ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] I.  STANDARD OF REVIEW ............................................................................20  II.  THE TRIAL COURT APPROPRIATELY DISMISSED JENKINS’S RETALIATION CLAIMS ON SUMMARY JUDGMENT.  ........................................22  A.  [...] failed to establish a prima facie case of CEPA retaliation .............24  1.  [...] did not have an objectively reasonable belief that [...]’s conduct violated N.J.S.A. 2C:33-4 .................................................................24  2.  [...]’s “complaints” cannot constitute “whistle-blowing activity. ”  ....28  3.  [...] has failed to show any genuine issues of material fact capable of supporting any causal connection between her “complaints” and her termination ........................................................................................................31  B.  The Trial Court Correctly Found that [...] Possessed a Legitimate, Non-Discriminatory Reason for Terminating [...] ........................................37  C.  [...] Cannot Show that Defendants’ Legitimate, Non-Retalatory Reason for Terminating Her was Pretext .................................................................39  III.  THE TRIAL COURT DID NOT MISAPPLY THE SUMMARY JUDGMENT STANDARD .................................................................................................42  IV.  NEITHER CONICELLO NOR LAMBRECHT RETALIATED AGAINST JENKINS ..................................................................................................................48  CONCLUSION .................................................................................................................................50
[brief] In contrast, when a vehicle “move[s] right or left upon a roadway” or starts or backs, no signal is required, but the movement is prohibited unless it can be made with safety.  Because a car necessarily moves right or left upon a roadway to accomplish a lane change, N.J.S.A. 39:4-126 prohibits unsafe lane changes.  The statute does not, however, require a signal when making a lane change, as a lane change does not constitute a “turn” within the meaning of the statute.  Nor, of course, must a vehicle stop or decrease speed to accomplish a lane change, such that a signal would be required.  The ordinary meaning of the word “turn” demonstrates that the Legislature did not intend for the word “turn” to encompass a lane change.  In the context of driving a car, it is commonly understood that a “turn” involves a change in course or direction.  See *The American Heritage Dictionary*, https://ahdictionary.com/word/search.html?q=turn (last visited Nov. 27, 2023).  (defining the verb “turn” as “[t]o change the direction or course of”).  It is apparent that the Legislature used the word “turn” in a manner consistent with its common meaning in light of its inclusion of the phrase “or otherwise turn a vehicle from a direct course” in the first sentence of the statute.  See N.J.S.A. 39:4-126.
[brief] Plaintiffs’ Property possessed contaminated soil and also emitted harmful vapors in a public food establishment.  This distinguishing factor could not be any clearer.  In United States v. 4.0 Acres of Land, 175 F.3d 1133, 1139 (9th Cir. 1999), that the Authority relied upon and to which Plaintiffs did not dispute in prior motion practice, makes clear that “if the taking has in fact benefitted the remainder, the benefit may set off against the value of the land taken. ”  The plain reading of this case law shows that the Court did not err in disregarding the intent of the law surrounding governmental takings but instead elaborated on it during oral argument suggesting that a compare and contrast of the Property value would likely result in monies being owed to the Authority.  Plaintiffs however suggest that the Court set an inappropriate precedent in that public entities can do whatever they want on private property without legal process, so long as that entity, thereafter, claims to have conferred a benefit on the property owner.  By this statement and at the February 28, 2024 oral argument for the motions for summary judgment, Plaintiffs acknowledged that the Authority’s remediation efforts did in fact confer a benefit to the Property owner, and it was heavily argued that in all reality it would likely be the Authority that would be owed money from the Plaintiffs if a compare and contrast of the Property value pre- and post-remediation was conducted.
[brief] STANDARD OF REVIEW  Pursuant to N.J. Const. art. VI, § 5, para. 4, the New Jersey Supreme Court has adopted R. 2:2-3(a)(2), which contemplates that every proceeding to review the action or inaction of a state administrative agency would be by appeal to the New Jersey Appellate Division.  Thus, the rule mandates the exclusive allocation to the Appellate Division of review of both final decisions or actions of any state administrative agency or officer, and the validity of any rule promulgated by such agency or officer.  R. 2:2-3(a)(2).  Vas v. Roberts, 418 N.J. Super. 509 (App. Div. 2011).  Under New Jersey Court Rules, appeals may be taken to the Appellate Division "to review final decisions or actions of any state administrative agency or officer[]"  R. 2:2-3(a)(2).  Appellate Courts do not render advisory opinions or function in the abstract.  N.J. Civil Serv. Ass'n v. State, 88 N.J. 605, 612 (1982).  The Appellate Court need not defer to the agency’s determination on purely legal issues.  "[A]lthough the determination of an administrative agency is entitled to deference, our appellate obligation requires more than a perfunctory review."  Blackwell v. Dep't of Corr., 348 N.J. Super. 117, 123 (App. Div. 2002).
[brief] Appellant Attends Inpatient Rehabilitation/Sick Leave Policy Violation  Appellant checked himself into the [...] drug rehabilitation facility (“[...]”) in Florida on October 22, 2018, while out on sick leave for his third sinus surgery.  [Pa155].  Appellant did not request permission from [...] to attend inpatient drug rehabilitation, and did not inform [...] he attended [...] on October 22, 2018 through November 12, 2018, because he was “embarrassed” and felt “entitled” to keep it a secret.  [Pa155; 4T190:17 – 4T191:10].  Appellant could not get his story straight when asked about why he attended [...], initially alleging he did not feel like he needed to go to rehab at all [4T169:10-12] and that he went voluntarily to detox from his medication.  [4T187:6-8].  Appellant then stated he went while out on sick/stress leave after the third sinus surgery to “kill two birds with one stone” and get it over with in time before he was supposed to report back to work [4T, 188:11-21].  Appellant then stated that the reason he went was because [...] “was going to send me anyway most likely” [4T188:23-24].  Appellant again changed his answer, stating that he “wanted to go there and get the help that I thought I needed, and I didn’t want them [[...]] to know about it” [4T191:6-7].  The [...] found that Appellant violated the Performance of Duty Policy by failing to inform [...] about attending [...] [Pa94] and violating the Sick Leave Policy by attending [...].
[brief] "[T]estimony in the form of an opinion, whether offered by a lay or an expert witness, is only permitted if it will assist the jury in performing its function.  Opinion testimony of either sort is not a vehicle for offering the view of the witness about a series of facts that the jury can evaluate for itself or, [in the context of criminal law], an opportunity to express a view on guilt or innocence."  State v. McLean, 205 NJ. at 462.  Ultimately, the Trooper’s after-the-fact estimations as depicted on his not-to-scale drawing would not have assisted the jury.
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[directive] Goal:  The police officer handler will be familiar with legal issues and concerns involving the use of a police dog, in particular, the use of a police patrol dog as a force option as well as issues dealing with policy and procedure and the need for clear policy regarding the use of a police patrol dog.  17 7/2002 K-9 Training Standards and Qualification Requirements  1.3.1  The police officer handler will list sanctions a law enforcement officer may face as a result of the improper use of a police dog, including departmental liability, criminal liability, and civil liability.  1.3.2  The police officer handler will demonstrate knowledge of when it is proper to use a police dog, including identifying the conditions that must be met before using a police dog to conduct searches and criminal apprehensions.  1.3.3  The police officer handler will demonstrate knowledge of the proper use of the police patrol dog as a force option.  1.3.4  The police officer handler will identify the significance and purpose of K-9 policy and procedure.  1.3.5  The police officer handler will identify the general types of information to be included in a departmental K-9 policy, including: the circumstances or conditions under which K-9 teams may and may not be utilized; the deployment and use of K-9 teams and services; the role and responsibilities of the police officer handler, supervisory personnel and other officers; reporting requirements and record keeping; the training, qualification and re-evaluation of K-9 teams; and the care, handling and maintenance of police dogs.
[brief] Plaintiff argues that Defendant’s statutory bar argument is “misplaced” because “the very [S]tatute cited by [Defendant] provides clear instruction on the approval process for [Plaintiff] to maintain her job, even in light of her criminal record. ” (AB at pp. 10-12).  In support, Plaintiff cites to a provision of the Statute under which an applicant with disqualifying convictions can apply to the [...] (the “Department”) for an exception under very specific circumstances.  (AB at pp. 11-12; Appx 522 at ¶8; Appx 366-68 ¶¶76-78) (citing N.J. STAT. ANN. § 30:6D-64(f) and (g)) (emphasis added).  Plaintiff does not argue she ever applied for this exception, or that the Department ever granted her this exception.  Plaintiff simply argues that this exception exists and therefore she was not statutorily barred from holding her job.  (AB at pp. 10-12).  But this exception does not apply to Plaintiff.  The exception applies only “if the individual has affirmatively demonstrated to the department, clear and convincing evidence of the individual’s rehabilitation. ”  N.J. STAT. ANN. § 30:6D-64(f) (emphasis added).  Accordingly, in order for the cited exception to apply, a disqualified applicant must submit an application to the Department to demonstrate clear and convincing evidence of rehabilitation.  Plaintiff, however, neither submitted an application to the Department nor demonstrated evidence of her rehabilitation.
[brief] “[I]f the statements are so ambiguous that they cannot be understood to be the assertion of a right, clarification is not only permitted but needed. ”  Id. at 624.  “Because the right to counsel is so fundamental, an equivocal request for an attorney is to be interpreted in a light most favorable to the defendant. ”  Gonzalez, 249 N.J. at 632 (quoting State v. Chew, 150 N.J. 30, 63 (1997)).  In Alston, our Supreme Court demonstrated how police can fulfill their duty to clarify whether a suspect’s equivocal reference to counsel is meant to be an invocation of his right to such counsel.
[brief] Since issuance of the HAD to Tennessee, [...] staff issued its Final Environmental Impact Statement (“FEIS”) for the Project pursuant to [...]’s obligations under the National Environmental Policy Act of 1969, 42 U.S.C. §4321 et seq.\(^4\)  As part of the FEIS and the Environmental Assessment attached thereto, \(^4\)  This Court should take judicial notice of the FEIS pursuant to N.J.R.E. 202(b) and [...] staff analyzed the impacts of the Project on various resources, including wetlands, surface and groundwater resources, cultural resources, air quality, plant and animal species, soils, and impacts on land use, recreation, and visual resources.  TGPa0014.  [...] staff also responded to comments received by other agencies and members of the public on the Project.  The [...] staff ultimately concluded in the FEIS that, by implementing the various mitigation measures outlined in the FEIS, the Project would not result in significant environmental impacts.  TGPa 0022 through TGPa0028.
[brief] - EZ Pass records showing the [...] vehicle at the East Orange Toll Plaza on August 23, 2021 at 9:36 a.m. (remembering purported service was at 9:25 a.m., 9.1 miles away and some roads were 35 MPH, let alone the stop at her brother in laws to drop off the key and the stop at Dunkin Donuts).  264a.  - A photograph taken on the Delaware Memorial Bridge by Dr. [...] on August 23, 2021 at 11:28 a.m. as she testified her hobby is photographing bridges as she likes architecture.
[brief] THE COURT:  Because as you indicated, [...], when we -- when I conducted a 404(b) hearing those videos were shown to me.  They were put up on a screen.  In fact, [...] has the best view in the courtroom because he's right next to the screen so I'm convinced he's had an opportunity, like I did, to look at those videos and the videos speak for themselves, that -- they don't change.  But so, [...], as I said, this is your last opportunity to accept the plea as indicated by [...].
[brief] VI.  [...]’S EQUITY IN THE UNIT WAS NOT BASED UPON ITS APPRAISED MARKET VALUE AS A CONDOMINIUM.  [...] falsely states that Amaconn’s equity in the Unit was based upon its market value as a condominium.  See Db1 (Incorrectly stating that “rents in Hoboken must now be linked to a property’s value as real property in the real estate market”); Db28 (Incorrectly stating that landlord’s actions “push[ed] the rent leveling board to go outside of its ordinance and link the rent to the unit’s market value as a condominium”).
[brief] *Id.* at 6.  Here, the record clearly demonstrates that plaintiff fell in a common area of a multi-use parking lot.  It is also undisputed that the lease between [...] and the Township obligated the Township to maintain the common areas of the center, including the area where plaintiff fell.  The Township has, in fact, acknowledged that duty in that it not only maintained, but also inspected and controlled the parking lot.  [...] neither created the condition that plaintiff alleges caused her to fall nor was it contractually obligated to maintain or repair that area.  To impose a duty on [...] under the facts of this case would be arbitrary and against the precedent discussed herein.  Because the parking lot was available not only to customers of [...], but all local shoppers and the visitors to the Township buildings, imposing a duty on each tenant to maintain only an undefined portion of the common areas would create confusion, be counter-productive, result in duplicative efforts, and interfere with the Township’s maintenance program.  *Kandrac*, 429 N.J. Super at 90.  Because the condition alleged to have caused plaintiff to fall was within the common area of the parking lot available for use by patrons of all of the local stores and Township business, the landlord and its public works department were in the best position to remedy the situation; otherwise, it would be performed piecemeal.  To the contrary, if liability is imposed against [...], it would then have to pay for injuries caused by the failure of the landlord to fulfill its contractual obligation.  Fairness and equity weighs in favor of granting the motion.  Because [...] had no duty to maintain the area where plaintiff fell, the Trial’s Court’s rationale for granting summary judgment is sound and its order and judgment should be affirmed.
[brief] It has been stated that variances from FAR are reserved to zoning board because they can pose a greater threat to the zone plan and public good than other dimensional controls.  Applications for variances from FAR must show the site will accommodate the problems associated with a floor area space larger than permitted by the ordinance.  FAR ordinances may exclude particular structures and buildings.  Mt. Hill v. Zoning Bd. of Middletown, 403 N.J. Super. 210 (App. Div. 2008), certif. den. 197 N.J. 475 (2009).
[brief] *Id.*, at 494.  The Court held that you need injury and fault.  “Actual damages are those that are real and substantial as opposed to speculative.  Also, in a legal malpractice case actual damages may exist in the form of an adverse judgment. ”  *Id.*  In the instant matter, the first and only time that the Plaintiff sustained actual injury or damages from the negligent advice was when the court entered the summary judgment order on April 27, 2022.  Here, the trial court completely erred by finding that the Plaintiff sustained the necessary damage when she received a March 25, 1994, letter from the State saying she may have to register and the Division may take action.  That is not the actual suffered damage as required by *Grunwald*.
[brief] Judicial relief does not extinguish the earlier deprivation. ”  Tumpson v. Farina 218 N.J. 450 (N.J. 2014)  Kumar v. 3 [...] No. [...] (App. Div. Aug. 23, 2022)  A § 1983 claim accrues "when the plaintiff knows or has reason to know of the injury which is the basis of his action."
[brief] [Pa363-73 (emphasis added)]  The Supreme Court has recognized that, in evaluating whether the Affidavit of Merit Statue applies, “courts should determine if the claim’s underlying factual allegations require proof of a deviation from the professional standard of care applicable to that specific profession. ”  Couri v. Gardner, 173 N.J. at 340.  Where a plaintiff’s claims necessarily implicate such a standard of care, an affidavit of merit is required, regardless of how the plaintiff attempts to frame his or her claims.  Id. at 341 (where proof of a deviation form a professional standard of care is required, “an affidavit of merit shall be mandatory for that claim”).  Notably, the Court’s reasoning in Couri has been applied in cases where the Affidavit of Merit requirement was found applicable to engineering firms despite the involvement of unlicensed employees in the underlying work.  See [...] v. [...], 2005 WL 2469665 (D.N.J. 2005).  In Bonnieview, the court dismissed negligence claims asserted against an environmental engineering firm because of the plaintiffs’ failure to serve a timely affidavit of merit.
[directive] When the Investigation is Administrative and the Officer Is a Subject  8.4.1  A public employee must answer questions specifically, directly and narrowly related to the performance of their official duties, on pain of dismissal.  This obligation exists even though the answers to the questions may implicate them in a violation of agency rules, regulations and procedures that may ultimately result in some form of discipline up to and including dismissal.  In short, no “right to remain silent” exists in administrative investigations.  8.4.2
[brief] ”  State v. Blackmon, 202 N.J. 283, 297 (2010).  It considers whether the trial court’s fact-finding was grounded in “reasonably credible evidence,” whether it applied “correct legal principles,” and whether “application of the facts to the law [has resulted in] such a clear error of judgment that it shocks the judicial conscience. ”  State v. Roth, 95 N.J. 334, 363-64 (1984).  “[W]hen the aggravating factors preponderate, sentences will tend toward the higher end of the range.
[brief] (Da5 to 7, 18; 1T9-19 to 10-16; 2T15-14 to 18).  At the time of the crimes, defendant was nineteen years old and on bail awaiting trial for an aggravated assault and armed robbery in Monmouth County.  (PSR6; Pa8).  LEGAL ARGUMENT POINT  I  SINCE DEFENDANT WAS AN ADULT WHEN HE BRUTALLY MURDERED HIS VICTIM, HE IS NOT ENTITLED TO A RESENTENCING UNDER STATE V. COMER, WHICH ONLY APPLIES TO JUVENILES.
[directive] Page5 of information provided by the county prosecutor or designee pursuant to paragraph (e) this Guideline.  @ Factors.  determining whether to issue a temporary extreme risk  In protective order, the court shall consider all relevant evidence including whether the respondent: of of {1) has any history threats or acts violence by the respondent directed toward or self others; ~) of has any history use, attempted use, or threatened use of physical force by the respondent against another person; .Ql of is the subject a temporary or final restraining order or has violated a or temporary final restraining order issued pursuant to the "Prevention of Domestic of Violence Act 1991," (N.J.S.A. 2C:25-17 et seq.); is the subject of a temporary or final protective order or has violated a temporary or final protective order issued pursuant to the "Sexual Assault Survivor Protection Act of 2015," (N.J.S.A. 2C:14-13 et al.); has any prior arrests, pending charges, or convictions for a violent indictable .(fil crime or disorderly persons offense, stalking offense pursuant to N.J.S.A. 2C:12-10, or domestic violence offense enumerated N.J.S.A. 2C:25-19; in .(fil has any prior arrests, pending charges, or convictions for any offense involving of cruelty to animals or any history acts involving cruelty to animals; ill of has any history drug or alcohol abuse and recovery from this abuse; has recently acquired a firearm, ammunition, or other deadly weapon; @) Guidelines for Extreme Risk Protective Orders by Promulgated Directive# 19-19 (August 12, 2019) Page6 ffi) has recklessly used, displayed, or brandished a firearm; ilQl risk has an existing or previous extreme protective order issued against him or her; and ill) has previously violated an extreme risk protective order issued against him or her.
[brief] Variances therefore are appropriate only in exceptional cases where the justification is clear.  Nigito v. Borough of Closter, 142 N.J. Super. 1 (App. Div. 1976), certif. den., 74 N.J. 265 (1977).  The policy disfavoring variances is reflected in the MLUL and the basic law governing land use variances which is codified in N.J.S.A. 40:55D-70d, amended by L.1991, C.256.  Under N.J.S.A. 40:55D-70d, a zoning board of adjustment may grant a d(1) use variance only: (1) "[i]n particular cases and for special reasons" to permit a use or principal structure in a district restricted against such use or principal structure (i.e., “positive criteria”); and (2) if the variance can be granted "without substantial detriment to the public good" and "will not substantially impair the intent and purpose of the zone plan and zoning ordinance."  (i.e., “negative criteria”)  (emphasis added)  The statute thus requires the applicant to prove both positive and negative criteria to secure a d variance.