ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] (21T23-24 to 26-18).  After the jury returned to deliberations, defense counsel again raised the issue that two or three jurors had planned to begin vacations the next day, and again urged the court to advise the jury of the parties’ agreement to continue with a jury of less than twelve.  (21T26-21 to 27-6).  The court declined, noting that it might “influence the deliberations. ” (21T28-3 to 10).  After defendant rescinded his agreement to proceed to a verdict with a smaller jury, the court again declined to “speculate” whether the jurors were rushing, noting that “they have been diligent, they have been dedicated, and they have given no indication that there’s any concern, again, with them being able to deliberate or not deliberate. ” (21T34-7 to 15).  At approximately 4:28 p.m., having deliberated an additional two hours – more than five hours total – the jury sent its second note, which indicated that it was “still deadlocked;” it noted that two jurors were leaving for vacation on May 11, and that the jury had decided “some of the counts” in the indictment, and sought the judge’s advice.  (21T35-25 to 36-10; 21T45-6 to 13).  The judge brought the jury out at 4:43 p.m., and essentially repeated its Czachor instruction to continue deliberations, encouraging them to continue “for a little while longer. ” (21T40-22 to 42-12; 21T42-24 to 43-2).  Before sending the jury back, the judge told the jurors \textsuperscript{16} State v. Czachor, 82 N.J. 392, 405 n.4 (1980). that she would find out how late they could continue that day, and further told them they should feel free to notify the court again if they felt it necessary; but the judge also said that discussion of how to proceed at day’s end would be deferred.  (21T42-13 to 21).  After the jury left, the court noted that the jurors had “[i]n no way” indicated that they felt rushed, that none of them had raised hands when they were instructed to continue, and they “expressed a willingness to continue deliberations. ” (21T46-2 to 15).  At approximately 5:08 p.m., the court announced the third, and final, jury note, which indicated that the jury had reached a unanimous verdict.  (21T46-17 to 22).  Defendant was convicted on counts Two, Three, and Five, and was acquitted on counts One, Four, and Six.
[brief] On January 7, 2022, respondent was sworn in as a member of the [...] (Board).  Pictures of her swearing in as a Board member were posted on her public Facebook page.  Respondent utilized her Facebook account to advertise/campaign to become a member of the Board.  She also published a picture of herself on her Facebook account when she was sworn in as a Board member.  Respondent’s Facebook allows public access to certain parts which means that anyone in the community can see what is posted on the public aspect of her account.  By her own admission, some of respondent’s Facebook friends – which includes parents, teachers, students, and staff, are aware that she is a Board member.  (Ca021).  It is undisputed that Respondent used her Facebook account as a platform for her election to the Board.  It is also undisputed that she also used it to publicize that she had been elected to the Board and was a sworn member.  It is this very same public platform that she used post-election to reach this same constituency – however, now she used it as a sitting Board member which carries greater weight, to promote action that was contrary to the Boards’ obligations under the law.  Such action on her part was not only volatile of her ethical obligations as a Board member, it also compromised the Board.
[brief] In *Hess*, this Honorable Court unequivocally held that forfeiture of deferred retirement benefits is conditioned on an involuntary removal due to misconduct **related to the employment**.  Therefore, an employee is precluded from receiving deferred retirement benefits whenever the employee has been removed for cause on charges of misconduct that **relate to his or her official duties**.  See also *Borrello v. Bd. of Trs., Pub. Emps. Ret. Sys.*, 313 N.J. Super. 75, 78 (App. Div. 1998).  To this end, the Court determined Hess’ criminal conviction arising out of driving while intoxicated charges and subsequent removal from employment on account of the same was unrelated to her work and had an insufficient nexus to warrant the forfeiture of deferred retirement benefits.  *Ibid.*  While what constitutes “conduct related to employment” as it pertains to deferred retirement benefits has not been explored in a published opinion since *Hess*, Courts have discerned from the words themselves that there must be a **relationship or nexus** between the employment and the conduct leading to the termination.  *In re Jacalone*, 2015 N.J. Super. Unpub. LEXIS 1576 (App. Div. 2015) (Aa62-65).  Thus, a nexus between the position and the conduct at issue has not been found in several cases when official duties and/or employment relationships were not involved.  For example, in *State v. Hupka*, 203 N.J. 222 (2010), the Supreme Court found no forfeiture by an off-duty police officer who pled guilty to criminal sexual conduct with a female acquaintance.  *Id.* at 227, 239.  Concluding that the conduct did not involve or touch upon the defendant’s employment, the Court reasoned that “there was no relationship between defendant’s employment as a police officer, the trappings of that office, or his work-related connections, and the commission of the offense to which he pled guilty, or to his victim[.]” *Id.* at 239; see also *State v. Pavlik*, 363 N.J. Super. 307, 312 (App. Div. 2003) (finding an insufficient nexus where the public employee committed acts of domestic violence against his grandfather and resisted arrest).  In this case, the Appellant was not removed for charges of misconduct directly related to his employment, a necessary predicate for being deemed ineligible to receive deferred retirement benefits in accordance with *Hess*.
[brief] To the extent it is relevant to this case, Shoemaker stands for the proposition that factual disputes as to the existence of probable cause are a matter for the fact finder.  Id. at 479-80; see also Zalewski v. Gallagher, 150 N.J. Super. 360, 368 (App. Div. 1977).  Defendants also urge this Court to follow the Restatement of the Law (Third) Liability for Economic Harm § 21, which was not even published until 2020.  However, Defendants fail to cite a single case that has ever adopted that section or even explain why this Court should follow the Restatement when it contradicts New Jersey precedent.¹  Just like the Shoemaker Court, this Court should follow New Jersey precedent instead of the Restatement.
[brief] [...] testified that he and the other detective approached [...], identified themselves as police, “explained to him the narcotics-related investigation we were conducting and then I advised him of his Miranda rights. ”  (1T 76-15 to 25)  On cross-examination, [...] clarified that he “patted [[...]] down at that point and then . . . told him that we’re conducting a narcotics-related investigation and [that he was] going to advise you of your Miranda rights. ”  (1T 85-8 to 11)  [...] testified that [...] “responded that he understood his rights,” though agreed on cross-examination that did not “formalize” [...]’s response.  (1T 77-3 to 4, 85-21 to 22)  [...] testified that he then “got a little bit more specific,” telling [...] what [...]’s “partner had relayed . . . about what he had observed,” and [...] “expressed a willingness to cooperate with the investigation.  (1T  According to [...], [...] “stated that he had an amount of cocaine in the back seat of the car. ”  (1T 77-18 to 20)  When asked for more details, [...] responded, “[h]e said it was in the back seat.  That’s all I recall. ”  (1T 77-23 to 24)  [...] testified that “based on his statement and what my partner, [...], had observed,” [...] believed he had probable cause to search [...]’s car.  (1T 78-1 to 5)  He therefore went to the back seat of the vehicle and found a black backpack that contained “an amount of cocaine, a small amount of heroin, a pill container that had Oxycodone inside, a couple of digital scales and there was also a bag in there that contained rice. ”  (1T 78-8 to 16)  [...] further testified that “[a]s soon as [he] opened the back car door, [he] could actually smell the chemical odor of, that’s indicative of cocaine. ”  (1T 78-19 to 21)  [...] provided a different account of his encounter with the police that day.
[brief] This amorphous reference to “pipe” remained [...]’s one-trick-pony testimony throughout the entirety of her deposition.  See (3T71:20-25); (3T74:4-22); (3T105:23 – 3T107:2); (3T111:11); (3T116:11-14); (3T117:9); (3T123:25; 3T125:18)
[brief] Even assuming, *arguendo*, that the information at issue were to be considered a public document or record, the City submits that OPRA’s privacy provision should apply and therefore this information should not be subject to disclosure.  Therefore, the Plaintiff/Respondent should not have been the prevailing party and not entitled to attorney’s fees.  That being said, the City also opines that the lower court erred in finding that the City was responsible for attorney’s fees for failing to produce a document and/or record that is not in the City’s control or custody, but is personal information maintained by a private entity.  If the City were ultimately obligated to produce the records in question, the City would not be able to produce same.  This underscores the error made by the Court in finding that the information requested is public record subject to disclosure under OPRA, and finding that not only is a private entity subject to ORPA, but that a municipality is also responsible for somehow forcing said private entity to produce the documents or records.  As fully detailed above, there is nothing in the OPRA statute that contemplates a private entity being subject to OPRA, or how a fee award would work when the private entity has full custody and control of the records in question.  The lower court suggested during oral argument on the issue of fees that the municipal entity should be responsible for filing a suit against the private entity to either force compliance with the OPRA request or seek indemnification.  However, it is the City’s position that this course of action is outside the scope of the plain language of the statute and would place an unprecedented burden on governmental resources to be forced to constantly pursue litigation in this manner.  Therefore, the City submits that it should not be responsible for counsel fees in this matter, because the lower court’s fee determination was based upon an incorrect and incomplete finding that the information requested constitutes a public document or record and that private entities are subject to OPRA.
[brief] Here, it is undisputed that Plaintiff-Respondent [...] (“[...]”) was not licensed as a “consumer lender” when [...] engaged in the “consumer loan business,” as defined by N.J.S.A. 17:11C-2, by purchasing or otherwise acquiring the [...] credit account allegedly belonging to [...].  As a remedy, the NJCFLA provides that:  A consumer lender who violates or participates in the violation of any provision of section 3 . . . of this act, shall be guilty of a crime of the fourth degree.  A contract of a loan not invalid for any other reason, in the making or collection of which any act shall have been done which constitutes a crime of the fourth degree under this section, shall be void and the lender shall have no right to collect or receive any principal, interest or charges.  . . .”  N.J.S.A. 17:11C-33(b) (emphasis added).  Thus, the alleged debt was void upon the assignment to [...].
[brief] Plaintiff’s Counter Statement of Facts highlights overlooked or downplayed facts and presents them as revealed during the actual transaction.  A.  The Property and [...] Commercial Lease  Defendant offered for sale its mixed-use property located in Newark, New Jersey comprised of two offices, 63 apartments and a commercial space leased to a school.  (Da5, Da44, Da347.)  The school, [...] (“[...]”) had a lease signed on July 13, 2017.  (Da283.)  The rent accounted for approximately 17.65% of the gross rental income.  (Da45, Da347.)  The [...] lease (“Lease”) consisted of two parts, one labeled “PART I: GENERAL LEASE INFORMATION” the other “PART II: TERMS AND CONDITIONS”.  (Da282-315.)  It had a term beginning in approximately 2019 running to 2034, with two possible extensions to 2044.  (Da282  PART I, subpart II BASIC LEASE PROVISIONS  ¶¶(c), (d), (e) and (f). )  Rent was fixed for 5-year intervals during the initial term and any option periods, subject to a 12% increase occurring in years 6 and 11, and at the start of the first and second option periods, if exercised.  (Id.)  The greater of ten parking spaces, or as required by law, with at least five being in the off-street parking lot, were to be provided and Defendant was to use commercially reasonable efforts to obtain approval for a dedicated drop off and pickup area directly in front.  (Id. at ¶(j). )  A financing and approval contingency would sunset March 31, 2018.  (Id. at (l). )  B.
[brief] A.  Respondents Failed To Demonstrate, And The Trial Court Did Not Find, Substantial Similarity (214a – 219a).  As set forth above, matters are deemed to be “substantially related” only “if (1) the lawyer for whom disqualification is sought received confidential information from the former client that can be used against that client in the subsequent representation of parties adverse to the former client, or (2) facts relevant to the prior representation are both relevant and material to the subsequent representation. ”  City of Atl. City v. Trupos, 201 N.J. at 467 (emphasis added).  In City of Atlantic City v. Trupos, the Supreme Court considered whether a law firm’s representation of a municipality in defense tax appeals was substantially related to the law firm’s prosecution of an individual taxpayer's appeals against the municipality requiring disqualification under RPC 1.9(a).
[brief] Such malpractice is common knowledge.  Likewise, [...]’s negligent supervision of their attorney trust account does not require expert opinion.  Any person knows that if one is entrusted with the funds or anything of value of another, the entrusted party must ensure said funds or things of value are not distributed negligently or fraudulently to unintended recipients, otherwise they have been negligent in the supervision of those funds.  Furthermore, as the court held in Mazur v. Crane’s Mill Nursing Home, 441 N.J. Super. 168, 183, 117 A.3d 181, 191 (App. Div. 2015), “an AOM is not necessary to support a claim against a firm whose employee or agent acted negligently if the claim against the firm is solely based on a theory of vicarious liability or agency. ”  Since an AOM is not necessary to support a legal malpractice claim against a firm based on a theory of vicarious liability when that claim arises from the firm’s employee’s negligence, an AOM is certainly not necessary to support a legal malpractice claim against a firm based on a theory of vicarious liability when that claim arises from the firm’s employee’s intentional torts.  Therefore, in either case, whether [...] was negligent in their supervision of the attorney trust account or negligent based on a theory of vicarious liability for the intentional tortious actions of [...], no legal expert is required to explain [...]’s negligence.
[brief] [...] provides guidance on how to reconcile two seemingly contradictory statutory provisions in a manner that gives effect to both.  In that case, the statutes regulating the title-insurance industry (the “Title Insurance Act” or “TIA”) were in apparent conflict with N.J.S.A. 17:33A-8(g), a provision of the Insurance Fraud Prevention Act (the “Fraud Act”) that addressed the annual assessment (the “Fraud Assessment”) designed to fund enforcement activity under the Fraud Act.  The TIA purported to narrow the scope of the Department’s jurisdiction over title insurers by specifying in three separate provisions the provisions that applied to them.
[brief] (3T12-14 to 18; 3T14-25 to 15-12; Pa1-4).  The messages, played in full for the jury, contained profane language and threats, such as, “I will break your f**ng jaw mother f**er” (Pa2), and “play games with me pussy get your f**cking neck broke” (Pa3), and ”when I catch you in Northfield ima beat your ass…” (Pa3), and, “I will break your f**cking jaw [...] Lawyer pussy ass nig*...” (Pa3).  (3T17-5 to 18; The threats continued with repeatedly vulgar and sexually explicit language, including, “suck my dick,” (Pa2-3), and “Give me a call, pussy.  I’m not f**king p[l]aying no games…big pussy….I’ll come to your motherf**cking office in Northfield, how is that.  Either way, motherf**cker, I’m going to see you” (Pa2).  (3T21-6 to 10; Da9).
[brief] On April 29, 2020, Plaintiff filed a single count Amended Complaint sounding in negligence against [...] and [...].  On December 2, 2022, [...] moved for summary judgment (Pa191), which the trial court granted on January 6, 2023 following extensive oral argument.  (Pa21).  Plaintiff moved for reconsideration on January 11, 2023.  (Pa388).  On February 10, 2023, the trial court denied Plaintiff’s motion for reconsideration following extensive oral argument.  (Pa24).  Plaintiff filed a Notice of Appeal on March 20, 2023 (Pa1) and an Amended Notice of Appeal (to correct the date of the order appealed from) on March 23, 2023 (Pa7).  As made clear in both the Notice of Appeal and Amended Notice of Appeal (as well as Plaintiff’s Civil Case Information Statement (Pa12)), Plaintiff appeals only from the February 10 Order which denied Plaintiff’s motion for reconsideration.  (Pa7).  Plaintiff did not appeal the trial court’s January 6 Order granting summary judgment in favor of [...].  (Pa21).
[brief] In re Carter, 191 N.J. 474, 482 (2007).  It is well-established that when a reviewing court is considering an appeal from agency action, the limited standard of review is whether the agency’s decision was arbitrary, capricious or unreasonable; that it lacked fair support in the evidence; or that the agency did not follow the law.  See, e.g., In re Carter, 191 N.J. at 482; In re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008); Barrick v. State, 218 N.J. 247, 259 (2014).  Appellate review of an administrative agency’s final determination is limited and deferential.  See, e.g., In re Herrmann, 192 N.J. 19, 27 (2007) (citing In re Carter, 191 N.J. 474, 482 (2007)); Matter of Crown/Vista Energy Project, 279 N.J. Super. 74, 79 (App. Div. 1995), certif. denied, 140 N.J. 277 (1995); In re Stream Encroachment Permit No. 12400, 231 N.J. Super. 443, 454 (App. Div. 1989), certif. denied, 115 N.J. 70 (1989).
[brief] The individual Defendants provided answers to discovery, confirming they relied on the advice of counsel with regard to the Sale of Unit 74 to the Association.  It should be noted the Plaintiff did not even depose either of the individual Defendants in this action, as they had no personal knowledge of the 1987 terms of the transition of the Association to the homeowners.  See Pa 256-268.  All parties to the sale of Unit 74 were represented by counsel and voluntarily entered into the Contract of Sale of the Unit on February 1, 2016, beyond the six (6) year statute of limitations, as the within complaint was filed on April 6, 2022.  In addition, the individual defendants confirmed in discovery they had “no personal knowledge or recollection of events that occurred in 1987 during the Board’s transition of control from the Developers to the unit owners.  Rental of the unit had been in place for the past two (2) decades and then the parties knowingly and voluntarily agreed to sell and purchase the unit in late 2015 through respective counsel.
[brief] 1.  Disparate Treatment Relating to District Policy 1648.  First, Plaintiff alleges the disparate application of District Policy 1648, an policy that governed the use of masks in school during the COVID-19 pandemic.  223a through 231a.  District Policy 1648 mandates use of face masks unless outside the building or during snack time, and mandates that the “school district shall prepare and support teaching staff members in meeting the social, emotional, health, and academic needs of all students throughout the implementation of the Plan. ”  230a, ¶¶ 121-22.  Plaintiff alleges that to her knowledge, she is the only teacher who received a formal disciplinary meeting and letter in her file regarding violation of District Policy 1648.  230a, ¶ 126.  Plaintiff is aware that other teachers, including Defendant [...], had been the subject of multiple reports to the administration, including [...], for failure to wear a mask in accordance with District Policy 1648.  222a-223a, 230a-231a.  But Defendant [...] was not disciplined as a result of these reports.  230a, ¶ 125.  In contrast, a similar report about Plaintiff resulted in a meeting with the Superintendent on November 20, 2020, involvement of Union representatives, and a formal discipline letter in Plaintiff’s personnel file (“Disciplinary Meeting”).  227a-229a.  Not only did Plaintiff plead that the ultimate issuance of a discipline letter was retaliatory, given that other teachers did not receive the same treatment, but Defendants’ institution of the Disciplinary Meeting and what happened at the Disciplinary Meeting was part of the pattern of retaliation.  223a through 231a.
[brief] “Appellate review of the length of a sentence is limited. ”  State v. Miller, 205 N.J. 109, 127 (2011).  An appellate court “must not substitute its judgment for that of the sentencing court,” State v. Fuentes, 217 N.J. 57, 70 (2014), and is bound to affirm the sentence absent a “clear abuse of discretion. ”  State v. Roth, 95 N.J. 334, 363 (1984); see State v. Bolvito, 217 N.J. 221, 228 (2014).  As our Supreme Court has explained:  Appellate courts must affirm the sentence of a trial court unless: (1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not “based upon competent credible evidence in the record;” --- 4  As defendant acknowledges in its brief, this issue was neither raised below nor properly preserved by defense counsel.  or (3) “the application of the guidelines to the facts” of the case “shock[s] the judicial conscience. ”  [Bolvito, 217 N.J. at 228 (alteration in original) (quoting Roth, 95 N.J. at 364-65). ]  In general terms, judges are given wide but not unconstrained discretion at sentencing.  State v. Case, 220 N.J. 49, 53-54 (2014).  The New Jersey Supreme Court has articulated the extent and limit of that discretion as follows:  When the aggravating and mitigating factors are identified, supported by competent, credible evidence in the record, and properly balanced, we must affirm the sentence and not second-guess the sentencing court, provided that the sentence does not shock the judicial conscience.  On the other hand, if the trial court fails to identify relevant aggravating and mitigating factors, or merely enumerates them, or forgoes a qualitative analysis, or provides little insight into the sentencing decision, then the deferential standard will not apply.  [Id. at 65 (internal citations and quotation marks omitted). ]  Here, defendant was found guilty of second-degree Unlawful Possession of a Weapon, N.J.S.A. 2C:39-5, second-degree Certain Persons Not to Have Weapons, N.J.S.A. 2C:39-7, and third-degree Hindering Apprehension or Prosecution, N.J.S.A. 2C:29-3(b)1.
[brief] *See R. 4:67-2(b)* (providing that summary actions “shall be commenced, and proceedings taken therein, as in other actions, except as herein provided. ”); *see also, e.g., Matter of Estate of Perkel*, 2022 WL 17660550, at *4 (N.J. App. Div. Dec. 14, 2022) (Dra98) (finding that plaintiffs bore the burden of proof and failed to meet it in a will challenge that proceeded as a summary action); *C.E. v. Elizabeth Pub. Sch. Dist.*, 2023 WL 4571437, at *5-6 (N.J. App. Div. July 18, 2023) (Dra7-9) (plaintiff had burden of proof in a summary action under Rule 4:67-1).