-10 State v. Barrington McDonald (067022) 

Should defendant be permitted to withdraw his guilty plea to assault by auto in a school zone 

based on his claim that he did not know at the time of his plea whether the school zone as 

defined by N.J.S.A. 2C:12-1c(3)(a) actually included the area of the accident? 


Posted 7/5/11 


Decided: 

A-117-10 State v. Thomas J. Shannon (067687) 

Did sufficient exigent circumstances exist to justify this warrantless search of a vehicle stopped 

for motor vehicle violations, or was the search unconstitutional pursuant to State v. Pena-Flores, 

198 N.J. 6 (2009)? 


Posted 7/5/11 

Argued: 1/17/12 


A-116-10 New Jersey Dep’t of Envtl. Protection v. Robert and Michelle Huber (065540) 

Was the entry by the Department of Environmental Protection onto private property without a 

warrant for purposes of conducting an inspection and testing permissible under the 

circumstances presented? 



Argued: 

Decided: 

A-115-10 State v. Johnnie Parker (067670) 

Is a defendant entitled to oral argument in the trial court on a petition for post-conviction relief? 



Argued: 1/30/12 

Decided:

A-114-10 State v. Juan Pablo Santos (067989) 

Under what circumstances, if any, may a trial court permit a deported defendant to testify by 

telephone in an evidentiary hearing on defendant’s post-conviction relief application? 



Argued: 1/18/12 

Decided: 

A-113-10 Francis J. McGovern, Jr. v. Rutgers, The State University (067787) 

Did the board of governor’s meeting notice and its practices regarding its meetings violate the 

Open Public Meetings Act, N.J.S.A. 10:4-6 to -21? 




Decided: 

A-112-10 Wade Stancil v. ACE USA (067640) 

May an employee who suffered a work-related injury pursue a common-law cause of action 

against a workers’ compensation carrier for willful failure to comply with court orders compelling 

it to provide medical treatment when the delay or denial of treatment causes the employee’s 

condition to worsen? 



Argued: 3/26/12 

Decided: 

A-111-10 State v. Carlton Harris (067929) 

Are weapons seized during the execution of a search warrant issued under the Prevention of 

Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, admissible in a criminal prosecution? 




Decided: 

A-110-10 State v. Tarik Madison and Andre Stanley (068029) 

Did police have probable cause to search defendant for narcotics primarily because he interacted 

with a suspected drug dealer in a manner similar to an interaction between the suspected drug 

dealer and another individual who was found with drugs earlier that day? 




Decided: 

A-109-10 State v. Frensel Gaitan (067613) 

Do the decisions in Padilla v. Kentucky, 559 U.S. __, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010) 

and State v. Nunez-Valdez, 200 N.J. 129 (2009) apply to this non-citizen defendant’s argument, 

raised for the first time in his post-conviction relief petition, that his attorney failed to discuss 

with him the deportation consequences of his guilty plea? 



Argued: 11/9/11 


A-108-10 DYFS v. F.M. (067611) 

Was it appropriate to terminate defendant’s parental rights under the circumstances presented?




Decided: 

A-107-10 American Dream at Marlboro, L.L.C. v. Planning Bd. of Township of Marlboro 

(067617) 

Did plaintiff demonstrate changed circumstances that warranted vacating the deed restrictions 

on its property? 



Argued: 1/18/12 


A-106-10 State v. Shareef Edmonds (067889) 

Was the warrantless search of the residence justified under the emergency aid or the community 

caretaking doctrines based on an unknown informant’s report of domestic violence and that the 

perpetrator had a gun? 



Argued: 1/18/12 

Decided: 

A-105-10 Selective Insurance Co. v. Hudson East Pain Management (067133) 

Is an automobile insurer providing personal injury protection coverage entitled to expansive 

discovery from an assignee health service provider under the Uniform Declaratory Judgment Act 

in the insurer’s internal investigation of suspected insurance fraud? 




Decided: 

A-104-10 State v. Marcus King (067265) 

Was defendant denied his right to self-representation under the circumstances presented? 





A-103-10 State v. Derrick Harris, Sr. (067348) 

Was evidence of defendant’s prior criminal convictions admissible under the circumstances? 



Argued: 10/25/11 


A-102-10 State v. J.A.C. (067520) 

Were the contents of the minor victim’s instant messages to other adult males admissible? 



Argued: 11/9/11 

Decided:

A-101-10 Twenty-First Century Rail Corp. v. N.J. Transit Corp. (067652) 

Did the prior representation of plaintiff Frontier-Kemper by the attorney for defendant PB 

Americas create a conflict of interest under RPC 1.9 requiring the attorney’s disqualification from 

this case? 



Argued: 1/31/12 

Decided: 

A-100-10 Bobbie Humphries v. Powder Mill Shopping Plaza and Holly Gardens, Inc. 

(067267) 

Are plaintiffs entitled to an enhanced counsel fee award under the fee-shifting provisions of the 

Americans with Disabilities Act and the New Jersey Law Against Discrimination? 



Argued: 10/25/11 


A-99-10 Joyce McDougall v. Charlot Lamm (067436) 

May a dog owner maintain a claim for emotional distress when her pet dog is killed in her 

presence by another dog? 




Decided: 

A-98-10-10 New Jersey Assoc. of School Administrators v. Bret Schundler, Comm’r of 

Education (066789) 

Are the regulations imposing limitations on the compensation for school board administrators, 

N.J.A.C. 6A:23A-1.2 to -22.15, valid? 



Argued: 1/18/12 

Decided: 

A-97-10 Sussex Commons Associates v. Rutgers, the State University (067232) 

Is the Environmental Law Clinic operated by Rutgers School of Law, which provides pro bono 

environmental legal services to the public, a state agency subject to New Jersey’s Open Public 

Records Act, N.J.S.A. 47:1A-1 to -13? 



Argued: 3/12/12 

Decided: 

A-96-10_Jersey Central Power & Light Co. v. Melcar Utility Co. (067444) 

Does the Underground Facility Protection Act, N.J.S.A. 48:2-73 to -91, which requires that claims 

less than $25,000 "shall be subject to an alternative dispute resolution process as established" 

within the Public Defender's Office of Dispute Settlement ("ODS"), fail to provide sufficient 

guidance to the ODS; and does the ODS dispute resolution procedure, which mandates binding 

arbitration, constitute rulemaking in violation of the Administrative Procedure Act? 


Posted 4/1/11 

Argued: 11/29/11 

Decided:

A-95-10 Willie C. Rowe v. Mazel Thirty, LLC (067237) 

What standard of care is owed to a police officer injured while conducting a non-emergency 

building-violations check on a vacant building? 


Posted 4/1/11 

Argued: 11/30/11 


A-90/91/92/93/94 I/M/O Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey 

Council on Affordable Housing (067126) 

Are these "third-round" rules adopted by the Council on Affordable Housing under the Fair 

Housing Act (FHA), N.J.S.A. 52:27D-301 to -329.19, which establish municipalities' obligations to 

provide affordable housing, invalid because they include a compliance mechanism that involves 

use of a "growth share methodology"? 


Posted 4/1/11 

Argued: 

Decided: 

A-88/89-10 Vonnie Cornett v. Johnson & Johnson and Cordis Corp. (066671) 

In these product liability cases alleging defects in a medical device, are plaintiffs' common-law 

claims based on defendants' statements about off-label uses preempted by the Food, Drug, and 

Cosmetic Act, 21 U.S.C.A. §§ 301-399; and are the claims time barred? 


Posted 4/1/11 

Argued: 1/30/12 

Decided: 

A-87-10 State v. Buddy Randolph (067218) 

Where defendant's sentence was remanded for reconsideration under State v. Yarbough, 100 

N.J. 627 (1985), for the sentencing court to explain its decision imposing consecutive terms, did 

the court err in refusing to consider evidence of defendant's post-conviction rehabilitation 

efforts? 


Posted 4/1/11 

Argued: 10/25/11 

Decided: 

A-86-10 State v. Shannon Reeves (067193) 

In the circumstances presented, were police justified in stopping and frisking defendant for a 

weapon under State v. Williams, 192 N.J. 1 (2007)? 



Argued: 9/26/11 

Decided: 

A-84/85-10 John Seals v. County of Morris (067441) 

Where a vehicle strikes a utility-company owned pole that was placed along a county road many 

years before local laws regulated such placements, may the utility company or the county be 

held liable for the injuries sustained in light of Contey v. New Jersey Bell Telephone Co., 136 N.J. 

582 (1994), and the New Jersey Torts Claims Act, N.J.S.A. 59:1-1 to 12-3? 



Argued: 11/9/11 

Decided:

A-82/83-10 U.S. Bank, N.A. v. Nikia Hough (067029) 

Where a lender makes a loan secured by a mortgage on an affordable housing unit that exceeds 

the amount permitted by the Uniform Housing Affordability Controls, N.J.A.C. 5:80-26.1 to - 

26.26, is the lender prohibited from seeking to foreclose on the mortgage and, if so, is the 

underlying debt void as against public policy? 



Argued: 11/7/11 

Decided: 

A-81-10 State v. Reynold Regis (066947) 

Must the State prove that defendant both failed to maintain his lane and that this affected the 

safety of other drivers to establish a traffic violation under N.J.S.A. 39:4-88(b)? 



Argued: 9/26/11 

Decided: 12/14/11 

A-80-10 Jamie Gannon v. American Home Products, Inc. (066899) 

Where a federal court determined in plaintiff’s prior case that he failed to establish that a polio 

vaccine contaminant causes cancer, does the doctrine of collateral estoppel bar him from relitigating 

causation in his state court action against the vaccine manufacturer? 



Argued: 11/7/11 

Decided: 

A-79-10 State v. Reynaldo Galicia (067018) 

Did the jury instructions and verdict sheet inappropriately limit the application of the 

passion/provocation defense? 



Argued: 11/30/11 

Decided: 

A-78-10 Julia Gere f/k/a Julia Gere Ricker v. Frank A. Louis, Esq. (066926) 

Is plaintiff’s legal malpractice claim barred under Puder v. Buechel, 183 N.J. 428 (2005), where 

she resolved a property dispute with her former spouse by entering into a settlement agreement 

that included a reservation of rights to sue her former attorney? 



Argued: 11/7/11 

Decided: 03/06/12 

A-77-10 W.J.A. V. D.A. (067093) 

In this defamation action based on Internet postings accusing a private plaintiff of engaging in 

sexual misconduct, are damages presumed or must the plaintiff prove actual harm to reputation? 


Posted 2/4/11 

Argued: 11/7/11 

Decided: 

A-76-10 State v. Earl J. Smith, III (066971) 

Does the victim of a motor vehicle accident have standing to appeal a provision in a municipal

court judgment of conviction that precludes using defendant’s guilty plea to reckless driving in a 

civil proceeding under Rule 7:6-2(a)(1)? 


Posted 2/4/11 

Appeal dismissed by order 5/12/11 

A-74/75-10 Donald T. Polzo v. County of Essex (066910) 

For purposes of liability under the Tort Claims Act, N.J.S.A. 59:4-2, can the County be deemed to 

have had constructive notice of a dangerous condition on the roadway’s shoulder based, in part, 

on its failure to have a proactive road inspection program? 


Posted 2/4/11 

Argued: 9/26/11 


A-73-10 Kamie S. Kendall v. Hoffmann-La Roche, Inc. (066802) 

Is plaintiff’s claim involving the medication Accutane® time-barred pursuant to the presumption 

of the Product Liability Act, N.J.S.A. 2A:58C-4, that FDA-approved warnings provide adequate 

notice of the risks? 


Posted 2/4/11 

Argued: 10/24/11 


A-72-10 May L. Walker v. Carmelo Giuffre (066969) 

Did the trial court err in enhancing attorney’s fees by forty-five percent under the circumstances 

presented? 


Posted 2/4/11 

Argued: 10/25/11 


A-70/71-10 State v. Alnesha Minitee; State v. Darnell Bland (066771) 

Was this warrantless search of the vehicle allegedly used in an armed robbery unconstitutional 

pursuant to State v. Pena-Flores, 198 N.J. 6 (2009), and did defendant Bland have standing to 

challenge the search because he had been an occupant before the police seized the vehicle? 



Argued: 1/17/12 

Decided: 

A-69-10 Kenneth Van Dunk, Sr. v. Reckson Associates Realty Corp. (066949) 

Under the circumstances of this case, which include a finding by the federal Occupational Safety 

and Health Administration that the accident was the result of a “willful violation” of its 

regulations, did the employer’s action constitute an “intentional wrong” that would preclude 

immunity under N.J.S.A. 34:15-8 of the workers’ compensation statute? 



Argued: 10/12/11 

Decided: 

A-68-10 State v. Stanley Cliff Smith a/k/a Jerry Johnson (066806) 

Did the prosecutor’s comments during summation constitute misconduct warranting a new trial, 

and should the co-defendant’s telephone toll records have been suppressed?



Argued: 9/26/11 

Reargued: 3/12/12 

Decided: 

A-67-10 State v. Stanford Yough (066950) 

Did the Appellate Division err in reversing the Law Division’s order denying a mistrial based on 

the victim’s prejudicial comments made during defense counsel’s cross-examination concerning 

identification? 



Argued: 9/27/11 

Decided: 11/30/11 

A-66-10 Borough of Sayreville v. 35 Club, L.L.C. t/a XXXV Gentlemen’s Club (067092) 

In determining whether N.J.S.A. 2C:34-7(a), which prohibits sexually oriented businesses within 

1000 feet of a public park or residential zone, is unconstitutional as applied, may the trial court 

consider whether out-of-State locations are adequate alternative sites for such businesses? 



Argued: 9/12/11 


A-65-10 Mazdabrook Commons Homeowners’ Association v. Wasim Kahn (067094) 

May a homeowners’ association constitutionally limit the display of homeowners’ signs to only 

“for sale” signs? 



Argued: 10/24/11 

Decided: 

A-64-10 State v. Kevin J. Hudson (066660) 

Did the court abuse its discretion in imposing a consecutive extended term where defendant was 

previously sentenced to an extended term for charges originating from the same indictment, but 

which involved a separate crime against a different victim and for which he had a separate trial? 



Argued: 9/12/11 


A-63-10 John Rogers v. Cape May County Office of the Public Defender (067048) 

For purposes of the notice provisions of the Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3, did 

plaintiff’s legal malpractice claim accrue when the Appellate Division reversed his conviction 

based on ineffective assistance of counsel or when the indictment against him was subsequently 

dismissed with prejudice? 



Argued: 9/27/11 


A-61/62-10 Paris Wilson v. City of Jersey City (066782) 

Are defendants entitled to governmental immunity from liability based on N.J.S.A. 52:17C-10 

(Title 52 immunity) or the particularized immunity provisions of the Tort Claims Act, N.J.S.A.

59:1-1 to 12-3, for plaintiffs’ claims that unheeded calls to the City’s 9-1-1 system contributed to 

the victims’ injuries and deaths? 



Argued: 10/12/11 


A-60-10 Selective Insurance Co. v. Arthur C. Rothman, M.D. (066630) 

May a medical insurer refuse to pay claims for needle electromyography tests (EMGs) performed 

by a physician assistant (P.A.) on the grounds that a P.A. is not authorized to perform EMGs 

consistent with N.J.S.A. 45:9-5.2, which provides that EMGs may only be performed by a person 

“licensed to practice medicine and surgery”? 



Argued: 10/12/11 


Corrected Opinion issued: 1/19/12 

A-59-10 Michael McDade v. Rodolfo Siazon (067086) 

For purposes of the notice provisions of the Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3, does 

the discovery rule apply so that plaintiff’s personal injury claim did not accrue until he learned 

that the pipe that allegedly caused his fall on a sidewalk was owned by the municipal utilities 

authority (MUA) and not the municipality to whom he sent timely notice and which had the same 

claims administrator as the MUA? 



Argued: 9/27/11 

Decided: 12/22/11 

A-57/58-10 State v. Krishana L. Hammond (066610) 

Can a defendant be placed on probation for a second-degree aggravated assault subject to the 

No Early Release Act, N.J.S.A. 2C:43-7.2; and if not, what impact does defendant’s probationary 

sentence have on the subsequent sentences imposed? 



Argued: 10/11/11 

Decided: Improvidently granted 11/3/11 

A-56-10 State v. Sally A. McDonald (066773) 

Where defendant was previously sentenced to an extended term, did the trial court abuse its 

discretion in sentencing her to a consecutive extended term for an offense committed prior to 

the former sentence? 



Argued: 9/12/11 


A-54/55-10 Vandella Davis v. Devereux Foundation (066800) 

Does an institution that cares for the mentally disabled have a non-delegable duty to protect its 

residents from harm? 



Argued: 9/12/11 

Decided: 2/29/12

A-53-10 Mark Tannen v. Wendy G. Tannen (066951) 

Under the circumstances of this case, is it proper to impute income to defendant based on her 

beneficial interest in a discretionary trust for purposes of determining plaintiff’s alimony and child 

support obligations? 



Argued: 9/13/11 


A-51/52-10 Cast Art Industries, LLC v. KPMG, LLP (066891) 

Did the plaintiff’s evidence satisfy the prerequisites of the Accountant Liability Act, N.J.S.A. 

2A:53A-25, for imposing upon an accountant a duty of care to a party other than the 

accountant’s client? 



Argued: 9/13/11 


A-49/50-10 State v. Demetrius M. Diaz-Bridges (067065) 

Did defendant invoke his right to remain silent by asking to speak to his mother or by stating 

that he wanted to go home and could not answer any more questions? 


Posted 12/14/10 

Argued: 9/12/11 


A-48-10 State v. James Mauti (067006) 

Does the spousal privilege apply to protect defendant’s wife from being compelled to testify 

against him under the circumstances presented? 


Posted 12/14/10 

Argued: 10/11/11 

Decided: 

A-45/46/47-10 Steven J. Winters v. North Hudson Regional Fire & Rescue (066968) 

Where the employer’s decision to terminate the employee for misconduct was upheld in 

administrative proceedings and on appeal, may the employee maintain a claim that he was 

terminated in violation of the Conscientious Employee Protection Act, N.J.S.A. 34:19-1 to -8? 


Posted 12/14/10 



Decided: 

A-44-10 Karen Wood v. New Jersey Manufacturers Ins. Co. (066643) 

Is there a right to a jury trial on a bad faith claim against an insurer under Rova Farms Resort, 

Inc. v. Investors Ins. Co. of Am., 65 N.J. 474 (1974)? 


Posted 12/14/10 



A-43-10 Vasil Kovalcik v. Somerset County Prosecutor’s Office (066529) 

Do records of a public employee’s coursework or training beyond those demonstrating the

minimum job qualifications constitute “personnel records” that are exempt from disclosure as 

“government records” under the Open Public Records Act, N.J.S.A. 47:1A-1 to -13? 


Posted 12/14/10 



A-41/42-10 Pomerantz Paper Corp. v. New Community Corp. (066531) 

Is this commercial seller subject to a claim of unconscionable commercial practices under the 

Consumer Fraud Act for billing the commercial buyer after delivery at prices the buyer claims 

were excessive? 


Posted 12/14/10 



A-39/40-10 Thomas F. Fox v. Jean Millman (066564) 

Is the equitable doctrine of laches available as an affirmative defense when the statute of 

limitations period has not expired? 


Posted 12/14/10 

Argued: 10/12/11 

Decided: 

A-38-10 Richard Luchejko v. City of Hoboken (066580) 

Does a condominium association have a duty to maintain an abutting public sidewalk free of 

dangerous conditions? 


Posted 11/24/10 

Argued: 3/15/11 


A-37-10 City of Wildwood v. Gary DeMarzo (065696) 

May a police officer for a municipality maintain that position on an unpaid leave of absence while 

also serving as an elected official on the governing body of the same municipality? 


Posted 11/24/10 

Appeal dismissed, certification improvidently granted. 3/24/11 

A-36-10 Fair Share Housing Center, Inc. v. N.J. State League of Municipalities 

(066228) 

Is the New Jersey State League of Municipalities, which is a nonprofit, unincorporated association 

of all New Jersey municipalities authorized pursuant to N.J.S.A. 40:48-22, a public agency 

subject to the New Jersey Open Public Records Act, N.J.S.A. 47A:1A-1 to -13, or the common 

law right of access to public records? 


Posted 11/24/10 



A-35-10 State v. Aaron P. Schmidt (066538) 

When a person agrees to submit to an alcohol breath test but then fails to provide an adequate 

sample, are police required to read the standard statement concerning the consequences of 

refusal pursuant to N.J.S.A. 39:4-50.2(e)?


Posted 11/10/10 

Argued: 3/28/11 


A-34-10 O Builders & Associates, Inc. v. Yuna Corp. of NJ d/b/a Baden Baden 

Restaurant (066490) 

Did the prior consultation between the defendant and plaintiff’s attorney create a conflict that 

required the attorney to be disqualified from representing plaintiff in this litigation? 


Posted 10/28/10 

Argued: 3/29/11 


A-33-10 Donald Sachau v. Barbara Sachau (066297) 

In deciding plaintiff’s application to enforce a provision in the divorce judgment requiring the sale 

of the marital residence when the parties’ youngest child completed college, was it proper to 

require that his share of the proceeds be based on the value of the home as of the date that the 

provision was actually triggered many years ago? 


Posted 10/28/10 

Argued: 3/29/11 


A-32-10 State v. George Calleia (066446) 

Under the circumstances of this case, was it reversible error to allow the State to introduce the 

murder victim’s hearsay statements to show defendant’s motive to kill, and was it improper for 

the prosecutor to use a stopwatch during summation to show how long it took for the victim to 

die? 


Posted 10/22/10 

Argued: 3/15/11 


A-31-10 State v. L.H. (066436) 

Where new DNA evidence leads to defendant’s conviction and sentence for a crime committed a 

decade earlier, and during the intervening period he was sentenced and completed custodial 

sentences on unrelated offenses, is defendant entitled to receive gap-time credits under N.J.S.A. 

2C:44-5b(2) for the prior completed sentences? 


Posted 10/22/10 

Argued: 3/14/11 


A-30-10 William W. Allen v. V and A Brothers, Inc. (066568) 

May employees be held liable for their personal participation in a corporation’s violation of 

Consumer Fraud Act (CFA) regulations without requiring plaintiff to establish grounds to pierce 

the corporate veil; and where the employees had been dismissed from the case and did not 

participate in the jury trial against the corporation, may they be bound by the jury’s findings on 

liability and damages? 


Posted 10/22/10 

Argued: 2/28/11 

Decided: 7/7/11

A-28/29-10 Debra A. Lombardi v. Christopher J. Masso (066488) 

Under what circumstances may a panel of the Appellate Division overturn the decision of another 

panel in a prior interlocutory appeal in the same case? 

Petition for certification granted 10/21/10 

Posted 10/22/10 

Argued: 3/28/11 


A-27-10 Peter Risko v. Thompson Muller Automotive Group t/a Hammonton Chrysler 

Jeep Dodge (066502) 

In this wrongful death case arising from a slip-and-fall, did the cumulative effect of plaintiff’s 

attorney’s comments during summation, including telling the jury that they would be “ignoring 

the law” if they had an issue with “a million dollar case,” violate the prohibition against 

suggesting a verdict? 


Posted 10/22/10 

Argued: 3/29/11 


A-25-10 Whirlpool Properties, Inc. v. Director, Division of Taxation (066595); and 

A-26-10 Pfizer Inc. v. Director, Division of Taxation (066595) 

Is N.J.S.A. 54:10A-6(B) of the New Jersey Corporation Business Tax Act, as amended in 2002, 

which is known as the “Throwout Rule,” facially constitutional under the United States 

Constitution? 


Posted 10/22/10 



A-26-10 Stipulation of Dismissal filed 5/25/11 

A-24-10 Division of Youth & Family Services v. K.A. (066372) 

Does striking a child several times on the shoulder with a closed fist, causing visible bruising, 

constitute abuse by “excessive corporal punishment” under N.J.S.A. 9:6-8.21? 

Petition for certification granted 10/14/10 

Posted 10/15/10 

Argued: 3/15/11 

Decided: 

A-23-10/A-26-11 In the Matter of Advisory Letter No. 3-11 and Opinion No. 12-08 of 

the Supreme Court Committee on Extrajudicial Activities (066271) 

Consistent with the Canons of Judicial Conduct, can a part-time municipal court judge also 

pursue a career as a comedian and actor, including appearing on a weekly television program, 

using a fictitious name? 

Petition for review granted 10/08/10 & 10/25/11 

Posted 10/08/10 & 10/26/11 

Argued: 

Decided: 

A-22-10 Denise A. Perrelli v. Bridget Pastorelle (066207) 

Does N.J.S.A. 39:6A-4.5(a) bar a person who was injured while a passenger in her own 

uninsured vehicle from pursuing an action for automobile accident injuries? 


Posted 10/08/10 

Argued: 3/14/11 

Decided: 6/1/11

A-21-10 Division of Youth & Family Services v. T.B. (066294) 

When T.B. left her sleeping four-year-old son home alone for two to three hours one evening 

under the mistaken belief that T.B.’s mother, with whom they resided, was also home asleep, did 

T.B. commit an act of “neglect” requiring her name to remain on the Division's child abuse 

registry pursuant to N.J.S.A. 9:6-8.11? 


Posted 10/08/10 

Argued: 2/28/11 


A-20-10 Gregory Russo v. Board of Trustees, Police & Firemen’s Retirement Sys. 

(065546) 

Did the work-related incident that directly caused this officer’s permanent psychological disability 

qualify as a “traumatic event” under the standards set forth in Patterson v. Board of Trustees, 

State Police Retirement System, 194 N.J. 29 (2008)? 


Posted 10/08/10 



A-18/19-10 State v. Roy Friedman (066332) 

When a defendant is sentenced to serve consecutive terms pursuant to the No Early Release Act 

(NERA), must the parole supervision periods imposed pursuant to N.J.S.A. 2C:43-7.2(c) run 

concurrently; and did the plea agreement provision that prohibited defense counsel from 

advocating for concurrent sentences violate defendant’s right to counsel and due process of law? 


Posted 10/08/10 

Argued: 10/11/11 


A-17-10/A-67-09 State v. Daniel Twian Brown (064807) 

Were defendant’s custodial statements, made after he was unlawfully arrested, admissible? 


Cross-petition granted 10/06/10 

Re-posted 10/08/10 

Argued: 10/12/10 


A-16-10 In the Matter of Nicholas R. Foglio, Fire Fighter (066482) 

Was the challenging candidate entitled to a more detailed explanation for the hiring authority’s 

decision to bypass him for individuals ranked lower on the certified eligible list? 


Posted 10/08/10 



A-15-10 GMAC v. Rosanna Pittella (066273) 

Pursuant to Rule 2:2-3(a) and Wein v. Morris, 194 N.J. 364 (2008), is an order compelling 

arbitration as to some but not all parties a “final judgment” for appeal purposes? 


Posted 10/01/10 

Argued: 1/31/11 

Decided: 3/23/11

A-14-10 State v. Danny Lazo (066199) 

Did the trial court err in admitting into evidence a prior arrest photograph of defendant and the 

testimony of a police officer about that photo and the officer’s inclusion of a different photo of 

defendant in the array shown to the victim? 



Argued: 9/13/11 


A-13-10 State v. Michael Hayes (065523) 

Was defendant’s right to counsel violated where the trial court denied his request to adjourn 

sentencing so he could obtain new counsel to file a motion to withdraw his guilty plea based on 

the alleged ineffective assistance of his first attorney during plea negotiations? 



Argued: 2/28/11 


A-12-10 Laura Higgins v. Mary F. Thurber (066001) 

Is plaintiff’s legal malpractice action barred by the entire controversy doctrine given plaintiff’s 

voluntary dismissal of similar claims in the prior probate action? 





A-11-10 State v. William E. Rivera a/k/a Juan Rivera (065943) 

Was it plain error for the trial court to not charge the jury on diminished capacity given the 

testimony of defendant’s expert regarding his psychological condition? 





A-10-10 Robert Buck v. James R. Henry, M.D. (065860) 

Does N.J.S.A. 2A:53A-41(a) of the Affidavit of Merit Statute require the dismissal of plaintiff’s 

medical malpractice claim under the circumstances presented? 



Argued: 1/19/11 


A-9-10 Sheila Aronberg v. Wendell Tolbert (066414) 

Does N.J.S.A. 39:6A-4.5(a), which bars a lawsuit for automobile accident damages by an 

individual who was operating an uninsured vehicle, also preclude a wrongful death claim by the 

estate of that individual? 



Argued: 3/14/11 


A-08-10 State v. Jamiyl Dock (066322) 

Does State v. Artwell, 177 N.J. 526 (2003), concerning the appearance of a defense witness in 

restraints, apply retroactively?



Argued: 1/18/11 


A-7-10 Too Much Media, LLC v. Shellee Hale (066074) 

Is this blogger, who operated a website she claimed was intended for investigative reporting on 

issues of public importance, and who posted information about plaintiffs on another website’s 

bulletin board, a journalist entitled to the protections of New Jersey’s Shield Law and the First 

Amendment? 





A-6-10 In the Matter of Anthony Stallworth, Camden County Mun. Utils. Auth. (066097) 

In this case involving the discipline of a public employee, did the Merit System Board err in 

determining that removal was too harsh and that a four-month suspension was appropriate? 





A-5-10 Magdy Abouzaid v. Mansard Gardens Associates (066223) 

Does this commercial general liability insurance policy require the insurer to provide a litigation 

defense to an insured who was sued for emotional distress under Portee v. Jaffee, 84 N.J. 88 

(1980), where the Portee claim does not allege physical injury to the plaintiff? 



Argued: 1/19/11 


A-3/4-10 Donald Nuckel v. Borough of Little Ferry Planning Board (066096) 

Under the circumstances, is a use variance required to permit the use of a small corner of a nonconforming 

lot to obtain access to a proposed hotel driveway on an adjoining lot? 





A-2-10 Division of Youth and Family Services v. R.D. (066070) 

In this Title 30 proceeding to terminate parental rights, was the doctrine of collateral estoppel 

properly applied to bar re-litigation of the issue of abuse based on findings made in a prior Title 9 

abuse-or-neglect proceeding? 





A-1-10 Paul Morgan v. Kristin Morgan n/k/a Kristin Leary (066280) 

Were the standards set forth in Bauers v. Lewis, 167 N.J. 91 (2001), for evaluating a custodial 

parent’s application to relocate with the children properly applied in this case, and did the 

Appellate Division err in reversing the three-year-old order denying a relocation application 

without remanding the matter to evaluate current circumstances?


Posted 9/9/10 

Argued: 11/9/10 


A-116-09 Policemen’s Benevolent Association, Local No. 11 v. City of Trenton (65,839) 

Is the arbitrator’s conclusion that officers must be compensated for reporting for roll call ten 

minutes prior to their shifts entitled to deference as a “reasonably debatable” interpretation of 

the parties’ collective bargaining agreement? 

Appeal as of right 


Argued: 1/31/11 


A-115-09 J.D. v. M.D.F. (065499) 

Under the circumstances, was there sufficient proof of intent to harass within the meaning of the 

Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35? 


Posted: 7/19/10 

Argued: 1/19/11 


A-114-09 International Schools Services, Inc. v. West Windsor Township (066060) 

Did this non-profit organization, which aids and promotes independent educational associations, 

forfeit its local property tax exemption under N.J.S.A. 54:4-3.6 by using some of its reserves, 

staff, and property to subsidize its related for-profit entities? 


Posted: 7/19/10 



A-113-09 State v. Marie Hess (066015) 

Was defendant denied her right to effective assistance of counsel because her attorney allowed 

her to enter into a plea agreement that precluded her from seeking a lesser term, failed to 

present mitigating evidence, and failed to object to victim impact evidence presented at her 

sentencing hearing? 


Posted: 7/16/10 



A-112-09 Joseph A. Donelson v. DuPont Chambers Works (065628) 

Does recovery of damages for economic loss associated with back and front pay require proof of 

actual or constructive discharge under the Conscientious Employee Protection Act, N.J.S.A. 

34:19-1 to -8? 


Posted: 7/16/10 

Argued: 12/1/10 at the Gloucester County Courthouse 


A-111-09 State v. Zarik Rose (065010) 

Was evidence that defendant previously was indicted and incarcerated on charges that he 

attempted to murder the victim admissible at defendant’s trial pursuant to N.J.R.E. 404(b), res 

gestae, or some other legal doctrine?


Posted: 7/16/10 



A-110-09 Frederick Voss v. Kristoffe J. Tranquilino (066153) 

Does N.J.S.A. 39:6A-4.5(b), the No Fault Act provision that precludes a DUI offender’s action to 

recover damages for losses resulting from a motor vehicle accident, bar the intoxicated 

motorist’s claim under the Dram Shop Act, N.J.S.A. 2A:22A-1 to -7, against the tavern that 

served him? 


Posted: 7/16/10 

Argued: 3/14/11 


A-109-09 State v. Jason Shelley (065815) 

Is this Goddard School for Early Childhood Development an “elementary school” within the 

meaning of N.J.S.A. 2C:35-7, which prohibits distribution of controlled dangerous substances 

within 1,000 feet of a school? 


Posted: 7/16/10 

Argued: 11/30/10 


A-108-09 State v. Germaine A. Handy (065941) 

Should evidence found on defendant during a search incident to arrest be suppressed because 

the police dispatcher incorrectly informed the arresting officer that there was an outstanding 

arrest warrant for defendant? 


Poste:7/16/10 



A-106/107-09 John P. Conway v. Borough of Florham Park (065873) 

Was plaintiff improperly removed as borough administrator pursuant to N.J.S.A. 40A:9-136 to - 

138 when the borough refused to renew his one-year contract without a two-thirds vote of the 

governing body; and does that statute permit a municipality to appoint an administrator for a 

fixed term even though it provides that the administrator serves “at the pleasure of the 

governing body”? 


Posted: 7/16/10 

Argued: 11/9/10 

Order filed 2/7/11 to Reverse and Vacate 

A-105-09 Ronald Durando v. The Nutley Sun (065978) 

Did plaintiffs in this defamation action provide evidence, sufficient to survive summary judgment, 

that the inaccurate newspaper headline was published with actual malice? 


Posted: 7/16/10 



Decided: 2/28/12

A-104-09 Tina Kieffer v. Best Buy (066002) 

Were the defendants’ indemnification agreements properly interpreted in allocating litigation 

costs among defendants? 


Posted: 7/16/10 

Argued: 11/8/10 


A-102/103-09 Kent Motor Cars, Inc. v. Reynolds and Reynolds Co. (065620) 

Was defendant entitled to the sanction of dismissal of the action under Rule 4:5-1(b)(2) because 

plaintiff failed to provide notice in its first pleading in prior litigation that defendant was a 

potentially liable party? 


Posted: 7/16/10 

Argued: 10/13/10 


A-101-09 State v. Dwayne Gillispie (064819) 

Where ballistic evidence established that the gun used in these killings was the same gun used in 

a prior armed robbery involving defendants and that evidence was properly admitted as relevant 

to the issue of identity, was the admission of additional evidence about the details of the prior 

robbery, including the shooting of three people, unduly prejudicial? 


Posted: 7/16/10 



A-100-09 Seidman v. Clifton Savings Bank (064904) 

In this derivative stockholder action challenging directors’ self-dealing, were these directors 

protected by the business judgment rule as a result of the shareholders’ ratification of their 

incentive and retirement plans? 


Posted: 7/16/10 



A-99-09 Gonzalez v. Wilshire Credit Corp. (65,564) 

Can plaintiff maintain a claim under the Consumer Fraud Act alleging fraud in the settlement of a 

mortgage foreclosure action? 


Argued: 1/18/11 

Decided:8/29/11 

A-98-09 State v. Kelvin McLean (65,716) 

Did the testimony of the State’s witness impermissibly express an opinion on defendant’s guilt 

requiring a retrial? 


Argued: 11/8/10 


A-97-09 Passaic Valley Sewerage Commissioners v. St. Paul Fire and Marine Insurance 

(65,793) 

Did the insured suffer a monetary loss that was covered under this insurance policy as a result of 

its agreement to provide services and equipment to a claimant in settlement?


Argued: 1/31/11 


A-96-09 Blessing v. Johnson & Johnson (65,714) 

Under the circumstances presented, was plaintiff’s products liability action alleging defective 

sutures timely filed by application of the discovery rule; and were defendants equitably estopped 

from asserting the statute of limitations? 


Argued: 11/9/10 

Dismissed as Moot 4/6/11 

A-95-09 State v. William Acevedo (65,609) 

Did the Appellate Division apply the appropriate standard of review in considering defendant’s 

challenge, by way of petition for post-conviction relief, to the trial court's determination to 

impose consecutive sentences? 


Argued: 11/30/10 


A-94-09 State v. Dawshawn Miller (65,612) 

Did the Appellate Division apply the appropriate standard of review in considering defendant’s 

challenge on direct appeal to the trial court's determination to impose consecutive sentences? 


Argued: 11/30/10 


A-92/93-09 State v. Eileen Ciancaglini (65,408) 

Under the circumstances presented, should defendant be sentenced as a third-time offender for 

driving under the influence pursuant to N.J.S.A. 39:4-50(a)? 


Argued: 11/8/10 


A-91-09 David Johnson v. Molly Johnson (65,371) 

Should the decision in Fawzy v. Fawzy, 199 N.J. 456 (2009), which allows for the arbitration of 

disputes relating to custody and parenting time under certain conditions, be applied 

retroactively? 


Argued: 9/28/10 

Decided: 12/10/10 

A-89/90-09 State v. Timyan Cabbell (65,129) 

Were defendants denied their constitutional right of confrontation when the trial court admitted 

into evidence the pre-trial statements of witnesses who refused to testify at trial? 




A-88-09 Yousef v. General Dynamics Corp. (65,715) 

Is New Jersey an appropriate forum to hear the claims of these New Jersey residents against a 

Florida resident and an American corporation for injuries sustained in a motor vehicle accident 

that occurred in South Africa? 

Leave to appeal granted 5/7/10

Argued: 10/26/10 


A-85-09 G.D. v. Bernard Kenny and the Hudson County Democratic Organization Inc. 

(65,366) 

May defendants, who were sued for libel for circulating political flyers referring to plaintiff's 

criminal history, assert truth as a defense where plaintiff's conviction had been expunged under 

N.J.S.A. 2C:52-1 to -32? 


Argued: 9/14/10 


A-84-09 Taddei v. State Farm Indemnity Co. (65,535) 

Where plaintiff’s uninsured motorist claim proceeds to verdict against the tortfeasor, is plaintiff 

barred on entire controversy grounds from filing a subsequent complaint against the insurer 

alleging bad faith in not settling plaintiff's claim? 


Dismissed: 9/10/10 at the request of the Parties 

A-83-09 Hopewell Valley Citizens’ Group v. Berwind Property Group Development Co. 

(65,505) 

Should the time for filing an action challenging this site plan approval be extended for six days 

under the circumstances presented? 


Argued: 10/26/10 


A-81-09 He v. Miller (65,337) 

Did the trial court err in remitting the plaintiff’s jury verdict for pain and suffering? 


Argued: 10/12/10 


A-80-09 State v. W.B. (65,373) 

In this trial on charges of sexual assault, was it reversible error to admit the testimony of the 

State’s expert on Child Sexual Abuse Accommodation Syndrome that few children lie about 

sexual abuse; and the testimony of the victim’s boyfriend relating the victim’s allegations under 

the fresh complaint rule? 


Argued: 10/13/10 


A-79-09 Division of Youth and Family Services v. P.W.R. (65,150) 

Did the trial court err in finding that defendant abused and neglected her sixteen-year-old 

stepdaughter within the meaning of N.J.S.A. 9:6-8.21(c), by slapping her and taking her 

paycheck, among other things? 


Argued: 10/13/10 


A-77-09 State v. Michael Gore (65,115) 

Was it plain error to admit into evidence, pursuant to the recorded recollection exception to the 

hearsay rule, N.J.R.E. 803(c)(5), a transcript of defendant’s unreviewed and unsigned 

confession?


Argued: 10/26/10 


A-76-09 Town of Kearny v. Discount City of Old Bridge, Inc. (65,070) 

Where a municipality proposes to condemn only a tenant’s leasehold interest under the Local 

Redevelopment and Housing Law (LRHL), N.J.S.A. 40A:12A-1 to -73, does the tenant have a 

right to individual notice of the proposal? 


Argued: 9/28/10 


A-74-09 County of Hudson v. State of New Jersey, Department of Corrections (64,676) 

Did the County’s amended complaint against the State seeking reimbursement for providing 

prison beds comply with the notice provisions of the Contractual Liability Act, N.J.S.A. 59:13-1 to 

-10? 


Argued: 9/27/10 


A-73-09 State v. R.T. (65,327) 

Where defendant’s trial strategy rested on the theory that he did not commit the assault but that 

the police cajoled him into stating that he was intoxicated, was defendant’s right to a fair trial 

prejudiced by the court charging the jury, over his objection, that intoxication could possibly 

negate an element of the crime? 

Notice of appeal filed 12/29/09 

Argued: 1/18/11 


A-72-09 State v. Damu Alston (65,298) 

Did police officers fail to scrupulously honor an equivocal request for counsel thereby requiring 

the suppression of defendant’s subsequent confession? 


Argued: 9/13/10 


A-22-09 State v. T.M. (64,396) 

Is the defendant, the live-in boyfriend of the child-victim’s mother, a “person legally charged 

with the care and custody” of the child and therefore guilty of first-degree endangering in 

violation of N.J.S.A. 2C:24-4b(3)? 


Argued: 

Decided: 

A-69-08 State v. Cecilia X. Chen (63,177) 

Where the victim identified the defendant in a photographic array, was defendant entitled to a 

pretrial hearing challenging the identification because of the victim’s prior individual efforts to 

confirm the identity of her attacker? 


Argued: 9/29/09 


A-14-08 Petition for Review of the Letter Decision of the Committee on Attorney 

Advertising, Docket No. 47 2007 (62,134)

Can a mediation center that employs attorneys who also perform legal services use the name 

“Alpha Center for Divorce Mediation” followed by the name of the attorney who is the managing 

partner consistent with RPC 7.1 and RPC 7.5 of the Rules of Professional Conduct? 

Petition for review granted 5/29/08 

Argued: 12/2/08 

Remanded by Order: 2/26/09 

Scheduling Order entered: 7/23/10 

Re-Argued: 1/4/11 

Decided: 

A-8-08 State v. Larry R. Henderson (62,218) 

Should the test for reliability of eyewitness identifications applied in Manson v. Brathwaite, 432 

U.S. 98 (1977), as followed by State v. Madison, 109 N.J. 223 (1988), be modified in light of 

recent scientific and other evidence? 


Argued: 1/20/09 

Disposition by Order: 2/26/09 - Jurisdiction Retained 

Re-Argued: 3/28/11 

Decided: 8/24/11

SUMMARY OF RECENT CASES IN WHICH THE 

NEW JERSEY STATE BAR ASSOCIATION 

HAS PARTICIPATED AS AMICUS CURIAE 

Prepared by: Sharon A. Balsamo, Esq. / May 2012 

Below is a summary of cases from 2011 and 2012 which the NJSBA has identified as affecting 

the practice of law and in which the NJSBA has been granted the right to participate as an 

amicus curiae. Docket numbers have been provided for those cases that are still pending, and 

actual citations have been provided for those cases for which a decision has been issued. 

Schoenefeld v. State of New York, Docket No. 11-4283-cv. This case challenges the 

constitutionality of a New York statute requiring non-resident attorneys to maintain an office in 

the state. The NJSBA submitted a brief drafted by David B. Rubin arguing that, as New Jersey 

has recognized through the evolution of its bona fide office rule, with today’s technological 

advancements, New York’s in-state office requirement for non-resident attorneys impermissibly 

discriminates against such attorneys. The case is pending in the United States Court of Appeals 

for the Second Circuit. 

In re: Complaint Filed by the Allamuchy Township Board of Education, Docket No. 9-11 

before the Council on Local Mandates. This case was a challenge to the Anti-Bullying Bill of 

Rights Act brought before the Council on Local Mandates as an unfunded mandate. The NJSBA 

submitted a brief drafted by Candida Griffin, John Keating, Felice T. Londa, Luanne Peterpaul, 

and Thomas H. Prol arguing that the Anti-Bullying Bill of Rights Act is exempt from review by 

the Council because it implements state constitutional requirements and provides a funding 

source for municipalities. The NJSBA further argued that the Act is not an unfunded mandate 

because it merely augments existing trainings, streamlines investigatory and disciplinary 

procedures and directs school districts to utilize existing resources or non-profit resources that 

are widely available. On January 27, 2012, the Council on Local Mandates voided the Act as an 

unfunded mandate, but delayed implementation of its decision until a written opinion was 

rendered. In the meantime, the Act was amended by the Legislature, and on March 26, 2012, 

those amendments were signed into law appropriating $1 million to fund the requirements under 

the Act. 

v. State of New Jersey, Docket No. 69,401. This case asks the Court to determine if the 

Pension and Health Care Benefits Act, P.L. 2011, c. 78, which increases public employees' 

contribution rates for their pension and healthcare benefits, operates to diminish judicial salaries 

and thereby violate article VI, section 6, paragraph 6 of the New Jersey Constitution. The 

NJSBA submitted a brief arguing that the intention of the constitutional drafters, the words of the 

New Jersey Constitution and other policy considerations require a determination that the Act, as 

applied to certain judges and justices, does violate the Constitution’s prohibition against 

diminishing judicial salaries. Certification was granted on November 10, 2011, and oral 

argument was heard on March 26, 2012. The Court’s decision is pending. 

v. Cahill, Docket No. 68,727. In this case, the Court is asked to determine whether defendant’s 

motor vehicle violations were properly dismissed on the basis that he was denied a speedy trial 

when there was a sixteen month delay in defendant being prosecuted on a DWI charge. The 

NJSBA submitted a brief, drafted by Jeffrey Evan Gold, arguing that the Appellate Division

properly affirmed the dismissal of the DWI for lack of a speedy trial since the delay in this case 

was inordinate and was caused solely by the state, and since defendant asserted his right to a 

speedy trial and was prejudiced by the delay. Certification was granted on December 8, 2011. 

Oral argument is pending. 

v. Santiago, Docket No. 68,651. This case questions whether an attorney who was terminated 

by his client can maintain an action against the client’s new attorney for tortious interference 

with contract under the circumstances. The NJSBA submitted a brief drafted by Shalom D. Stone 

and Stacie L. Powers arguing that a client’s right to discharge her attorney should be paramount; 

that claims between attorneys for tortious interference with contract should be permitted only 

where an attorney employed wrongful means; and the well-known, longstanding quantum meruit 

recovery process for discharged attorneys should not be altered. Certification was granted on 

November 18, 2011. Oral argument is pending. 

Accounting Dep't v. Township of Carney's Point, Docket No. 68,380. In this case, the Court 

will determine if a taxpayer should be permitted to amend a complaint challenging a tax 

assessment to add itself as sole plaintiff to avoid dismissal for lack of standing the complaint 

did not correctly identify the taxpayer and instead named a former tenant's accounting 

department, which never owned or leased the property but was listed on the municipal tax bill. 

The NJSBA submitted a brief in the Appellate Division drafted by Tom Olson, Cory K. Kestner 

and Richard P. DeAngelis, arguing that the taxpayer should have been permitted to amend the 

complaint. The Appellate Division disagreed. The NJSBA submitted a brief to the Supreme 

Court, drafted by Susan A. Feeney and Daniel P. Zazzali, again arguing that the taxpayer should 

be permitted to amend the complaint, noting the Appellate Division erred when it failed to 

recognize the Assessor’s specific mandates in keeping updated tax lists and that the petitioner 

properly relied on the tax lists prepared by the assessor. The NJSBA further argued that the 

Appellate Division decision was contrary to well-established law, violated principles of due 

process and uniformity, and could negatively impact municipalities. Certification was granted on 

November 4, 2011. Oral argument is pending. 

v. Lynch and Schofel, Docket No. 067683. At issue in this case is whether a parenting 

coordinator, who also is an attorney, may be awarded fees for time she spent responding to 

plaintiff’s motions and subpoenas and to his grievances against her under the Parenting 

Coordinator Pilot Program Implementation Guidelines. The NJSBA submitted a brief, drafted by 

Bonnie C. Frost, Ronald G. Lieberman and Andrea Beth White, arguing that trial judges should 

retain discretion to award fees to court appointed parenting coordinators to respond to grievances 

filed against and that the right to such fees is implied in the Parenting Coordinator Pilot Program 

Guidelines. Certification was granted on July 14, 2011 and oral argument was heard on April 25, 

2012. The Court’s decision is pending. 

for Review of the Letter Decision of the Committee on Attorney Advertising, Docket No. 

47 2007, Docket No. 62,134. In this case, the Court is asked to whether a mediation center that 

employs attorneys who also perform legal services use the name “Alpha Center for Divorce 

Mediation” followed by the name of the attorney who is the managing partner is consistent with 

RPC 7.1 and RPC 7.5 of the Rules of Professional Conduct. The NJSBA submitted a letter brief 

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arguing that the prohibition against law firm trade names in RPC 7.5 is constitutionally 

permissible and serves a substantial governmental interest which is outweighed by any benefit of 

eliminating the prohibition and, therefore, it should be preserved. Certification was granted on 

May 29, 2008, oral argument was heard on December 2, 2008, the matter was remanded on 

February 26, 2009 and a second round of oral argument was heard on January 4, 2011. A third 

round of oral argument is pending. 

v. Louis, 209 N.J. 486 (2012). In this case, the Court considered whether plaintiff’s legal 

malpractice claim was barred under Puder v. Buechel, 183 N.J. 428 (2005), where she resolved a 

property dispute with her former spouse by entering into a settlement agreement that included a 

reservation of rights to sue her former attorney. The NJSBA submitted a brief drafted by 

Christopher J. Carey, Amirali Y. Haidri, Theodore H. Hilke, Robert Hille and John W. Kavaney, 

arguing that, where the equitable considerations in Puder are present, the holding in that case 

should apply regardless of whether the lawyer negotiated the underlying settlement. On March 

6, 2012, the Supreme Court issued its decision, in which it found that this case was materially 

distinguishable from Puder and, thus, the Court permitted the legal malpractice to proceed. 

v. Tannen, 208 N.J. 409 (2011). At issue in this case was whether the New Jersey Courts 

would apply the Third Restatement of Trusts to determine whether it was proper to impute 

income to defendant based on her beneficial interest in a discretionary trust for purposes of 

determining plaintiff’s alimony and child support obligations. The NJSBA submitted a brief 

drafted by Martin L. Bearg, Lawrence A. Friedman, Richard H. Greenberg, Stephanie F. Hagan, 

Glenn A. Henkel, Richard Kahn, Jeralyn L. Lawrence, Daniel M. Serviss and Thomas J. Snyder, 

arguing that utilizing the principles of the Third Restatement of Trusts would make new law that 

is ill-advised and, under existing New Jersey trust principles, trusts cannot be compelled to make 

distributions, but imputation of income on assets can and should be properly considered. On 

December 8, 2011, the Supreme Court issued its decision affirming the Appellate Division in its 

application of existing trust law to the facts of this case, in its refusal to impute income to 

defendant, and in its reluctance to apply principles of the Third Restatement of Trusts. 

v. Tolbert, 207 N.J. 587 (2011). This case questioned whether .J.S.A. 39:6A-4.5(a), which 

bars a lawsuit for automobile accident damages by an individual who was operating an uninsured 

vehicle, also precludes a wrongful death claim by the estate of that individual. The NJSBA 

submitted a brief, drafted by Anthony Murgatroyd, arguing that the plain language of the statute 

and the longstanding distinctions between survivorship and wrongful death actions support the 

lower court’s ruling that a wrongful death action is not barred by the decedent’s status as an 

underinsured motorist. On August 29, 2011, the Supreme Court issued its decision, holding that 

when an uninsured motorist's cause of action is barred by N.J.S.A. 39:6A-4.5(a), an heir has no 

right of recovery under the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6. 

v. Miller, 207 N.J. 230 (2011). In this case, the Court considered whether a judge was permitted 

to use his own experiences in determining whether to remit the plaintiff’s jury verdict for pain 

and suffering. Gerald H. Baker drafted a brief on behalf of the NJSBA arguing that the trial court 

should not be permitted to rely on facts outside of the record in making a remittitur 

determination, but if it is, the court should be required to give notice to the parties and a fair 

3

opportunity to be heard. On May 12, 2011, the Supreme Court issued its decision, holding that, 

in this case, the trial court provided a sufficient explanation for remittitur and its decision was 

supported by the record. 

v. General Dynamics Corp., 205 N.J. 543 (2011). This case focused on whether New Jersey 

was the appropriate forum to hear the claims of New Jersey residents against a Florida resident 

and an American corporation for injuries sustained in a motor vehicle accident that occurred in 

South Africa. The NJSBA submitted a brief drafted by Amirali Y. Haidri arguing that defendants 

failed to show under the well-settled doctrine of forum non conveniens that the choice of forum 

was demonstrably inappropriate and, thus, these New Jersey residents were entitled to have the 

New Jersey courts hear their dispute. On April 11, 2011, the Supreme Court issued its decision, 

holding that the trial court properly weighed the public-interest and private-interest factors in 

finding that defendants failed to carry their burden of demonstrating that New Jersey is a 

"demonstrably inappropriate" forum. Therefore, the trial court did not abuse its discretion in 

denying the forum non conveniens motion and retaining the case in New Jersey. 

v. Ciancaglini, 204 N.J. 597 (2011). In this case, the Court considered whether a prior guilty 

plea entered by defendant on a charge for refusal should be regarded as a prior conviction to 

enhance sentencing on a charge of driving under the influence pursuant to N.J.S.A. 39:4-50(a). 

In a brief drafted by Jeffrey Evan Gold and James J. Gerrow, Jr., the NJSBA argued that neither 

the plain language nor the legislative intent of the DWI and refusal statutes allow for a prior 

refusal to enhance a DWI sentence. On January 19, 2011, the Supreme Court issued its decision, 

holding that the defendant’s conviction for refusing to take a breathalyzer test did not constitute a 

prior conviction for purposes of determining her sentence for a subsequent driving while 

intoxicated conviction. 

/sab 

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