ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[directive] This Special Application and Enhancement Feature shall apply whenever the defendant at the time of arrest or at any time during the course of committing the Brimage-eligible offense or an attempt or conspiracy to commit the Brimage-eligible offense: (1) was in possession, whether actual, joint or constructive, of an assault firearm as defined in N.J.S.A. 2C:39-1(w) or a machine gun as defined in N.J.S.A. 2C:39-1(i); or (2) brandished or openly displayed any firearm, pointed any type of firearm at another, discharged any type of firearm, or threatened to discharge any type of firearm; or control11 (3) was in immediate personal of any type of firearm.  For 11  It should be noted that as a matter of policy, this Special Application and Enhancement Feature is not automatically triggered by all conduct that constitutes a violation 2C:39-4.1a.  In State v. Spivey, 179 N.J. 229 (2004), the New Jersey Supreme Court of N.J.S.A. rejected the defendant’s contention that N.J.S.A. 2C:39-4.1 requires proof that the defendant either be in actual possession of the weapon or else constructively possess it in close proximity to his person during the commission of the offense.  It is therefore possible to commit a second- 2C:39-4.1a under circumstances involving joint or constructive degree crime under N.J.S.A. possession where a prosecutor would not be required pursuant to this Special Application and Enhancement Feature to tender a plea offer that provides that the defendant must plead guilty to both a drug distribution-type offense and the weapons offense.  Rather, this mandatory enhancement feature must be applied only to selected 2C:39-4.1 violations that are deemed as a matter of policy pursuant to these Guidelines to pose an especially great risk to law enforcement officers and the public.
[brief] 34  See, e.g., N.J.S.A. 19:44A-20.5; Asphalt Paving Sys., Inc. v. Borough of Stone Harbor, 474 N.J. Super. 56 (App. Div. 2022); Verry v. Franklin Fire Dist. No. 1, 230 N.J. 285 (2017).  35  Ferraro v. Zoning Bd. of Adjustment of Tp. of Holmdel, 119 N.J. 61 (1990).  Liability Act, N.J.S.A. 59:13-1 to -10 (CLA) and therefore, the fact that the State acts in some official capacity doesn’t absolve it from contract claims.  A state entity may be held liable for breach of an express written, oral or implied in fact contract.\(^{36}\)  New Jersey law permits recovery “to the extent of [any] benefit conferred upon and knowingly accepted by the municipality. ”\(^{37}\)  All elements of a contract between the parties are present in this case.
[brief] As of that date, [...] had sufficient knowledge to establish the four elements of a prima facie malicious prosecution claim: “(1) a criminal action was instituted by this defendant against this plaintiff; (2) the action was motivated by malice; (3) there was an absence of probable cause to prosecute; and (4) the action was terminated favorably to the plaintiff. ”  See LoBiondo v. Schwartz, 199 N.J. 62, 90 (2009) (internal citation omitted).  And on that date, [...] also had sufficient information to allege that his underlying conviction had been obtained through false statements and perjured testimony (Pa9; Pa13), thereby rebutting the presumption of probable cause created by his conviction and sentence.  See Freeman v. State, 347 N.J. Super. 11, 26 (App. Div. 2002) (“Probable cause is established conclusively by a conviction, even if reversed on appeal, so long as the conviction was not obtained by ‘fraud, perjury or other corrupt means. ’” (internal citation omitted)); (Pa9) (alleging the named defendants “used the false and fabricated information that Defendant was a criminal suspect to seek the revocation of Defendant’s probation”; (Pa13) (alleging the named defendants “falsely stat[ed] to others, in police reports and testifying under oath[,] that Defendant illegally possessed and distributed drugs”).  For these reasons, the trial court below correctly held that [...]’s NJCRA malicious prosecution claim accrued on March 6, 2018, consistent with controlling New Jersey authority which instructs that a malicious prosecution claim begins to accrue at the time of favorable termination.
[brief] 1A.  Plaintiff’s Complaint identifies Defendant/Respondent, [...] (hereinafter ‘Defendant’ or ‘[...]’) as a physician specializing in Critical Care and --- 1  In reviewing the underlying facts and the procedural history, it was determined that the two are intrinsically intertwined.  It is respectfully submitted that to separate the Statement of Facts from the Procedural History would have been difficult and would have likely led to a lengthier brief.
[brief] For instance, in an attempt to determine what, if any, documentation exists to support the receipt and acknowledgement of the deliveries of “replacement material,” the following colloquy occurred:  Q:  There’s no paperwork.  You’re telling me that we’re just supposed to accept you at face value.  You said, send me 500 units of this.  There’s no paperwork exchanged, and you send them a check.  So there’s no way for anyone in the accounts receivable department of [...] to say, oh, this $50,000 check corresponds to these goods sold, correct?  Is that what you’re telling me?  That there is no paper trail to support any of these checks?  A: When the material gets delivered, there’s a packing slip.  Q: Where is the packing slips?  A: The guys throw it out after material is received.  Furthermore, the following exchange highlights [...]’s inability to corroborate and to prove what, if any, “replacement materials” were allegedly purchased:  Q: We don’t know what was – for each of these checks, as we sit here today – A.  Yeah.  Q: -- can you tell me what that $50,000 check covered?  A: Off the top of my head, no.  Q: And not just off the top of your head.  Is there any way for us to determine what that $50,000 check paid for?  A: I am not sure.  Shallan [...] further testified that he was unaware of any tracking mechanism for [...] to determine what specific materials were being purchased at any given time:  Q: So if we don’t have a document telling us what your maximum quantity is and how much you’ve already ordered, how does anyone know whether or not you’re going over the amount that the contract provides – allowed you to buy?  A:  I don’t have that answer for you.  Later in the deposition, Shallan [...] testified that he utilizes the “honor system” in relation to [...]’s ability to track how much of your maximum quantity was used.  (4T115:8)
[brief] Now, when you take this vote, I feel it is appropriate and necessary that when you vote, you explain your vote and you explain it in terms of the legal parameters of why you feel what you feel and that we get an explanation of whether you feel the burdens have or have not been met under the SICA case.  [...]: Okay.  Let's make sure.  If you vote, yes.  [...]:  If you vote yes, you agree with the denial.  [...] NJNG 12-16_1.txt understand, maybe other people don't realize it, but I do.  Again, I say that my vote is no, I do not agree.  [...]:  The only other thing I would add, if you have a comment on whether you feel that this use is inherently beneficial, we should put that on the record.
[brief] [...]: No, Judge.  THE COURT: [...]?  [...]: That the only thing, maybe she can look at the family members in the audience and see.  THE COURT: I didn't want to say that, you're okay with that?  [...]: Yeah.  (24T 7-15 to 11-9)  This exchange differentiates the facts of this case with that of *State v. Fortin*, 178 N.J. 540 (2004), which Defendant relies on.
[brief] ” (Ca034).  “A board of education should not be put in a position of having to distance itself from the speech of its board members.  Rather, school board members, like [...], are required under the [Act] to be responsible in ensuring their conduct does not have the potential to compromise the Board.  Accordingly, I conclude that the complainants have met their burden to demonstrate that [...] violated N.J.S.A. 18A:12-24.1(e) and this charge is sustained.
[brief] In order to defray the cost of rebuilding the [...], the Authority applied for and tentatively received approximately $30 million in Economic Redevelopment and Growth (“ERG”) tax credits and other financing sources to offset these costs, which bypassed the need for FSA approval.  On April 13, 2022, the [...] ("[...]") preliminarily approved the ERG tax credits for the [...].  See Pa378; Pa427.  [...] testified that the Authority’s financing for the [...] depends on those ERG tax credits and estimated that the Authority will begin construction by June 2022.
[brief] Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001) (quoting Magill v. Casel, 238 N.J. Super. 57, 63 (App. Div. 1990)).  It is well settled that "[l]itigants ought not have to face a judge where there is reasonable question of impartiality."  Id. at 67 (quoting Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 162 (3d Cir. 1993)).  Notably, "Canon 3(C)(1) of the Code of Judicial Conduct provides that '[a] judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned.'"
[brief] On December 18, 2021, Defendant had an altercation with another corrections officer at a charity event at [...].  (Id. at ¶ 3). ¹  Subsequently, the other corrections officer filed a complaint with Internal Affairs (“IA”) relative to Defendant’s conduct and alleging that Defendant engaged in harassment, threats of violence, unprofessionalism, and hostility.  (Id. at ¶ 4).  Shortly thereafter, on or about December 23, 2021, Defendant was suspended with pay.  (Pa2, Id. at ¶ 6).  On or about January 3, 2022, the County Administrator issued a Preliminary Notice of Disciplinary Action (“PNDA”) to Defendant memorializing her suspension without pay pending the IA investigation.  (Id. at ¶ 8; Pa14-Pa16, PDNA).  ¹  Defendant, after the conclusion of her bout at a charity boxing event, “shouted expletives from inside the ring and in full view of witnesses from both the public and members of the law enforcement community at large, [and] made several obscene hand gestures . . . toward the gym bleachers that were full of event spectators. ” (Pa20).  The target of these gestures and language was a fellow officer.  (Ibid.).  Defendant continued this shortly thereafter, and returned to the gym floor, directing “lewd, inappropriate” language at the other officer and the other officer’s family; event security and off duty members of law enforcement had to escort Defendant and her family from the gym.  (Ibid.).  Nonetheless, Defendant repeatedly continued to engage with the other officer and members of her family while in the gymnasium lobby, walked behind them to their vehicles in the parking lot, and used “lewd, inappropriate language while on public school grounds in full view of the public. ” (Pa21).  The IA investigation was completed on or about April 27, 2022, and the results were communicated to the County Administrator.  (Pa2, VC at ¶ 9).  As a result of the investigatory findings, on or about May 18, 2022, the County Administrator issued an Amended Preliminary Notice of Disciplinary Action (“APNDA”) which sought Defendant’s removal, effective May 24, 2022.  (Id. at ¶ 10; Pa17-Pa23, APNDA).  In response to the APNDA, Defendant notified the County that she was appealing the APNDA and sought an administrative departmental hearing.  (Pa2, VC at ¶ 12).  On August 7, 2022, through counsel, Defendant filed a Notice of Claim against Plaintiff asserting tortious interference, breach of implied covenant of good faith, breach of contract, misrepresentation, slander, libel, fraud, wrongful termination, and violations of the New Jersey Law Against Discrimination, the Conscientious Employee Protection Act, Title VII, and various state and federal civil rights violations.  (Pa3, VC at ¶ 16).  She also filed an EEOC charge against Plaintiff which was dismissed via Dismissal and Notice of Rights on December 16, 2022.  (Id. at ¶ 17).  In response to Defendant’s appeal of the APNDA charges which sought her removal, the matter was initially scheduled, with the consent of both parties, for an administrative departmental hearing on the merits of the charges in September 2022.
[brief] Generally, taxpayer intervention is appropriate where there are claims of fraud or corruption, see Driscoll v. Burlington Bridge Co, 8 N.J. 433, 474-476, cert denied 344 U.S. 838, . . . (1952) or other instances of illegalities and ultra vires acts.  National Waste Recycling, Inc. v. Middlesex Cty. Imp. Auth, 291 N.J. Super. 283, 289 (App. Div.) cert granted, 146 N.J. 565 (1996); Matlack v. Burlington Cty Freeholder Bd., 191 N.J. Super. 254 (Law Div 1993), aff’d 194 N.J. Super. 359 (App Div. 1984); Koons v. Bd of Com’rs of Atlantic Cty., 134 N.J.L. 329) (Sup Ct 1946) aff’d 135 N. J.L. 204 (E &A 1947).  (emphasis supplied).  [...] is clearly distinguishable from this case.
[brief] While certainly entitled to do so, Counsel for Applicants front ran the ZBA publication by six days and failed to provide Appellants with an affidavit of publication.  As a result, Counsel for Appellants was not made aware of the commencement of the 45-day clock until the eve of the Christmas weekend, which was 20 days (23 including the holiday weekend) into the 45-day period.  Appellants had no expectation that there was any need to rely on any information other than the ZBA Secretary’s representation that the Resolution would be published on December 8, 2023.  Appellants had likewise relied upon the ZBA Secretary’s representation that the Resolution would finally be adopted by the ZBA after two and half months after it was made.  Given the amount of communication from the day after the ZBA reached its determination on September 13, 2022 right up to the emailing of the affidavit of publication the day before the Christmas holiday, Appellants acted with tenacity.  Appellants were extremely diligent in taking actions to ensure that their rights were not compromised, so it would be outrageous to suggest that they slumbered on their rights.
[brief] (Pa054).  [...] stated in his report that he observed the plaintiff lift the trunk floorboard and place the backpack in where the spare tire would be located.  (Pa022).  He then contradicts himself by stating that upon making contact with the plaintiff he observed the bottle with alcohol (that was inside the backpack under the floorboard) on top of the floorboard.  (Pa022).  In contrast, [...] who stated that he was also present at 0023 states:  We observed there was no backpack in the trunk area of the Jeep.  When asked where he placed it, [...] stated that it was under the floor in the trunk area where the spare tire is stored.  [...] explained he put it there due to an alcoholic beverage inside of the backpack.  (Pa303)  This clearly meant that [...] did not see a bottle of Alcohol on top of the floorboard although [...] contends that he saw it.  The bottle with alcohol was either under the floorboard (in the back pack as plaintiff stated) or on top of the floor board.  It cannot be both!  Thus, one police officer was lying.
[brief] Separately, [...] (the “[...]”) was retained to represent [...] (“[...]”), [...] (“[...]”), [...] (“[...]”), [...], D.O. (“[...]”), and [...], M.D. (“[...]”) (the “[...]”).  [...] retained the [...] to represent him and his medical practice entities.  Pa319; SDa36-40.  [...] also retained the [...] to represent him personally.  Pa322; SDa41-45.  [...] works for [...]’s medical practices, [...]/[...] and [...].  Pa7, 10-11.  Pursuant to [...]’s retainer, [...] and his practices agreed to pay for legal fees incurred by [...] in this litigation.  SDa41-42; Pa319-20.  This agreement to do so and the attendant RPC conditions were set forth in the retainer.  SDa42, 44.  In conjunction with [...]’s motion to disqualify, at the trial court’s direction, on October 16, 2023, the [...] sent both retainer agreements and an additional conflict waiver to the Court via email to its law clerk for *in camera* review.
[brief] [...], who was a cousin of [...] and who attended the party that night, had gone to the bathroom and when done saw that everyone was leaving the party, so she followed suit.  (6T141-5 to 19; 6T143-6 to 11; 6T148-16 to 17; 6T148-19 to 24).  As she walked out, she saw that [...] was behind her.  (6T149-1 to 8).  She was walking in the parking lot when she heard shots.
[brief] (6T181-16 to 182-1).  [...] heard a male voice say, “I’m upstairs. ” (6T164-4 to 10).  [...] ordered defendant three times to, “Show me your hands. ” (6T164-12 to 15).  Defendant responded, “I don’t have the rifle. ” (6T164-19 to 165-11).  [...] ordered defendant to put his hands on the railing, and then on the wall.  (6T176-11 to 17).  Defendant understood and followed the officer’s commands.  (6T165-22 to 166-5, 172-10 to 16).  [...] and a Long Branch police officer placed defendant on the ground face down and handcuffed him behind his back.
[brief] [...] (“[...]”) substituted into the Foreclosure for [...] on 12/1/2021.  0039a.  Mr. [...] is a partner of and a Portfolio Manager for [...] and [...].  *Deposition of [...]*, 0124a (10:8–9); At deposition, Mr. Schwab testified that [...] and [...] are “definitely not related” to Co-Respondent [...].  *Deposition of [...]*, 0128a (26:9).  Mr. [...] is a managing member of [...].  T4 43:15.  At trial, Mr. Frenkel testified that he had no business interest in [...] or [...].  T4 49:22; 50:4.  When asked if “he ever had any business relationship, partnership, or joint venture” with Mr. Schwab or Mr. Schwab’s other partners, Mr. Frenkel answered “no way. ”  T4 50:15.  A review of the 41 pages of Whatsapp Messages corroborates the testimony of Mr. Schwab and Mr. Frenkel that no business relationship, partnership, or joint venture exists between them individually or between their respective entities.  0167a-0208a.  At most, Mr. Schwab and Mr. Frenkel have merely conducted “arms-length transaction[s]. ”  *Deposition of [...]*, 0124a (27-12; 28:13-15).  Mr. Frenkel testified that he may have purchased up to four properties from Mr. Schwab’s entities in the past ten years.  T4 13-14.  **II.
[brief] THE PLAINTIFF WAS REQUIRED TO PROVIDE EXPERT TESTIMONY IN ORDER TO ESTABLISH A CAUSE OF ACTION.  The Plaintiff’s first argument against [...] is contained in Issue D, asserting that it was error to deny the cross motion to extend discovery.  However, it is important to demonstrate that expert testimony was, in fact, required.  In order to demonstrate that [...] was negligent in his care of Plaintiff, Plaintiff must demonstrate: (1) the applicable standard of care; (2) a deviation from that standard of care; and (3) that the deviation proximately caused the injury alleged.  *L.A. v. New Jersey Div. of Youth & Family Servs.*, 217 N.J. 311, 323 (2014); *Gardner v. Pawliw*, 150 N.J. 359, 375 (1997).  The mere fact that the injury occurred is insufficient to establish the cause of action.  *Gluckauf v. Pine Lake Beach Club, Inc.*, 78 N.J. Super. 8, 20 (App. Div. 1963)(“No presumption of negligence arose from the mere happening of the accident. ”)\(^1\)  The discovery end date in this case ran on November 17, 2022.
[brief] Panzarella v. Navient Sols, Inc., 37 F.4th 867, 872 (3d Cir. 2022) ("We may affirm on any basis supported by the record[.] [emphasis added].  Shark River Cleanup Coalition, supra, 47 4th at 136.  The record here reflected a sufficient basis to disqualify.  RPC 1.9 was argued.  Indeed, it formed the basis of the motion to disqualify.  RPC 1.9 encompasses paragraphs (a) through (c).  Further, even though Appellants conveniently chose to ignore the Certification signed by [...] on June 1, 2023 and conveniently chose not to include it in this appeal, the Certification was argued below and considered by the Court in its decision to disqualify.  In that Certification, [...] stated that there was a conflict of interest which he did not waive.  (Pa39; 1T19:18).  It is axiomatic that only the client can waive a conflict of interest.  Courts have the authority to make decisions on other grounds.  The Court did not err where the record reflects that Respondents argued RPC 1.9 and raised the issue of Conflict of Interest as certified by [...] in his June 1, 2023 Certification.  C.
[directive] 1  2  Definitions  Activate.  To actuate the recording mode/function of a body worn camera.1  Body worn camera (“BWC”).  A device worn by a law enforcement officer that makes an electronic audio and video recording of activities that take place during any law enforcement action.  The term does not include a mobile video recording device when mounted inside a police vehicle (i.e., a dash cam).  The term also does not include any form of electronic recording device worn by a law enforcement officer while acting in an undercover capacity.  Nor does the term include an electronic recording device when used to comply with the requirements of Rule 3:17 (electronic recording of station house custodial interrogations).
[brief] 2  The transcripts of the relevant proceedings will be referred to as follows:  | Transcripts | Dates | |-------------|-------------| | 1T | 02/10/21 | | 2T | 02/15/21 | | 3T | 12/20/21 | | 4T | 01/18/22 | | 5T | 01/20/22 | | 6T | 01/25/22 | | 7T | 01/26/22 | | 8T | 01/27/22 | | 9T | 02/08/22 | | 10T | 02/09/22 | | 11T | 02/10/22 | | 12T | 02/15/22 | | 13T | 02/16/22 | | 14T | 02/17/22 | | 15T | 02/22/22 | | 16T | 02/23/22 | | 17T | 02/24/22 | | 18T | 03/01/22 | | 19T | 03/02/22 | | 20T | 03/03/22 | | 21T | 03/08/22 | | 22T | 03/09/22 | | 23T | 03/10/22 | | 24T | 03/16/22 | | 25T | 03/17/22 | | 26T | 06/30/22 | | 27T | 09/09/22 | wife as a chemist, the [...] attended [...]’s wedding, and [...] gave the [...] some money to purchase their first home.  (4T45:7-16).  Together, they built [...] into a multi-million-dollar enterprise.  In 1990, [...] and [...] acquired ownership interests in [...], and in 2007 became the sole shareholders in the company.
[brief] During [...]’s testimony, the prosecutor played a portion of the surveillance video of the incident.  (3T 71-15 to 21)  In reaction to the video, [...] commented, “You can’t see where the bottle is dropped. ”  (3T 71-22 to 23)  The prosecutor objected to this disruption, and the trial court dismissed the jury.  (3T 71-24 to 72-7)  The court admonished [...] for speaking, and [...] responded, “My attorney is not helping me.  He’s not. ”  (3T 72-8 to 20)  The court instructed [...] to tell defense counsel if he had questions for counsel to ask on cross-examination.  (3T 72-25 to 73-18)  The court also warned [...] that if he disrupted trial again, the court had the authority to “have [him] either gagged or bound or removed from the courtroom for [his] trial. ”  (3T 73-7 to 23)
[brief] The docket also shows proof of service was never filed.  Instead, on April 23, 2019 the clerk entered “Proof of Service” on the docket, then uploaded an unidentified and unsigned page with a purported United States Postal Service logo at top stating only that there was a delivery in “[...]” on April 1, 2019, with no identification of what was delivered or who received it.  4a.  That page has a scribbled symbol on it as “Signature of Recipient”, without an address of the recipient or proof of where that mailing was made other than a New York City zip code of 10001.  Using that unidentified document, the plaintiff immediately filed for a default judgment on May 7, 2019 and again on May 31, 2019 he filed a certification under penalty of perjury misrepresenting that he served defendant at a New York law office and he misrepresents that an attorney appeared for her in the underlying case.  Defendant was never served and at no time did any attorney or the defendant file a Notice of General Appearance on the docket.  At all times the defendant defended herself against the unlawful filings of the plaintiff by making a special appearance solely to object to jurisdiction because she was never served and the court lacked subject matter jurisdiction because the plaintiff violated R 1:2-A-6 by failing to serve the Pre-Action Notice before filing the complaint.