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See weekly updates regarding New Jersey law on the following law topics:

New Jersey municipal court;
New Jersey personal injury;
New Jersey workers compensation;
New Jersey criminal law

Municipal Court

Topic: Motor Vehicles - Drunk Driving

176 N.J.L.J. 761
STATE V. THOMAS, to Appellate Div. A-1003-02T3 to Law Div. A-16-02

Where the roadblock targeted a designated area at a specified time and place based on data justifying the site for reasons of public safety and law enforcement goals, there were adequate warnings to avoid frightening drivers, advanced publicity was given to deter drunk drivers from getting in their cars in the first place and officially specified procedures were given for officers to follow when stopping drivers, the roadblock was constitutional and defendants’ motions to suppress is denied.

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Submitted by John F. Renner, Esq. - 7/8/02

Topic: Motor Vehicles - Drunk Driving

176 N.J.L.J. 45
STATE V. KASHI, to Appellate Div. 360 N.J. Super. 538 (App Div. 2003)

In a de novo appeal, a trial court may use a police officer’s observations to sustain a driving while intoxicated conviction even though the municipal court found the officer’s observations insufficient and convicted defendant only on the basis of Breathalyzer test results; contrary to the Court’s previous statement in State v Hessen, N.J.S.A. 39:4-50(a) does not describe four specific offenses, but creates one offense that may be proved by alternative methods.

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Submitted by John F. Renner, Esq. - 7/5/02

Topic: Motor Vehicles - Drunk Driving

BREATH-TEST INSTRUMENTS

STATE V. FOLEY et al., A45-02 Law Division, Camden County.

The Alcotest 7110 MKIII C is scientifically reliable and accurate and its breath-test readings may be introduced in evidence without the need for expert testimony but, because an unacceptably high number of people who tried to deliver a breath sample were charged with refusal to submit to a chemical test, no person who delivers a breath sample of .5 liters or greater may be charged with refusal until the State changes the software/firmware’s requirements and /or the instructions given to operators.

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Submitted by John F. Renner, Esq. - 7/3/02

Topic: Motor Vehicles - Drunk Driving

N. J. Division of Motor Vehicles v. Ripley, A-1935-0T3: Appellate Division

Where defendant was arrested in Utah and charged with driving while under the influence, and his Breathalyzer test allegedly showed a reading of .089% and he entered a guilty plea to "alcohol-related reckless driving," that offense, which does not include any specific or minimum level of intoxication or blood alcohol but merely requires some consumption of alcohol in connection with the reckless driving, is not substantially similar to New Jersey's offense of driving while under the influence; the Department of Motor Vehicles suspension of defendant's driving privileges for two years, based on the Utah conviction being a second offense, is reversed.

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Submitted by John F. Renner, Esq. - 4/24/04

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Personal Injury

TORTS - Charitable Immunity

Auerbach v. Jersey Wahoos Swim Club A-1696- 03T1; Appellate Division

“Educational purpose” in the Charitable Immunity Act has been broadly defined, and here, where defendant, a nonprofit corporation, has not deviated from its purpose of teaching swimming, the trial judge erred in focusing on its revenue sources and concluding that it was not organized exclusively for educational purposes; defendant is entitled to immunity under the Act in this action by plaintiff, who is a beneficiary of its works and who was injured in a fall on the way to the locker room after swimming.

Submitted by John F. Renner, Esq. - 10/4/04

TORTS – Limitations of Actions

Balliet v. Fennell et al, A-4220-01T3; Appellate Division

The nature of the fiduciary duty undertaken by a member of the clergy who establishes a counseling relationship with a parishioner, and the affront to the physical and emotional well-being of a parishioner who has his trust in the clergy member violated, warrants resort to the two-year statute of limitations governing actions for personal injuries; because plaintiff filed his complaint beyond two years, summary judgment in favor of defendants is affirmed.

Submitted by John F. Renner, Esq. - 10/4/04

TORTS - Damages – Informed Consent - Medical Malpractice

Linquito v. Siegel, A-4860-02T1; Appellate Division

Where defendant made an improper diagnosis that decedent did not have cancer, defendant was not required to advise decedent of the availability of other tests so that he could decide whether to go for additional testing; plaintiff’s recovery for the misdiagnosis is limited to her malpractice claim, and the doctrine of informed consent is limited to advice which must be given premised on a proper diagnosis; remanded for a new trial on the negligence-malpractice claim only.

Submitted by John F. Renner, Esq. - 10/4/04

TORTS - AGENCY – BABYSITTING – SETTLEMENTS – VICARIOUS LIABILITY

Newman v. Isuzu Motors America, Inc. et al, A 1609-02T3; Appellate Division

Where plaintiff suffered injuries in an auto accident and brought suit against the driver of the other car, who had been babysitting her granddaughter and was taking the child to its father, and plaintiff settled with the grandmother, against the father, it was error for the trial court to vacate the default judgment against him and enter judgment in his favor based on the finding that the release entered between plaintiff and the grandmother, as the father’s agent, extinguished any liability on his part as principal; although it is questionable whether agency law provides grounds for recovery and legal basis for vicarious liability can be demonstrated, the matter is remanded to determine whether vicarious liability can be imposed; in an agency context, a settlement and release of claims by the agent does not, as a matter of law, release the principal unless the intent to do so has been expressed or full compensation for injuries has been received, and the reasoning of McBride v. Ministar, Inc. holding that, as a matter of law, a release of an agent releases any claim against the agent’s principal, is unpersuasive.

Submitted by John F. Renner, Esq. - 10/4/04

AUTO INSURANCE – VERBAL THRESHOLD – AICRA

Villanueva v. Lesack, A-3474-02T2; Appellate Division

Under the Automobile Insurance Cost Reduction Act of 1998 (AICRA), plaintiff may maintain her suit for non-economic losses against the tortfeasor in a motor vehicle accident without demonstrating the the injury she sustained had a serious impact on her and her live because a displaced fracture is one of AICRA’s self-defined injuries, N.J.S.A. 39:6A-9a, and she presented sufficient objective evidence of a displaced fracture in an area of her cervical spine to surmount the verbal threshold for purposes of defendant’s summary judgment motion.

Submitted by John F. Renner, Esq. - 10/4/04

AUTO INSURANCE - Antique Automobiles – Pro-Rata Apportionment – UM/UIM

MetLife Auto and Home v. Palmer et al, A-27050-02T1; Appellate Division

Antique-automobile insurance policies that limit the use of the insured vehicle and are offered at a significantly reduced premium do no offend public policy, are valid, and are not subject to the antistacking provision, N.J.S.A. 17:28-1.1c; such policies may therefore include other-insurance clauses that exclude participation in pro-rate apportionment with other available insurance, and the trial court’s decision enforcing the language in the Antique Automobile Insurance Policy administered by plaintiff and covering an antique Thunderbird, which limited uninsured-motorist coverage to injuries sustained by occupants of the Thunderbird and excluded injuries sustained by the named insured or a family member while occupying an owned vehicle other than the antique vehicle covered by the policy, is affirmed.

Submitted by John F. Renner, Esq. - 10/4/04

AUTO INSURANCE – APPEALS - AUTO ARBITRATION – UM/UIM

Wylie v. Hamilton, A-559-02T1; Appellate Division

An underinsured-motorist carrier (UIM) who intervenes in the action between its insured and the other party to the accident, conducts discovery, and fully participates in the automobile arbitration proceeding, yet fails to file a de novo appeal following the arbitration after having consented to its insured’s settlement with the other driver, is subject to the judgment where the insured has moved for confirmation of the arbitration award; therefore, the judgment entered as a result of the confirmation award is valid and enforceable against the UIM carrier.

Submitted by John F. Renner, Esq. - 10/4/04

AUTO INSURANCE – ARBITRATION – TRIALS DE NOVO – UM/UIM COVERAGE

LoBianco v. Harleysville Insurance Co., MER-L-1756-03; Law Division, Mercer Co.

Where an auto-insurance policy states unambiguously that an arbitrator’s decision regarding uninsured-motorist coverage shall be binding unless a party wishing a trial de novo “demands the right to a trial” within 60 days of the arbitrator’s decision, the trial demand is a condition precedent to a trial de novo on uninsured-motorist damages; here, where defendant-insurer failed to strictly comply with its own policy’s notice requirement, substantial compliance is not enough to satisfy the contract, nor is the failure of notice excused because plaintiff-insured allegedly knew that defendant wanted a trial de novo, and plaintiff’s motion to confirm the arbitrators’ award is granted.

Submitted by John F. Renner, Esq. - 10/4/04

ARBITRATION -Auto Insurance – Equitable Estoppel – UM/UIM Coverage
Price v. New Jersey Manufacturers Insurance Co., A-3341-02T2; Appellate Division

Although an insurer has a contractual right to investigate a claim for UM coverage, when, as here, that investigation turns into a three-year odyssey and shows all the signs of a duly accepted claim, the insurer must put the insured on direct and unequivocal written notice that the investigation does not toll the running of the statute of limitations; absent such notice, equity demands that the running of the statute be tolled; the order directing defendant to submit to UM-coverage arbitration is affirmed.

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Submitted by John F. Renner, Esq. - 9/27/04

AUTO INSURANCE – Multiple Claims
Messec et al v. USF&G Insurance Company, A-0167-03T5; Appellate Division

Where the driver’s policy provided for limits of $100,000 per person and $300,000 per accident, but provided that coverage was excess to that of other policies, and the vehicle was covered under another policy, although three claims were settled within the vehicle’s policy limits, the trial judge correctly held that the driver’s policy provides coverage for the full $300,000 per accident; the settlement of some of the claims does not alter the point that the claim of more than one “person” was triggered.

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Submitted by John F. Renner, Esq. - 9/27/04

AUTO INSURANCE - Permissive Users
French v. Hernandez et al, A-3532-02T2; Appellate Division

Where the driver of the truck that struck plaintiff was an employee of its owner, was of driving age and knew how to drive, had been permitted limited use of the truck during working hours, had the keys to the garage where it and the ignition key were kept, and the owner did not file charges for forced entry into the garage or theft of the truck and never expressly forbade nonwork use of it, and there was no theft, the finding that the driver was a permissive user at the time of the accident is affirmed.

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Submitted by John F. Renner, Esq. - 9/27/04

AUTO INSURANCE - PIP Benefits – Stolen Cars
Labas v. Equivel-Molina, A-3343-03T1; Appellate Division

Where plaintiff was injured in an accident while the permissive driver of his father’s car, he is not subject to the verbal threshold option he had selected in his insurance policy that covered his stolen car since he has transferred title to the insurer and he no longer owns a vehicle; nor is he subject to the verbal threshold limitation in his father’s policy since at the time of the accident he was not a member of father’s household.

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Submitted by John F. Renner, Esq. - 9/27/04

AUTO INSURANCE – Verbal Threshold
Bennett v. Lugo, A-6840-02T5; Appellate Division

In this action for injuries to plaintiff’s lower back sustained in an auto accident, where he had suffered previous injuries to his lower back, the report of his treating orthopedist provided the required Polk analysis and established a credible, objective medical basis to substantiate his complaints and causally connected them to the current accident rather than to his prior medical condition, and the trial judge erred in dismissing the complaint for failure to satisfy the verbal threshold under AICRA.

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Submitted by John F. Renner, Esq. - 9/20/04

AUTOMOBILE LESSORS
Robinson v. Coia, A-5183-02T2; Appellate Division

As a self-insurer, the rental-car company is required to provide primary coverage despite a provision in its contract with the lessee that makes its coverage secondary to that of the lessee’s insurer; the company’s effort to avoid providing insurance coverage through the terms of its rental agreement violates public policy.

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Submitted by John F. Renner, Esq. - 9/20/04

AUTO INSURANCE – UM/UIM Coverage
Skeete v. Dorvious, at al, A-4620-02T1; Appellate Division

Unless changes in coverage are specified on the declaration page, a carrier’s notice of such changes is inadequate; defendant-insurer’s inundating its insured with almost 200 pages that focused on changes in PIP coverage and pre-certification under AICRA,

important changes had been made was inadequate, and the step-down provision is set aside; the dismissal of the complaint is reversed and the matter is remanded.

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Submitted by John F. Renner, Esq. - 9/20/04

AUTO INSURANCE – Anti Stacking - UM/UIM Coverage
Selective Insurance Co. of America v. Thomas et al, A-17 September Term; Supreme Court.

Here, where the husband and wife were injured in the same accident and both were named insureds under the same multiple policies, the anti-stacking statute does not limit them to collectively recovering the highest single limit of all applicable policies; nothing in the UIM statute or the policy language suggests that they be lumped together as “the insured” under the statute and each is entitled to the combined single limit in the Selective policy, subject to any other relevant policy considerations.

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Submitted by John F. Renner, Esq. - 9/20/04

TORTS – Ambulance Corps – Expert Testimony - Products Liability

Lauder v. Teaneck Volunteer Ambulance Corps et al, A-1529-02T2; Appellate Div.

Where decedent died from injuries suffered when he fell off a gurney, expert testimony is not required for a jury to determine whether refastening the chest strap would have prevented his injury, and the dismissal of the complaint against the hospital is reversed; however, the gurney could have collapsed for a number of reasons unrelated to a design or manufacturing defect, and plaintiffs were required to present expert testimony as to the cause of the gurney’s collapse, and the dismissal with respect to the manufacturer is affirmed.

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Submitted by John F. Renner, Esq. - 9/20/04

Topic: Affidavits of Merit

176 N.J.L.J. 868
NAGIM V. NEW JERSEY TRANSIT,et al, HUD-L 1547-00 Law Division

Based on the language of the Affidavit of Merit statute and the legislative purpose, the statute applies to the filing of a third-party complaint when the cause of action pled requires proof of malpractice or professional negligence, and, the obligation rests on the third-party plaintiff to file a timely affidavit of merit; here, the third-party claim for contractual indemnification relies on proof of professional negligence or malpractice by a licensed professional and because an affidavit was never filed, the claim is dismissed.

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Submitted by John F. Renner, Esq. - 7/8/02

Topic: Comparative Negligence - Damages

176 N.J.L.J. 88
WALDRON V. JOHNSON,et al, A-3240-02T5 Appellate Division

Where plaintiff was attacked in a mall by c0-defendant when she refused to let her cut in line, the attack was not so foreseeable or bore such a close causal connection to defendant-mall’s slow response to justify imposing the entire responsibility on it for her injuries; also, where the trial court entered two separate orders of judgment against each defendant, each below the monetary limit of the Special Civil Part ($15,000), the entire amount should have been calculated for eligibility of the additional 2% rate specified in R.4:42-11(a)(iii).

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Submitted by John F. Renner, Esq. - 7/8/02

Topic: Legal Duties - Seat Belts

176 N.J.L.J. 229
EDWARDS V. McBREEN, et al, A-2950-03T2 Appellate Division

Imposing a duty to wear a seatbelt on a rear-seat passenger to prevent injury to another person occupying the same vehicle is a novel question of law that involves significant policy considerations and there is insufficient information to support its imposition here; the matter is remanded for the development of a fact-sensitive record, including expert reports an studies quantifying the risks, foreseeability and severity o likely harm, and the percentage of back-seat passengers likely to use seat belts.

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Submitted by John F. Renner, Esq. - 7/8/02

Topic: Exculpatory Releases - Wrongful - Death Act

176 N.J.L.J. 570
Gersohn v. Regencey Diving Center, et al. A-6391-02T1 Appellate Division

An exculpatory release that had been executed by decedent as a condition of receiving scuba-diving instructions from defendants is unenforceable and void and does not preclude a decedent’s heirs from prosecuting a wrongful-death action; even i8f decedent had had the legal authority to bargain away his potential heirs’ statutory right, society’s interest in assuring that his dependents may seek economic compensation in a wrongful-death action outweighs his freedom to contract; to the extent that Libera is inconsistent, it is overruled.

-----Submitted by John F. Renner, Esq. - 7/5/02

Topic: Parental Immunity

176 N.J.L.J. 782
BUONO V. SCALIA, A-101 Supreme Court

The parental-immunity doctrine applies when the underlying conduct involves an exercise of parental authority or customary child care – there is no immunity if the circumstances reasonably suggest that the parent has acted willfully, wantonly, or recklessly; here, where defendant’s 5 year old son accidentally rode his bike into plaintiff’s 16 month old daughter, the decision of the Appellate Division, upholding the trial court’s finding that the parents in this case are immune from suit, is affirmed.

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Submitted by John F. Renner, Esq. - 7/3/02

Topic: Burdens, Damages

Reichert v. Vegholm et al., Appellate Div. A-450-02T3 Plaintiff alleged that she was injured in a fall and that shortly thereafter he injured the same body parts when she was rear-ended by another vehicle, and she settled her claims arising out of the fall and proceeded to a damages-only trial against the auto defendants. This is not a case of warranting a shifting of the burden of apportioning damages between the fall and the auto accident to defendants pursuant to Fosgate v. Corona and its progeny - it is a malpractice case, does not involve an entirely innocent plaintiff and a culpable defendant who has greater knowledge of the apportionment issues or is in a better position to marshal difficult apportionment proofs and does not involve a unitary injury caused by concurrent harms or the concurrent negligence of several defendants; rather, the case involves a simple aggravation of a pre-existing injury and the Judge's charge properly placed the burden of apportioning damages on plaintiff.

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Submitted by John F. Renner, Esq. - 4/12/04

Topic: Auto Insurance - PIP

Bowe v. New Jersey Manufacturers Insurance Company, A-4282-02T5; Appellate Division When an insurer asserts a pre-existing injury or condition as a defense, a plaintiff must prove, by a preponderance of the evidence, not just a substantial nexus between her injuries and the automobile accident for which she claims coverage but that the treatment for which she seeks Personal Injury Protection (PIP) benefits under N.J.S.A. 39:6A-4 was proximately caused by that accident; if that causal link is established, the PIP carrier is liable for the cost of the post-accident treatment, up to the coverage limits of the policy, even if that treatment addresses, in whole or in part, a pre-existing injury or condition; PIP-benefit cases brought under 39:6A-4 are distinguished here from line of cases examining the aggravation of a pre-existing injury or condition in the context of the threshold provisions in 39:6A-8a - to prevail on a PIP claim, a plaintiff need only prove that her preexisting injury or condition was aggravated by the accident for which coverage is sought; here, the trail judge correctly held that plaintiff failed to prove a causal connection of the need for surgery to the accident for which she sought PIP benefits.

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Submitted by John F. Renner, Esq. - 4/12/04

Topic: Auto Insurance - Step Down Provisions

Pinto v. New Jersey Manufacturers Insurance Company, A 2234-02T2; Appellate Division There is no bright-line rule for determining competing underinsured-motorist (UIM) claims in the context of multiple policies that contain UIM coverage - the critical factor in resolving such claims is the language of the policy, and if it is clear, unambiguous and uncontroverted by any other provision in the policy, courts should apply the policy language to the facts of the case; here, where the business-auto policy issued by defendant-insurer to plaintiff's employer contained a $1 million UM/UIM coverage limit and a step-down clause in its UM/UIM endorsement, which limited such claims to the UM/UIM coverage limit in any other policy having similar coverage listing the claimant as an individual named insured when that claimant was not an individual named insured under the business policy, the UIM -benefits claim of plaintiff-employee, injured while operating a motor vehicle owned by his employer and insured by defendant, is effectively reduced by the "step-down" clause to the limit of UIM coverage he elected in his personal auto policy, since he is listed as an individual "named insured" in his personal auto policy, he is not listed as a named insured in the business auto policy, the UIM coverage limit in his personal policy is less than that in the business policy, and the clause is clear, unambiguous and uncontroverted by any other policy provision; the order of the Law Division granting summary judgment in favor of plaintiff is reversed and the matter is remanded for entry of judgment in favor of NJM on the UIM-coverage issue.

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Submitted by John F. Renner, Esq. - 4/12/04

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Workers Compensation

Topic: Recreational and Social Activities

Lozano v. Frank DeLuca Construction, A-104 Sept Term, 2002 Supreme Court. When an employer compels an employee's participation in an activity generally viewed as recreational or social, that activity is work-related as a matter of law, and an employee injured by it, need not satisfy the two-prong test of N.J.S.A. 34:15-7 to receive workers' compensation; to recover under a theory of compulsion, the injured employee must establish that he engaged in the activity based on an objectively reasonable belief that participation was required - whether the belief is objectively reasonable will depend largely on the employer's conduct and must be assessed on a case-by-case basis; since on this record it cannot be determined whether the claim of petitioner, a mason, that his employer commanded him to drive the go-cart in which he sustained serious injury at the job site, after he had finished his work and was waiting for his employer to drive him home, was objectively reasonable, the judgment of the Appellate Division affirming the denial of benefits is reversed and the matter is remanded to the Division of Workers' Compensation for further proceedings.

Recreational and social activities that the employer merely sponsors or encourages are the type that the Legislature intended to exclude from workers' compensation coverage in adopting the 1979 amendments to N.J.S.A. 34:15-7 in those cases, the employee must establish that the activity is a regular incident of employment, and provides some benefit to the employer beyond an improvement in employee health and morale, or order to receive benefits.

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Submitted by John F. Renner, Esq. - 4/24/04

Topic: Intentional Wrongs - Security Guards

Fisher, et al v. Sears, Roebuck & Co., A-2672-01T5; Appellate Division Where plaintiff's decedent, a security guard, was killed in the parking lot of defendant-employer's store while transporting cash from one facility to another within the employer's complex at night, contrary to the employer's regional policy of transporting cash during the morning, and thee had been no prior incidents of violence at the complex to place the employer on notice of a real security problem and no complaints voiced by security personnel to management over the money-transfer procedures, the evidence does not show any egregious circumstances or deception and blatant disregard for plaintiff's well-being to fall within the intentional-wrong exception to the Workers' Compensation Act, and defendant's motion for summary judgment was properly granted; additionally, dangerous activity is a fact of life for security guards and is the type of hazard of employment that the Legislature anticipated would be compensable under the act.

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Submitted by John F. Renner, Esq. - 4/24/04

Topic: Flight Attendants - Post-Traumatic Stress Syndrome

Stroka v. United Airlines, A-474-01T3; Appellate Division The award of workers' compensation benefits to petitioner, a United Airlines flight attendant who had been scheduled to work Flight 93 on September 11, 2001, when it was attacked by terrorists and crashed, but who had requested and had been given that day off without pay, is reversed; although it is undisputed that she is temporarily totally disabled as a result of post-traumatic stress syndrome, and because an essential relationship exists between the job of flight attendant and the risk of hijacking, her injury is incidental to and arose out of her employment, here, where she was not working at the time of the crash or at the time she heard the news of the crash, she does not qualify for workers' compensation benefits since her condition did not arise in the course of her employment.

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Submitted by John F. Renner, Esq. - 4/24/04

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Criminal Law

NEWLY DISCOVERED EVIDENCE - Post-Conviction Relief

State v. Ways, A-23 September Term 2003; Supreme Court

Although deference is given to the post-conviction relief court’s adverse credibility findings regarding some of the newly discovered evidence presented at defendant’s PCR hearing, what remains of that evidence creates a probability that a jury would return a verdict different from the one reached at the first trial and the judgment of conviction is vacated and a new trial is ordered; on remand, the jury will benefit from the cross-racial identification charge suggested in Cromedy.

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Submitted by John F. Renner, Esq. - 9/10/04

RESISTING ARREST - Self-Defense

State v. Simms, A-1022-03T4; Appellate Division

Where there was substantial evidence from which the jury could have concluded that the force defendant used against the officer was in direct response to the officer’s use of unlawful force, the failure to charge the jury on the use of force in self-protection requires reversal; also, although the jury was told which elements had to be found for resisting arrest, resisting by flight, or resisting by physical force, it was not made aware of the significance of the findings in grading the offense.

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Submitted by John F. Renner, Esq. - 9/10/04

DUE PROCESS – Electronic Recordation – Interrogatories

State v. Cook, A-66 September Term 2002; Supreme Court

The due process requirements of the State Constitution do not include a duty of the police to record electronically a custodial interrogation; defendant’s unrecorded confession, made during his custodial interrogations, was admissible, and his conviction for murder is affirmed; pursuant to its supervisory authority over the criminal justice system, the Court directs the establishment of a committee to make recommendations regarding the use of audio and video recording of custodial interrogatories.

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Submitted by John F. Renner, Esq. - 9/10/04

EXPUNGEMENTS

In the Matter of L.B., Indictment No. 88-10-0049-1; Law Division, Hunterdon County

A pardon granted by the Governor permits expungement of a criminal record that would otherwise be barred by statute; also, for N.J.S.A. 2C:52-2c (barring expungements for conviction of the sale of a CSS or possession with intent to sell) to have meaning, it must apply to any conviction for possession with intent to distribute where the facts show that the intent was to sell the drugs, rather than to share them or distribute without selling them.

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Submitted by John F. Renner, Esq. - 9/10/04

GUILTY PLEAS - Model Jury Charges – Weapons Possession

State in the Interest of G.C., A-7 September Term, 2003, Supreme Court

Here, where the juvenile admitted to firing a paintball gun at a car, causing property damage, there is sufficient factual basis for his guilty plea to unlawful possession of a weapon; the Appellate Division erred in concluding that his plea could not be sustained because a conviction under N.J.S.A. 2C:39-5d requires that the accused knowingly possessed a weapon under circumstances indicating a likely threat of harm to a person; the Model Jury Charge relating to 2C:39-5d is referred for revision.

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