ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] [...] and his brother [...] are the owners of [...] in [...].  The Kelly family has owned the tavern, which has a “very family-oriented” atmosphere, for 72 years.  The tavern building consists of three floors: the main floor contains the bar and restaurant, the “third floor” contains the “financial office” and the “camera room,” and the basement contains a “party room” (the Tiffany Room), as well as “an office … where [the] money is. ”  This office is unmarked and kept locked, though a spare, unmarked key for the door known only to employees is “kept right behind the baron a little hook, but … tucked away. ”  The tavern has approximately six entrances, some dedicated for patrons, others for employee use only, and others for deliveries.  The ins and out of the tavern’s public and private spaces can be confusing.  As [...] admitted, “you have to know where you’re going. ”  Even in the tavern’s “workshop,” where tools like “spray paint and all of our bolts, nuts, and screws” were kept, “you can’t find the light switch.  Nobody knows where the light switch is. ” (7T:41-25 to 46-12; 54-11 to 54-16; 55-4 to 56-18; 62-19 to 68-11; 69-25 to 71-24).  The third-floor camera room was where the tavern’s 64-camera surveillance system saved its video recordings onto a hard drive.  The recording were maintained on two to four week intervals, at which time the videos would be deleted.  The videos recorded by these cameras included date and time stamps, but not audio.  The 64 surveillance cameras recording these silent videos were scattered throughout the tavern and were not hidden.  In fact some were placed by the tavern’s television sets.  In 2016, the tavern’s surveillance camera system was already “four to five years” old.  (7T:41-25 to 46-12; 54-11 to 54-16; 55-4 to 56-18 [...] opens at 7:00 a.m. and closes at 2:00 a.m.  Approximately 20 full-time and 40 part-time employees keep the tavern running, during either a morning shift, mid-day swing shift, or night shift.  It is the responsibility of a manager on the night shift to “lock up” the tavern: “lock the doors and lock the money up, close down, put the lights out. ”  Locking up the money entails taking the cash “left” from tip bags and change and putting it into one of “three wooden” combination-locked boxes located in the basement office.  The money secured in these boxes would be deposited in the bank “daily,” except for Sunday.  (7T:41-25 to 54-16; 73-12 to 82-4).  [...] only trusted six people to be a closing manager.  The defendant was one of those trusted managers.  Defendant had worked at [...] for 10 years as a part-time closing shift bartender.  Defendant was approximately “six-one … always had a beard.  Red, red hair … maybe 210 pounds,” with a chest tattoo.  During his employment at [...], [...] saw defendant “close to a thousand” times and watched him close via the tavern’s surveillance cameras “over 200 times. ”  [...]’s trust in the defendant ended in September 2015, when [...] fired the defendant for “[a]fter hours drinking,” something the tavern’s insurance company would not cover.
[directive] Is there anything, not covered by the previous questions, which would affect your ability to be a fair and impartial juror or in any way be a problem for you in serving on this jury?  If so, please raise your hand so that the attorneys and I can discuss it with you privately.  24.  Is there anything else that you feel is important for the parties in this case to know about you?  Standards for Jury Selection Promulgated by Directive #21-06 (December 11, 2006)  Page 22 of 29  Biographical  The following questions should be asked of each potential juror, one by one, in the jury box:
[brief] On December 19, 2019, correspondence was sent to Defendant-Respondent, [...], from [...], Legal Assistant to [...] of [...] indicating that “I represent your insured, [...], who was involved in a motor vehicle accident on January 10, 2018.  As a result of this accident, Ms. Vanrell sustained bodily injury. ” (Da016).  The December 18, 2019 letter from counsel for Plaintiff-Appellant, [...], went on to request a “certified copy of the insurance policy, which should include the declaration page, tort selection document, and all waivers.
[brief] Nonetheless, subsection (f) "affords relief only when 'truly exceptional circumstances are present.'"  Guillaume, 209 N.J. at 468 (quoting Little, 135 N.J. at 286).  "Because R[ule] 4:50-1(f) deals with exceptional circumstances, each case must be resolved on its own particular facts."  Baumann v. Marinaro, 95 N.J. 380, 395, 471 A.2d 395 (1984).  When considering a motion for relief under subsection (f), "a court's obligation is 'to reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case.'"  LVNV Funding, LLC v. Deangelo, 464 N.J. Super. 103, 109, 234 A.3d 319 (App. Div. 2020) (quoting Manning, 74 N.J. at 120).  Here, the record adequately supports the judge's findings of extraordinary circumstances warranting relief from the final judgment in plaintiff's favor.  She gave due consideration to the factors we outlined in Parker v. Marcus, 281 N.J. Super. 589, 658 A.2d 1326 (App. Div. 1995).  There, we said the [*12] "'important factors' to be considered in deciding whether relief . . . should be granted" under subsection (f) included "(1) the extent of the delay in making the application; (2) the underlying reason or cause; (3) the fault or blamelessness of the litigant; and (4) the prejudice that would accrue to the other party."  Id. at 593 (citing Jansson v. Fairleigh Dickinson Univ., 198 N.J. Super. 190, 195, 486 A.2d 920 (App. Div. 1985))
[brief] **POINT EIGHT  [Court’s interpretation would render statute unconstitutional]**  (Argued at Pa384 – Pa387)  Under the U.S. and New Jersey Constitutions, no State may pass a law that impairs the obligations of contracts.  The contract between [...] and [...] required [...] to perform work as a condition of receiving payment.  The obligation of [...] was to perform services as a prerequisite to payment, and the obligation of [...] was to pay [...] for services rendered.  [...]’s Counterclaim asks the court to force [...] to pay for services that were not performed, even though there is not a renegotiated contract enabling such a gratuitous arrangement.  The legal basis for the Counterclaim requires the court to interpret *N.J.S.A. 18A:7F-9(e)(3)* in a manner that violates the Impairment of Contracts Clauses under the U.S. Constitution and New Jersey Constitution, because if [...] is required to pay [...] without a renegotiated contract, then the statute, as applied, impaired the obligation of [...] to perform services as a prerequisite to payment, and impaired the obligation of [...] to pay [...] after services were rendered.
[brief] B.  [...] did not demonstrate that its dock will not hinder navigation or access to adjacent water areas.  [Aa89-Aa91.]  The Recreational Docks and Piers Rule also requires that the applicant demonstrate that “[t]he proposed structure and associated mooring piles do not hinder navigation or access to adjacent water areas. ”  *N.J.A.C. 7:7-12.5(b)*9.  This requirement goes on to state that “[a] hazard to navigation will apply to all potential impediments to navigation, including access to adjacent moorings, water areas and docks and piers. ”  *Id.*  In its March 27, 2017 policy compliance statement, which was part of its WFD permit application, [...] attempts to satisfy this requirement by summarily stating “[t]he proposed dock extension structure and proposed open type boat lifts will not hinder navigation or access to adjacent water area. ”  [Aa37.]  While a site plan was included with its submission, [...] provides no further justification for how Appellant’s navigation and access to and from its waterfront facilities and the navigational channel in Barnegat Bay will not be hindered.  [...] echoes this statement in its October 23, 2018 policy compliance statement by stating “[t]he proposed open type boat lifts will not hinder navigation or access to adjacent water areas. ”  [Aa0107.]  Again, while a site plan was included with its submission, [...] provides no additional support for how Appellant’s navigation and access to and from its waterfront facilities and the navigational channel in Barnegat Bay will not be hindered.  The 2017 WFD permit and 2019 WFD permit modification applications are barren of any further demonstration that Appellant’s navigation and access will not be negatively impacted aside from the summary conclusions that the navigation and access condition is met.  Furthermore, there is no analysis in the record concerning how the [...] concluded that the evidence in the record satisfied N.J.A.C. 7:7-12.5(b)9, aside from one sentence in the [...]’s decision to deny Appellant’s adjudicatory hearing request, which was issued approximately four years after the 2019 WFD permit modification was granted.  [Aa135; Aa89-Aa91.]  Again, pertaining specifically to the 2019 WFD permit modification, [...]’s blanket statement that navigation or access will not be hindered does not comment on, or otherwise reference, the location of the dock at issue in the modification application.
[brief] (Da1 to 7).  (Count Eight); second-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5(b)(1) (Count Nine); fourth-degree possession of large-capacity ammunition magazine, contrary to N.J.S.A. 2C:39-3(j) (Count Ten); fourth-degree possession of large-capacity ammunition magazine, contrary to N.J.S.A. 2C:39-3(j) (Count Eleven); second-degree possession of a firearm while engaged in certain drug activity, contrary to N.J.S.A. 2C:39-4.1(a) (Count Twelve); and, second-degree certain persons not to possess firearm, contrary to N.J.S.A. 2C:39-7(b)(1) (Count Thirteen).
[brief] At the same time, several people were approaching [...], threatening to “smoke him. ”  The man who had lifted his shirt to flash his gun was now holding his hand in his sleeve.  (23T 163-14 to 23, 167-12 to 16, 196-21 to 197-3)  [...] saw “no reason to have his hand in his sleeve” other than to hold a gun.  (23T 165-19 to 24, 166-19 to 167-8)  [...] added that he was “not stupid,” and suspected that a second man, who was “holding his hand down to his side,” was also carrying a gun.  (23T 171-15 to 21, 197-19 to 23)  In addition, two men were walking toward [...] and [...] from another direction.
[directive] Addendum A | December 2020  CEDs and Other Less-Lethal Devices and Ammunition  serious bodily injury by the display of a weapon or otherwise, so long as the officer’s purpose is limited to creating an apprehension that deadly force will be used if necessary, does not constitute deadly force.  3.5  Deadly Weapon.  Deadly weapon means any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury, or in the manner in which it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury.  See N.J.S.A. 2C:11-1(c).  3.6
[brief] Many years ago, before zoning or development laws, property could be developed and used at will without regard to public safety or planning.  There was no Municipal control, and no planning or zoning boards existed.  See \textit{Lake Intervale Homes Inc. v. Parsippany-Troy Hills}, 28 N.J. 423, 433 (1958); \textit{Loechner v. Campbell}, 49 N.J. 504, 56-511 (1967).  In the late 1800's into the early 1900's, to the extent "controls" existed on land use, those "controls" came about through Deed covenants, easements or restrictions.  The Map Filing Law in 1898 began to provide limited regulation in municipalities as to controlling the right to unilaterally use or develop property.  In the early 1900s, rudimentary legislative efforts were pursued to establish governmental regulation over development and use of property; however, their legality was uncertain.  In 1921, the U.S. Department of Commerce promulgated a Model State Zoning Enabling Act; thereafter adopted in whole or part by most States.  See 1 Anderson, \textit{American Law of Zoning} (4\textsuperscript{th} Ed.) § 2.21, p. 71-72.  New Jersey adopted its first rudimentary Zoning Enabling Law, patterned after the \textsuperscript{4}As noted earlier, by Opinion/Order dated December 1, 2022  [...] in Docket No.: [...] reversed and invalidated the Zoning Board Resolution.  The defendant [...] has filed a Notice of Appeal and will seek consolidation or coordination of this Appeal and that Appeal as they are inter-related.
[brief] For instance, in California, the State that invented strict liability, no duty to recall an FDA-regulated product (an over-the-counter medicine) exists unless the FDA has decided to authorize such action:  We conclude … as a matter of law, that defendant may not be held liable for failing to withdraw its product from the market….  A few scientific studies had shown [the risk plaintiffs allege] but … the FDA had determined that further studies were needed to confirm or disprove the association.  Pending completion of those studies, the FDA concluded that product warnings were an adequate public safety measure.  Although the FDA’s conclusion is not binding on us, we think it deserves serious consideration.  Ramirez v. Plough, Inc., 863 P.2d 167, 177-78 (Cal. 1993) (citations omitted) (emphasis added).  The New York Court of Appeals similarly rejected a purported “post-sale duty to recall or retrofit a product” in Adams v. Genie Industries, Inc., 929 N.E.2d 380, 385 (N.Y. 2010).
[brief] **APPELLANT’S PIERCE CLAIM IS PREEMPTED**  It is well settled law that a plaintiff cannot advance a common law wrongful discharge claim if it does not “seek to vindicate interests independent from those protected by the LAD,” *Bosshard v. Hackensack University Medical Ctr.*, 345 N.J. Super. 78, 90 (App. Div. 2001); see also *Catalane v. Gilian Instrument Corp.*, 271 N.J. Super. 476, 492 (App. Div. 1994) (“[T]he Supreme Court does not intend to allow a supplementary common law cause of action where NJLAD provides a remedy . . . because there already exists a statutory remedy for plaintiff, it would be inappropriate for this court to extend New Jersey common law in this case. ”).  Here, even though Respondent is entitled to summary judgment on Appellant’s NJLAD claims, her allegations do not seek to vindicate an interest independent from the NJLAD and are therefore preempted.  New Jersey Supreme Court precedent requires, and New Jersey state and federal courts routinely grant, dismissal of common law public policy causes of action if they are based on the same facts that support a discrimination claim under the NJLAD.  See *Santiago v. City of Vineland*, 107 F. Supp. 2d 512, 567 (D.N.J. 2000) (a “common law claim for wrongful discharge in violation of public policy are preempted when a statutory remedy under the NJLAD exists”); Mason v. Zoom Tech., Inc., No. [...], 2010 WL 3075556, at *8 (N.J. Super. Ct. App. Div. Aug. 3, 2010) (finding that the plaintiff’s Pierce claim was properly dismissed because it “relie[d] upon claims of harassment that lie with the scope of the LAD”).  Appellant asserts the same facts and allegations in support of her NJLAD and common law Pierce claims, providing no evidence or facts to separate the two, therefore, Appellant’s argument as to her common law claim is preempted.
[brief] From approximately November 2013 to March 2020, [...] served as a member of Board of Fire Commissioners for the Fire District.  (Da80).  Pursuant to the Fire District’s Bylaws, The Board of Fire Commissioners shall provide a member or officer of the Fire Company who is a defendant in any action or legal proceeding arising out of or incidental to the performance of his duties . . . with counsel and costs incidental to such representation for the defense of such action or proceeding.  (Da159) (emphasis added).2  In March 2020, [...] was not reelected to his position as Commissioner of the Fire District.  (Da80).  A.  The July 2019 OPRA Request & the August 2019 GRC Proceedings  On July 3, 2019, [...]3 sent an OPRA request seeking, inter alia, emails4 sent to and from [...]’s personal email address, and text messages ---  1  Because the facts and procedural history are intertwined, those sections have been combined.  2  This indemnification clause contains an exception for disciplinary proceedings initiated by the Board of Fire Commissioners or for criminal proceedings, which exception does not apply here.  3  On July 27, 2023, [...] filed a Letter of Non-Participation, indicating that he had settled all claims against the Fire District.  4  At some point during the negotiations leading up to the GRC complaint or sent to and from [...]’s personal or business cell phone which concerned “any fire Commissioner, former fire Commissioner, employee, Township employee or any other individual concerning fire Commissioner business. ” (Da21).  On July 15, 2019, an attorney on behalf of the Fire District responded to [...], assessing a special service charge “due to the extraordinary time and effort to process the potential volume of records. ” (Da18).  The attorney informed [...] that the hourly rate of $185 would be charged for the time spent by an attorney reviewing the records for redaction purposes.  (Da18).  Thereafter, though [...] and the Fire District communicated regarding the reasonableness of the special service charge, they were unable to reach a consensus.  (Da18-20).  On August 13, 2019, [...] filed a complaint with the GRC, under [...] (the “GRC Complaint”), naming the Fire District and the custodian of records, [...], as respondents to that complaint.  (Da9-15).  The main issue initially raised in the GRC Complaint was the reasonableness of the special service charge.
[brief] **  The State argues in the alternative that if *Fair* applies to [...]’s appeal, failure to instruct the jurors on the material elements of the crime was harmless error.  The State is wrong.  In criminal cases, failure to provide clear and correct jury instructions on material issues – such as the elements of the crime – is presumed to be reversible error.  *State v. Jordan*, 147 N.J. 409, 422 (1997).  “[P]roper jury instructions are essential to a fair trial. ”  *State v. McKinney*, 223 N.J. 475, 495 (2015) (quoting *State v. Green*, 86 N.J. 281, 287 (1981)).  Trial courts therefore have “an ‘independent duty . . . to ensure that the jurors receive accurate instructions on the law as it pertains to the facts and issues of each case. ’”  *State v. Cooper*, 256 N.J. 593, 608 (2024) (quoting *State* v. Reddish, 181 N.J. 553, 613 (2004)).  Nowhere is that duty “more critical [than] in a criminal case when a person’s liberty is at stake. ”  McKinney, 223 N.J. at 496 (quoting Green, 86 N.J. at 296).  Thus, a conviction must be reversed – even on review for plain error – if the jury was not properly instructed on an essential element of the offense.
[brief] .................................................................46  Delaney v. Dickey, 244 N.J. 460 (2020)  .........................................................................................30  DeVito v. Sheeran, 165 N.J. 167 (2000)  .........................................................................................21  Doe v. Poritz, 142 N.J. 1 (1995)  ..............................................................................................36, 37  In re Disapproval of Commercial Insurance Policy Forms of Insurance Company of North America, 264 N.J. Super. 228 (App. Div. 1993)  ..................37  Energy Rsrvs. Grp., Inc. v. Kan. Power & Light Co., 459 U.S. 400 (1983)  .........................................................................................51  Fed. Pac.  Elec. Co. v. N.J. Dep’t of Envtl. Prot., 334 N.J. Super. 323 (App. Div. 2000)  ...............................................................45  Fid. Union Tr. Co. v. N.J. Highway Auth., 85 N.J. 277 (1981)  .............................................................................................49  G.C. v. Div. of Med. Assistance & Health Srvs., 249 N.J. 20 (2021)  ...........................................................................................46  Green v. State Health Benefits Comm’n, 373 N.J. Super. 408 (App. Div. 2004) ............................................................20, 21  Grimes v. N. J. Dep’t of Corr., 452 N.J. Super. 396 (App. Div. 2017) .............................................................47  Hampton v. Dep’t of Corr., 336 N.J. Super. 520 (App. Div. 2001) .............................................................39  In re Highlands Master Plan, 421 N.J. Super. 614 (App. Div. 2011) .............................................................41  JPC Merger Sub LLC v. Tricon Enter., Inc., 474 N.J. Super.  145 (App. Div. 2022) .............................................................30 Lower Main St. Assocs. V. N.J. Hous. & Mortg. Fin. Agency, 114 N.J. 226 (1989) .................................................................20, 43, 44 Metromedia, Inc. v. Director, Division of Taxation, 97 N.J. 313 (1984) ........................................................................passim Moynihan v. Lynch, 250 N.J. 60 (2022) ........................................................................49 N.J. Animal Rights All. v. Dep’t of Environ. Prot., 396 N.J. Super. 358 (App. Div. 2007) ..................................................43 N.J. Dep’t of Labor v. Pepsi-Cola Co., 170 N.J. 59 (1980) ........................................................................34 N.J. DYFS & Family Servs. v. I.S., 214 N.J. 8 (2013) ........................................................................24 N.J. Election Law Enf’t Comm’n v. DiVincenzo, 451 N.J. Super. 554 (App. Div. 2017) ..................................................24 In re N.J.A.C. 7:1B-1.1, et seq., 431 N.J. Super. 100 (App. Div.), certif. denied, 216 N.J. 8 (2013)
[brief] Over the course of three (3) separate hearings before the Zoning Board of Adjustment, the Homeowners laid a record consisting of the testimony of three (3) separate experts and twenty-three (23) exhibits.  (Pa412; Pa496; Pa625; Pa100-101).  Though the Objectors cross-examined the witnesses, they offered no expert testimony of their own to contradict the Homeowners’ expert testimony.  (Pa627).  Among other things, the proofs adduced at the hearing demonstrated that the Subject Property is undersized.  (Pa527).  The Subject Property has frontages on two (2) separate streets.  (Pa526; Pa102).  84.2% of the Subject Property is classified as “critical” slopes which cannot be built on by ordinance.  (Pa527; Pa103; SDa003; SDa027).  There is a more than 50’ change in elevation from the front of the property to the rear.  (Pa444; Pa103).  The existing home was built with the benefit of variances (that run with the land) c. 1976.  (Pa531; Pa103; SDa016; SDa021).  The existing home is objectively undersized for the zone having received a variance to allow for the structure to be smaller than otherwise required by law.  (Pa531).  The existing home is built in a modern aesthetic and “non-contributing” to the [...].  (Pa527-528; Pa552).  Because the existing home is situated on steep slopes it: a) is solely accessible via a cantilevered bridge connecting [...] and the second story of the home; b) is set partially atop piles driven into the ground in the rear of the home with a void beneath the mass of the structure; and c) the first floor of the home is set below the level of [...].  (Pa528; Pa468; Pa532-533; Pa105; SDa029; SDa032).  The proposed improvements consist of a third-story within the existing footprint of the home (that will appear to be a second story from the [...] frontage).