July 2017 Archives | Bergen County, New Jersey, Law Blog
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July 2017 Archives

Automated Calls

AdobeStock_117586360-1-768x512.jpegWe're all too familiar with the calls to our cell phones from automated systems telling us about a vacation we won or how we can lower our credit card debt. But what you may not know is that those calls may be illegal. In Susinno v. Work Out World Inc., Susinno alleged that she received an unsolicited call on her cell phone from Work Out World Inc. ("WOW"). She did not answer the call, so WOW left a prerecorded promotional offer that lasted one minute on her voicemail. Susinno filed a complaint in the District Court of NJ claiming that the call and message violated the Telephone Consumer Protection Act ("TCPA") which prohibits prerecorded calls to cell phones. The District Court dismissed the case for lack of standing, but the Third Circuit reversed the decision on appeal.

Weapons Possession in the Home

shutterstock_237943873-300x200.jpgIt has long been held that one's home is given special treatment when it comes to self-defense. In State v. Montalvo, the New Jersey Supreme Court held that the defendant, Montalvo, had the right to possess a machete in his home to protect himself and his pregnant wife. After a confrontation with his neighbor, Montalvo feared retaliation and answered his front door with a machete in hand. Montalvo was charged with possessing a weapon for an unlawful purpose, N.J.S.A. 2C:39-4, and unlawful possession of a weapon, N.J.S.A. 2C:39-5. Montalvo was acquitted of possession of a weapon for unlawful purposes, but convicted of unlawful possession of a weapon, after the trial judge declined to provide a self-defense charge in the jury instructions. Specifically, the trial judge used language from State v. Kelly to inform the jury that self-defense only justifies unlawful possession of a weapon when a person uses said weapon after arming himself or herself spontaneously to repel an immediate danger.

Police Investigative Detentions

courtroom-898931_960_720-300x226.jpgIn State v. Rosario, the New Jersey Supreme Court analyzed the differences between police conducted field inquiries and investigative detentions. Defendant in this case was charged with third-degree possession of a controlled dangerous substance after being detained and questioned by a police officer while sitting in her car, outside of her apartment building. At the hearing for suppression of evidence obtained during the detention, defense counsel argued that the encounter was an investigative detention unsupported by reasonable and articulable suspicion, and that defendant was in custody subject to Miranda warning. The court denied the motion, finding the detention was supported by reasonable and articulable suspicion, and that defendant voluntarily offered statements and voluntarily gave controlled substances to the officer. Defendant appealed, but the Appellate Division affirmed, holding that an investigative detention began when the officer asked defendant if there was anything in the car that the officer should know about and, by that time, the officer had reasonable and articulable suspicion to support his actions.

Expert Allowed to Testify for Fair Trial

Copy-of-Fotolia_26659931_S-768x514.jpgMarjorie Stubblefield made headlines in 2015 when she was indicted on two counts of first-degree aggravated sexual assault of a mentally incapacitated young man, D.J. Ms. Stubblefield did not deny having sexual relations with D.J., but argued that D.J. gave consent with the assistance of facilitated communication. The jury found Ms. Stubblefield guilty, and she was sentenced to two concurrent twelve-year prison terms. Ms. Stubblefield appealed her conviction, and, in State v. Stubblefield, the Appellate Division reversed and remanded for a new trial, with a new judge.

Can I bring legal action if there is environmental damage to my property?

tree-338211_960_720-768x480.jpgMany property owners take good care of their land and never suspect that environmental damage will take place at the fault of another person. Unfortunately, either by accident or when someone does not comply with environmental regulations, other people and the land they live on can suffer. Many times, environmental damage takes place due to those who don't comply with state and federal requirements, whether they are construction companies, private citizens, or corporations.

Why do I need to have a home inspection?

construction-370583-768x512.jpgMaking the decision to purchase a home is one of the biggest investments you will make during your life. When you are spending such a large amount of money on a property, you are making a commitment for years. It is imperative that you get the home inspected prior to purchasing it so that you completely understand the condition of the property you are purchasing.

Authenticating- Admitting Twitter Posts

cell-phone-1245663-1-768x512.jpgIn State v. Hannah, the question on appeal was whether a twitter post (the "Tweet") allegedly written by defendant was admissible as evidence. The State authenticated the evidence through the victim's testimony confirming that the tweet was written by defendant because it displayed defendant's picture next to the Tweet, the twitter handle was known to belong to defendant and that the Tweet was a response to an on-going back and forth conversation between herself and defendant. On appeal to the Law Division, the court noted that there were two possible methods of authenticating social media posts, the Maryland approach and the more lenient Texas approach. The Maryland court held that the potential for abuse and manipulation of a social networking site by someone other than the account's creator required that such writings be subject to a greater degree of authentication than other writings. The Texas court held that circumstantial evidence, such as the internal content of the social media platform (i.e. - photos and past comments), were enough to allow a reasonable jury to determine the writing's authenticity.

Recovery of Uncompensated Medical Expenses

pexels-photo-1.jpgIn Haines v. Taft, the Appellate Division addresses the frequently debated question of whether or not a plaintiff is entitled to reimbursement of medical expenses that are outside the scope of their PIP policy but within the standard PIP limit of $250k. The court concludes that these medical expenses are admissible and that an injured party has the right to seek recovery of such uncompensated economic loss.

What are short sales?

fotolia_68636009.jpgUnfortunately, there are many instances where people face financial hardships that lead to the loss of the home. A short sale should be considered when the outstanding mortgage balance is greater than the property's value.

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