ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] “[T]he breach of the implied covenant arises when the other party has acted consistent with the contract’s literal terms, but has done so in such a manner so as to have the effect of destroying or injuring the right of the other party to receive the fruits of the contract[.]”  Wade v. Kessler Inst., 172 N.J. 327, 345 (2002) (citations and quotations omitted).  Herein, the actions of the [...] as alleged did nothing to “destroy” Appellants’ rights to receive the “fruits” of the contract.  The “fruits” at issue in this case would be the profits Appellants would earn from their development and/or sale of a solar project.  However, Appellants lost that opportunity when they lost land control due to their own default under the Lease.  As a matter of law, Appellants will never be able to establish that they would have received “fruits” from the solar project because Appellants themselves lost control of the Property on which the solar project was to be built.  Therefore, the trial court properly dismissed these claims as against the [...].
[brief] Defendant [...] relies upon the Appellate Division’s decision in Fusco v. Board of Educ. of City of Newark, 349 N.J. Super., 455 (App. Div. 2002) to support its position that [...] is precluded from arguing on appeal that the trial court erred in granting summary judgment to the defendants in the first instance.  Defendant [...] quotes from Fusco wherein the Court held that an appellant “proceeds at his or her peril by insufficiently completing the Notice of Appeal or CIS. ” ([...] B11).  But, the plaintiff in Fusco appealed the denial of a motion for reconsideration filed more than four weeks after the Court had granted summary judgment to the defendant.  In support of the motion for reconsideration, the plaintiff proffered additional evidence of a Notice of Determination by the New Jersey Department of Labor Unemployment and Disability Insurance Services that had not been before the Court on the summary judgment motion.  The trial court denied the motion and the plaintiff appealed the Order denying the motion for reconsideration.  Since the plaintiff’s Notice of Appeal and Case Information Statement referenced only the motion for reconsideration, the Court held that it would address only the motion for reconsideration.  Id. at 461.  Importantly, the Court in Fusco recognized that it is critical to address the substantive issues raised in an appellant’s Case Information Statement to determine whether an appeal from the denial of a motion for reconsideration could implicate the issues involved in the initial grant of summary judgment.  The court stated:  We are mindful of the fact that in some cases a motion for reconsideration may implicate [***8] the substantive issues in the case and the basis for the motion judge's ruling on the summary judgment and reconsideration motions may be the same.  In such cases, an appeal solely from the grant of summary judgment or from the denial of reconsideration may be sufficient for an appellate review of the merits of the case, particularly where those issues are raised in the CIS.  Here, plaintiff’s Case Information Statement (CIS) referenced both the trial court’s grant of summary judgment in favor of the defendants as well as the denial of his motion for reconsideration (Pa13).  Further, plaintiff’s CIS referenced “Point I” as a challenge to the trial court’s grant of summary judgment (Pa13).  Certainly, there could be no confusion on the part of either the Court or the defendants as to the Orders from which [...] was appealing.  Even if the Order of January 6, 2023 is not explicitly referenced, both determinations by the trial court are referenced in the CIS (Pa13).  [...] itself referenced the trial court’s grant of summary judgment in its own CIS.  Accordingly, this Court properly should consider the plaintiff’s appeal from the grant of summary judgment in favor of the defendants.
[brief] The Figueroa Court made clear that the proper focus in analyzing the giving of such an instruction is whether, in the end, the jurors may well have felt that the judge was telling them, in a subtle or not-so-subtle fashion, that they must return a verdict:  “Based on our review of this record, we cannot agree that the jurors were not in fact under the impression that they would be required to continue to deliberate for as long as it might take to reach unanimity. ”  Id. at 242.  In such an instance, a trial judge effectively converts a benign Czachor instruction into a command as coercive as the one given in Allen.  Likewise, in *Adim*, 410 N.J. Super. at 427-428, the Appellate Division reversed convictions which resulted when the trial court gave almost all of the approved *Czachor* language in the instruction to the deadlocked jury, but also included language that appeared to emphasize the rendering of a verdict, and gave a summary of the evidence which appeared to underscore how uncomplicated the case was from an evidential standpoint.
[brief] (Da62-Da68).  [...] filed a second summary proceeding by way of Order to Show Cause and Verified Complaint against [...] seeking to vacate two additional arbitration awards on February 23, 2023.  The matter was assigned docket number [...].  (Da76-Da84).  On February 24, 2023, the Honorable [...], J.S.C. entered the Order to Show Cause setting forth a return date of April 21, 2023 (Da85-Da88).
[directive] Revised Form Promulgated by Directive #01-18, (02/23/2018), CN 10080 page 3 of 5 4.  (4)  Do you understand that the restrictions on where you can live may include [Yes]  [No] [NA] restrictions on residing in a home with minor children?  (5)  Do you understand that if you violate a condition of parole supervision for [Yes] [No] [NA] life, your parole may be revoked and you can be sent to prison for 12 to 18 months for each revocation that occurs while you are being supervised and that the prison term you receive cannot be reduced by commutation or work credits?  (6)  Do you understand that if you violate a condition of parole supervision for [Yes] [No] [NA] life on or after July 1, 2014, and you are indicted and convicted for that violation, you will receive a sentence of imprisonment up to 5 years or if the violation occurred before July 1, 2014, you will receive a sentence of imprisonment of up to 18 months and that the sentence you receive could be in addition to any prison term you may receive from the Parole Board for a violation of parole supervision for life?
[brief] ”  *N.J.S.A.* 43:16A-13(a)(1),(7).  Further, the primary obligation of the [...] is directing policies and investments to achieve and maintain the full funding and continuation of the retirement system for the exclusive benefit of its members.  *N.J.S.A.* 43:16A-13(a)(1).  In essence, the [...] Board serves as fiduciaries and thus have a duty to protect the interests of all members and beneficiaries of the Retirement System and its “financial integrity. ”  See *Mount v. Trustees of the Public Employees’ Retirement System*, 133 N.J. Super. 72, 86 (App. Div. 1975).  Unequivocally, the Legislature did not delegate to the [...] or [...] general subject matter authority concerning the validity and interpretation of settlement agreements between an employee and employer so as to constitute a legal forum for the purposes of triggering a severance provision.  Nor does the [...]’s or [...]’s delegated authority, concerning administration of the retirement system, imply an authority to do so.  Accordingly, the [...] and [...] are not a legal forum for purposes of triggering the severance provision of the Agreement; therefore, the Chancery Division’s decision must be reversed and Plaintiff’s complaint dismissed with prejudice.
[brief] Pa16.  The Order required the production of copies of all decisions with settlements entered in the NJOAL EDS cases between 1/1/13 to 4/2/15, the denial of an OPRA special service charge, and the award of attorneys’ fees and costs in the amount of $78,646.00.  Pa8.  The Defendants then sought a stay of the August 28, 2020 Order pending appeal.
[directive] Notwithstanding the provisions of Sections 5.2 and 5.3 of this Policy, and except as otherwise required by Section 5.5, an officer shall not activate a BWC, or shall de- activate a BWC that has been activated, if the officer knows or reasonably believes that the BWC would risk revealing the identity of an undercover officer or confidential informant or otherwise would pose a risk to the safety of an undercover officer or confidential informant, unless such activation is expressly authorized by a supervisor, or unless the exigency of the situation and danger posed to an officer (e.g., active shooter, actual use of police force, officer in distress, etc.) require that the encounter/incident be recorded, in which event the officer shall inform his or her supervisor that the recording risks revealing the identity of an individual as an undercover officer or confidential informant.  See also Section 9.3 (notation or “tagging” to indicate a BWC recording that raises special issues); Section 9.5 (prosecutor’s authority to seek protective order when complying with discovery obligations).  7.2.1  Notwithstanding the foregoing general rule prohibiting the recording of an undercover officer or confidential informant, in the event of a planned arrest/search warrant execution where it is expected that an undercover officer or confidential informant would be present (e.g., a raid where the undercover operative will be arrested to preserve his or her cover), BODY WORN CAMERA POLICY | January 2022 18  the County Prosecutor or designee, or the Director of the Division of Criminal Justice or designee, may provide specific instruction to any BWC-equipped officers participating in the operation on whether to activate their devices.  7.2.2  The BWC shall be activated/re-activated as soon as it is safe and practicable to do so if and when the risk of capturing the image of an undercover officer or confidential informant no longer exists.  7.3
[brief] Jury Instructions/Charges dictate how a jury is to view and weigh the evidence it has been presented.  In the instant matter, the jury had been presented with evidence of Aggravation, without objection; and as such, required an instruction as to how to treat such evidence.  Pursuant to N.J. R. 1:7-2:  “For the purpose of reserving questions for review or appeal relating to rulings or orders of the court or instructions to the jury, a party, at the time the ruling or order is made or sought, shall make known to the court specifically the action which the party desires the court to take or the party's objection to the action taken and the grounds therefor.  Except as otherwise provided by R. 1:7-5 and R. 2:10-2 (plain error), no party may urge as error any portion of the charge to the jury or omissions therefrom unless objections are made thereto before the jury retires to consider its verdict, but opportunity shall be given to make the objection in open court, in the absence of the jury.  A party shall only be prejudiced by the absence of an objection if there was an opportunity to object to a ruling, order or charge. ”  Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.  N.J. R. 2:10-2.  In the instant appeal, Appellant first objected to the issue of ‘Aggravation’ at the time the charge was brought to the Court’s attention as having been requested in pre-trial submissions, necessitated by the evidence, but inadvertently missed by the Court and the parties during the charge conference.
[brief] ]  The record clearly indicates the need for this instruction.  The State offered testimony showing that both [...] and [...] had driven the Chevy on prior occasions, and both had been pulled over while driving.  (3T38-23 to 39-20, 65-16 to 66-18)  As defense counsel argued at summation, the descriptions of the shooter were more consistent with Pierce’s appearance than with [...]’s appearance.  (7T57-18 to 58-25)  [...] is a 6’2” Black man weighing 210 pounds, and [...] is a 5’8” man from Puerto Rico weighing 180 pounds.  (3T40-1 to 4; 4T143-4).  In photos admitted into evidence, Pierce and [...] have strikingly similar hair styles and facial hair: both have short, buzzed haircuts with a hairline across the same part of their upper forehead, and both sport a mustache.  (Da17, Da25)  Descriptions of the suspect given by the witnesses were as consistent with Pierce’s appearance as they were with [...]’s appearance, if not more so.  Out of all the descriptions of the suspect, those given immediately after the incident – when the memories of the witnesses were most reliable – universally described the suspect as a Black man.  See Model Jury Charge (Criminal), “Identification: Out-Of-Court Identification Only” at 5 (revised July 9, 2012) (“Memories fade with time….the more time that passes, the greater the possibility that a witness’s memory of a perpetrator will weaken.
[brief] (Pa31 – Pa32).  Plaintiff intended to introduce evidence of her and [...]’s interactions with the defendant’s on-site manager, [...], moments after plaintiff’s fall which plaintiff would use to prove that the wet floor where she had fallen was slippery and dangerous, and had caused her to slip and fall.  The plaintiff and [...] could identify the defendant’s photographs depicting the mopped floor and the slip hazard sign, (Pa36 – Pa37), and describe the defendant’s actions.  Counsel indicated that he wanted to “give the court a heads up” and to enlighten the court of counsel’s concern of a possible objection under Evid. R. 407 (Subsequent Remedial Measures) to the use of this evidence.  (1T8-10 to 10-17).  Evid. R. 407 states:
[brief] Therefore, as the trial court properly determined, defendant's vehicle was at the center of this investigation and was an integral part of the crime scene and all the items found within were relevant and material.  (6T:65-16 to 23).  Second, the suspected murder weapon, along with another handgun was recovered in defendant trunk.  It was located under piles of clothing and secreted under a hard liner, in a built-in void within the trunk, and found wrapped in a t-shirt.  (5T:101-12 to 17; 102-17 to 25).  Connected to those guns were complete and discharged bullets, discharged cartridges, a speed loader (a device that helps load a revolver entirely all at one time), more ammunition belonging to a shot gun consisting of a box of shotgun shells and spent ones, as well.
[brief] It took over a year to learn the amounts of these policies because of the subterfuge and false and inconsistent answers provided by the [...] and their co-counsel, [...]  During this period of time [...] was rapidly dispersing these funds at amounts just below $10,000.  Some of these checks were cashed without signatures.  Evidence of this activity was provided by [...] (R-726).  [...] took out an insurance policy for $150,000 made payable to his father [...].  He had two policies that were made payable to his wife, [...].
[brief] The facts of this case are analogous to those in Cedar Point, supra.  There, the plaintiff property owners challenged a regulation which required them to open their private agricultural businesses, which were not open to the public, to third-party union organizers 120 days per year for three hours per day.  The plaintiffs argued that this imposition not only disturbed their operations, but also infringed upon their right to exclude others from their property.  The U.S. Supreme Court agreed and concluded that the regulation in question was a per se physical taking.  549 U.S. at 143.  Like the plaintiffs in Cedar Point, [...] is faced with an agency action that requires it to forsake its right to exclude others from property that is not currently open to the public, without any compensation in return.
[directive] DEPARTMENT LAW  PUBLIC SAFETY OF AND DIVISION  CRIMINAL JUSTICE OF [...] [...]  [...]  Lieutenant Governor Director  [...]  TELEPHONE: [...]  ATTORNEY GENERAL LAW ENFORCEMENT DIRECTIVE NO. 2024-03  TO: All Law Enforcement Chief Executives and County Prosecutors  FROM: [...], Attorney General  DATE: June 20, 2024  SUBJECT: Investigatory Use of Documentary Records and Physical Blood Samples
[brief] The Court in Viviano at 125, specifically held the following:  *The present case differs from those in which courts recognized an absolute privilege for germane statements made in the course of litigation because in this case false testimony is not the gravamen of plaintiff's claim.  The wrong for which she seeks redress is the concealment of evidence — the [...] memorandum.  That the [...] memorandum existed, that it was material to the plaintiff's personal injury action, and that the defendants did not disclose it are all facts whose proof did not depend on defendants' testimony.  The testimony which defendants gave during the discovery proceedings in the personal injury action was material only because it tended to prove that the defendants' concealment of the [...] memorandum was willful.*  Viviano clearly established an exception which [...]’s opposition brief entirely ignored.
[brief] A party may request that the court to compel another party to produce documents requested under Federal Rule of Civil Procedure, Rule 34.  See Fed. R. Civ. P. 37.  However, when the documents requested are not responsive to a party’s Requests for Production, then there is simply nothing to compel.  Although the parties agreed to certain search terms while collecting documents, those search terms do not override the scope of [...]’s actual discovery requests.  See Chen-Oster v. Goldman, Sachs & Co., No. 10-6950, 2014 WL 716521, at *1 (S.D.N.Y. Feb. 18, 2014).  As such, a plain reading of the discovery requests controls whether a document is responsive.  See Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614, 618 (D. Colo. 2007); Adolph Coors Co., Am. Ins. Co., 164 F.R.D. 507, 518 (D. Colo. 1993); Reinsdorf v. Sketchers U.S.A., Inc., 296 F.R.D. 604, 615 (C.D. Cal. 2013).  The Special Master has reviewed the 26 outstanding documents in camera to determine (1) if they are responsive to [...]’s RFPs and (2) if there is any indication [...] improperly withheld or failed to identify these documents in a way which would require some further explanation regarding their review and production procedures.
[brief] Plaintiff’s opposition to the Edison defendants’ motion for summary judgment was flawed for another fundamental reason as well.  Rule 4:46-2(b) (“Requirements in Opposition to Motion [for Summary Judgment]”) states:  A party opposing the motion shall file a responding statement either admitting or disputing each of the facts in the movant’s statement.  Subject to R. 4:46-5(a), all material facts in the movant’s statement which are sufficiently supported will be deemed admitted for purposes of the motion only, unless specifically disputed by citation conforming to the requirements of paragraph (a) demonstrating the existence of a genuine issue as to the fact.  An opposing party may also include in the responding statement additional facts that the party contends are material and as to which there exists a genuine issue.  Each such fact shall be stated in separately numbered paragraphs together with citations to the motion record.  (emphasis added)  Plaintiff did not come close to complying with that requirement.  An appellate court reviews an order granting summary judgment de novo, and in accordance with the same standard as the motion judge.
[brief] D.  The trial court correctly held, in the alternative, that [...] must arbitrate because he agreed to the terms of the [...] Deposit Account Agreement by using his bank account.  (PA008.)  On its first full page of text, the DAA states:  “When you sign an account application or use your account, including any account service, you . . . consent to the terms of this Agreement. ”  (PA092.)  One of the terms, of course, requires arbitration of all “claims, disputes, and controversies between or among [...] and [[...]].  . . ., whether in tort, contract or otherwise arising out of relating in any way to [his] account(s) and/or service(s).” (PA126.)  [...] does not dispute that he used his [...] account, and he cannot.  His account statements evidence his use of the bank account at issue.  (See PA080-087.)  Thus, [...] is bound to arbitrate his claims because he used his [...] bank account and thereby agreed to the terms of the DAA.
[brief] See State v. Hartley, 103 N.J. 252, 260-61 (1986) (explaining those are “separate” inquiries and that courts “must” not “blur[]” the lines of analysis).  From the start, his waiver was obtained through affirmative deception and minimization.  The detectives falsely told him, “Just like, you know, anybody else that come down here, we gotta read you your rights and things like that. ”  But [...] admitted that that was a lie.  In fact, the detectives do not Mirandize just “anybody” at the station; they did not do so for the eyewitness [...]; and [...] was not “simply brought in as a witness” but was, according to [...], a “person of interest as a shooter. ”  In reality, the objective facts known to the detectives show that he was already a true suspect:  They already knew (1) [...] publicly exposed him as an informant just eighteen days earlier (what they called his “motive”); his father identified him as the man driving and walking back and forth in the area within the forty-six minutes leading up to the shooting (what they called his “opportunity”); and (3) they believed that he was the actual perpetrator running away just after the shooting based on the men’s similar clothing in the videos.