ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] PRELIMINARY STATEMENT  This matter relates to an Open Public Records Act (“OPRA”) request made to the [...] (“Board”) in 2015 seeking special education records.  At the time of the 2015 request, settlements of special education disputes, including those memorialized by an Administrative Law Judge, were considered confidential student records.  The requested records were withheld by the Board as exempt from public disclosure requirements on that basis.  In May 2022, the Appellate Division determined that settlement agreements resolving Individuals with Disabilities Education Act disputes that have been docketed in the Office of Administrative Law (“OAL”) and final decisions incorporating or pertaining to those settlement agreements are subject to disclosure.  The appellate court affirmed the 2020 trial court Order requiring production of the requested records and awarding attorney’s fees.  Thereafter, the Defendants complied with all Orders entered in this matter.  The Board disclosed all responsive records in its possession.  While the Board did not produce a resolution, settlement agreement, and decision for each OAL docket number requested, the Records Custodian certified that he conducted a diligent search for the records.  This included a thorough search of the Board’s administrative offices and contacting outside counsel who represented the Board in special education OAL matters in 2013-2015.  All responsive records which could be located were provided to Plaintiffs.  Plaintiffs are fully aware of the search undertaken for the records, which records were located, and which parts of the records were deemed confidential.  There is simply no need for discovery and certainly no cause for the imposition of a civil penalty.  Moreover, Plaintiffs have been provided with all attorney’s fees and interest awarded to them by the court.  Therefore, the monetary judgment entered against the Defendants was properly satisfied.  The Plaintiffs are not entitled to any additional award of attorney’s fees or interest.  As all issues have been properly resolved, Plaintiffs’ appeal is baseless.  The trial court’s Orders should be affirmed, and this matter should finally be closed.
[brief] In addition, Defendant argues that the State’s failure to present the police’s response time amounts to a failure to establish reasonable suspicion.  Db, p. 11.  Defendant fails to mention the fact that the trial court’s erroneous evidentiary ruling – which the State challenges in this appeal – precluded the State from offering this vital evidence.  Given that the State was prevented from admitting any substantive evidence of the 9-1-1 call, the State was unable to present evidence related to when that call was received.  As the State could not present evidence related to the time at which the 9-1-1 call was placed, the State could thus not present evidence as to how soon police responded to the scene after the call was placed – i.e. the response time of police.  Defendant cannot argue both that the evidence was properly excluded, but also that the State cannot sustain its burden without that evidence.  Defendant attempts to explain his position by suggesting that the State could have presented evidence related to the 9-1-1 call by compelling testimony from the actual 9-1-1 caller.  Defendant fails to point to any caselaw, statute, Rule of Evidence, or Court Rule that compels the State to call a 9-1-1 caller to testify during a suppression hearing.  Rather it is proper, under the New Jersey Rules of Evidence, for the State to rely on hearsay evidence, and it is clear that the trial prosecutor in this matter intended to do just that.  The trial court’s erroneous evidentiary ruling could not have been anticipated, and the trial prosecutor’s strategy could not be amended mid-hearing based on it.  The trial prosecutor could not produce the 9-1-1 caller out of thin air.  In addition, the State cannot be compelled to alter its strategy due to an incorrect evidentiary ruling.  People providing tips about members of their community are often reluctant to testify.  They may feel intimidated, fear retribution from a defendant or his family, or being labeled a “snitch” in the community.  Or they may simply be reluctant to come into court and confront an accused.  Given that, and given that this was a preliminary proceeding regarding admission of evidence that, in itself, could not result in the imprisonment of a defendant, the State is permitted to proceed using hearsay evidence.
[brief] ARGUMENT POINT I THE BOARD’S DENIAL OF BRUNCATI’S APPLICATION MADE APPROXIMATELY ONE YEAR AND ONE MONTH PAST THE STATUTORY DEADLINE TO FILE FOR AMENDED BENEFITS IS REASONABLE AND SHOULD BE AFFIRMED.  The Board’s decision denying [...]’s Eligibility Registration Form under the Ricci Act should be upheld because it is reasonable and supported by the plain language of N.J.S.A. 53:5A-10, and thus is not arbitrary nor capricious.
[brief] This Court took the very same approach to address the T&E violation recently found in *Alcantara v. Allen-McMillen*, 475 N.J. Super. 58 (App. Div. 2023).  After concluding [...] students were not receiving a T&E education and citing, *inter alia*, “key” record evidence that “over half” of the [...] district budget “went to transportation and special education for non-public school students,” *id.* at 63, this Court ordered a remand to determine if SFRA is operating optimally in that district, as mandated by *Abbott XX*:  …we reverse and remand with instructions for the agency to consider the substantive arguments pertaining to the SFRA in light of our Supreme Court’s directive in *Abbott ex rel. Abbott v. Burke* (*Abbott XX*), 199 N.J. 140, 146, 971 A.2d 989 (2009): the State has a continuing obligation to “keep SFRA operating at its optimal level …” and “[t]here should be no doubt that we would require remediation of any deficiencies of a constitutional dimension, if such problems do emerge.
[brief] ”  Also, [...] now leaves out the important words contained in his Trial Court Certification, “I do not believe,” from his statement made under oath to the Trial Court, Pa150.  (Emphasis added.)  [...], who had the conversations with [...], states in his Trial Court Certification that he has “No recollection of settlement or ultimate resolution” and he does not “believe” he “discussed substantive strategies for litigation. ”  The use of the words, “I have no recollection” and “I do not believe,” like those of [...], the losing party in *O Builders*, are equivocal, uncertain and indefinite, while the statements in [...]’s Certification were clear and unequivocal in laying out the confidential and privileged communications she had with [...], like [...], the prevailing party in *O Builders*.  Further, Petitioners’ Trial Court brief, which generally summarized the contents of [...]’s Certification, provided enough information (“[Petitioners’] assessment of the Decedent’s estate, their understanding of the Decedent’s testamentary intentions, PPa82, the *relative strengths and weaknesses of their position, and specific potential settlement posture.*”) (emphasis added) for [...] to properly respond.
[brief] Pa21, ¶ 4; Pa26-33; Pa118, ¶¶ 31, 33.  As a result of the Settlement Order, on July 9, 2020, [...] and the actions consolidated therein were dismissed with prejudice, closed, and terminated.  Pa21, ¶ 5.  Appellant was a member of Class Twelve of the Settlement Agreement, which covered “[a]ll natural persons with addresses in the State of New Jersey to whom, beginning August 20, 2016 through April 5, 2017, [...], sent one or more letters on behalf of [...] concerning a debt originally owed to [...] ”  Pa28; Pa118, ¶ 34.  Pursuant to the Settlement Agreement, Appellant specifically released [...] from any and all claims relating to [...]’s licensure status and the collection of such debts.  Pa26-33; Pa118, ¶ 34.  In pertinent part, the Settlement Order provides:  ‘Released Claims’ shall mean any and all actions, causes of action, suits, claims, defenses, covenants, controversies, agreements, promises, damages, judgments, demands, liabilities and obligations in law or in equity relating solely to claims of statutory damages under the federal Fair Debt Collection Practices Act (“FDCPA”), that Plaintiffs and the Settlement Class Members, as defined herein, asserted or could have asserted as a result of, arising out of, or in connection with the collection of a debt on behalf of [...] and on behalf of [...], when they were not licensed under New Jersey Consumer Finance Licensing Act (“NJCFLA”), N.J.S.A. 17:11C 1 et seq., from the beginning of time to the date of this Agreement.  Pa31-32, ¶ 19 (emphasis added).  On July 20, 2020, Appellant received a credit to the outstanding balance on the Account as part of the terms of the Settlement Agreement.  Pa119, ¶ 38.  Appellant never opted out or challenged the terms of the Settlement Agreement or otherwise sought to vacate the Settlement Order.  Pa119, ¶ 39.  **PROCEDURAL HISTORY**
[brief] IV.  APPELLEE’S COUNSEL’S MISLEADING CITATIONS TO DR. LOPEZ’S TESTIMONY REQUIRES A NEW TRIAL (Raised below: 3T10:7-14)  In summation, counsel cherry-picked a cited portion of [...]’s testimony where [...] agreed with Appellee’s counsel during his cross-examination that Appellee’s treatment was “reasonable and medically necessary directly as a result of the accident. ”  2T228:21-229:1.  Rather than providing context to that quote, Appellee’s counsel goes onto say “so when you bear it down on [...], when you ask the questions he can’t get around, you ask him questions about medicine, you ask him questions about MRIs, surgery, he admits that it’s all permanent and it’s all related to the accident. ”  3T40:7-14.  However, the reality is that [...] clarified his testimony clearly that he meant the treatment was reasonable, but not related to the accident.  2T233:25-234:6.  Moreover, [...] testified clearly that he found no permanent injury related to the accident.  2T212:14-22.  Appellee’s counsel’s remarks on summation, if believed by the jury, would leave an undeniable impression that [...] found the treatment was not only, causally reasonable and medically necessary which he undoubtedly misstated, but more important that “it’s all permanent and it’s all related to the accident.
[brief] Moreover, when [...] wrote to [...], [...] and [...] in January of 2019 regarding their personal liability, [...]’s response was not that they did not enter into a guarantee.  [...]’s response was that the lease had been allegedly terminated and, therefore, their guarantees were no longer effective, and they were no longer a part of the LLC and, therefore, they had no liability on their guarantee.  In response to [...]’s letter of January 2019, neither [...], [...] nor [...] suggested the original guarantees were not valid at the time the Lease was signed.  Pa79-88.  Never did [...], [...] or [...] argue that they did not sign the Lease as guarantors, prior to the filing of the present action.
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[brief] He testified as follows during his deposition:  Q.  Do you recall if you were asked questions in the hospital about if you had had a fall or how the fall occurred?  A.  No, no, I don’t know if I ever answered any kind of question, received any kind of question like that or answered it.  Q.  So if the hospital chart says that you don’t recall falling, you wouldn’t have any dispute with that, I mean that’s basically what you’re telling us today, that you don’t have any recollection of falling?  A. Correct.  (Pa225-226).  Plaintiff’s testimony regarding his inability to explain how he fell is confirmed by what he told his treating doctors as reflected in medical records produced in discovery by Plaintiff.  The records from [...] contain statements like: • “Plaintiff does not recall falling. ”  (ECa3)² • “The patient is AAOx upon arrival but amnestic to how he sustained the laceration to his scalp. ”  (ECa3)  •  “Patient presented as full trauma after Fall, unknown mechanism because the patient does not remember the surrounding events. ”  (ECa4)  ² “ECa” refers to the Exhibit/Confidential Appendix (Volume IV) which was filed under seal by Plaintiff.  • “He has no recollection of what happened and has no recollection of trauma. ”  (ECa5)  •  “He is amnesic to the events surrounding his presumed fall. ”  (ECa6)  •  “He was unable to recall the events of his fall. ”  (ECa7)  All Plaintiff can say with any certainty is that when he regained consciousness, he was lying on top of a piece of plywood.  (Pa230).  See also Pa94.  And, although Plaintiff’s answer to Supplemental Interrogatory No. 3 (Pa99) states the alleged incident was caused by Plaintiff falling “on a piece of plywood covered by snow,” this is not consistent with Plaintiff’s extensive deposition testimony.  [...] never testified that “a piece of plywood” caused the alleged incident.  He merely stated that he woke up on top of a piece of plywood.  **Plaintiff’s Liability Expert Report**
[brief] (See 7T130:4-132:23; 7T136:3-145:22; 7T197:25-198:24; Pa70; Pa79.)  Plaintiff’s other deviation expert, [...], R.N., also relied on the NHA and the related regulatory framework in arriving at her deviation opinions.  Like [...], [...] was an LNHA and confirmed that she was familiar with annual and complaint surveys.  (See 8T70:21-76:12.)  A complaint survey was performed in this case, including a tour and a review of medical and staffing records.  (See 8T76:13-78:5; 8T118:1-129:16; Pa72-79.)  [...] initially agreed that she knew the surveyor, [...], and that she “does a good job”, but later, after an objection, [...] modified her response to state that [...] “does her job” “the same job that every other surveyor does”.  (8T78:11; 8T79:16-18; see 8T76:13-81:6.)  The surveyor found no federal deficiencies, and specifically, that the facility was in compliance with the requirements of 42 C.F.R. 483 Subpart B for long term care facilities, the same regulation upon which [...] relied in her report.  (See 8T81:7-84:4; Pa72-79.)  Additionally, a letter to [...], dated August 18, 2016, advises that no citable deficient practices related to her concerns were found based upon the state and federal regulations, including requirements with respect to licensed practical nurses providing certain care and documentation, contrary to [...]’s opinions.  (See 8T 84:5-85:21; 8T128:25-129:5.)  (See generally Pb4; Pb10.)
[brief] Appellant has certified that she began working with Respondents in or around January 2022.  (Pa000213).  At that time, Appellant was offered employment by Respondent [...] and through Respondent [...], Appellant was assigned to work at her specific site, located at Respondent [...]’ New Brunswick location.  See id.  In early-January 2022, Respondent [...]’s hiring manager contacted Appellant and provided her with a number of tasks to complete as part of the onboarding process.  See id.  Among other things, Respondents required Appellant to attend a pre-employment health screening and acknowledge a number of Respondent [...]’s policies and procedures through its online portal.  See id.  On or about January 14, 2022, Appellant was sitting in her doctor’s office awaiting her pre-employment screen when she received instructions from Respondent [...] urging her to immediately login to the employee portal and click through a series of company policies.
[brief] For a plaintiff to prevail on a breach of contract claim, four elements must be met: (1) a valid contract existing between plaintiff and defendant; (2) the plaintiff performed or was excused from performing the contract; (3) the defendant failed to perform the contract; and (4) damages resulting from the breach.  *Video Pipeline, Inc. v. Buena Vista Home Ent.*, 275 F. Supp. 2d 543, 566 (D.N.J. 2003) (applying New Jersey law).  Further, where an agreement is subject to condition precedent, but the condition precedent does not occur, then a valid, binding contract has not been formed.  See, e.g., *Duff v. Trenton Bev. Co.*, 4 N.J. 595, 604 (1950).
[brief] Da407  Defendants/Appellants’ Court Transcript Request dated February 22, 2024.  . . . . . . . . . . . . . . . . . . . . . . . .  Da412  Defendants/Appellants' Certification of Transcript Completion and Delivery dated April 1, 2024.  . . . . . . . . . . . . . . . . . . . . . . . Da414  [...] v. [...], [...]
[directive] New Jersey Superintendent, Prosecutors County All Prosecutor Fraud Insurance Sheriffs County All Chiefs Police All Executives Chief Enforcement Law  All General Attorney  [...]  FROM: 2016 October 11, llATE: to Procedures and Practices, Policies, Interim Establishing  SUBJECT: Directive 31 e. 2014, P.L.  Pursuant to Reform Justice Criminal Iin~lement CONTENTS OF TABLC  8  .......................................  OVERVIEW AND INTRODUCTION
[brief] The warrant in Bivins authorized the search of a private residence and "all persons present reasonably believed to be connected to said property and investigation."  After the warrant's execution had begun, officers were notified of a person exiting the premises and walking away; the officers found the defendant in a gray Pontiac several houses away.  The Court held that the "all-persons-present" search warrant for the premises did not authorize the search of the defendant when there were no facts demonstrating that he had been present at the scene at the time the warrant was being executed.  *Bailey v. United States*, 568 U.S. 186, 185 L. Ed. 2d 19 (2013) (not permitting search of persons found blocks away from the premises that was the sole subject of the search warrant).
[brief] The judge gave “some weight” to mitigating factor four, N.J.S.A. 2C:44-1b(4) (substantial grounds tending to excuse or justify defendant’s conduct, though failing to establish a defense), because defendant suffered from Autism Spectrum Disorder, although this diagnosis did not create substantial ground tending to excuse or justify defendant’s conduct.  (17T206-1 to 209-4).  He gave “limited weight” to mitigating factor seven, N.J.S.A. 2C:44-1b(7) (defendant has no history of prior delinquency), because defendant was 16-years old at the time of the crimes and thus “had minimal life behind him to incur any criminal activity. ” (17T209-16 to 210-16).  He gave “minimal weight” to mitigating ⁹  The judge found aggravating factors two, four, five, six, seven, eight, eleven, thirteen, fourteen, and fifteen inapplicable.
[brief] [...]:  I'm going to object.  It's a mischaracterization of the testimony of what the system should be operated on.  I believe that was not the question that was asked.  The question that was asked was what the Company is doing to address the issue that was pointed to in the testimony.  BY  [...]: Q.  As modified, you can answer that question.  I think I'm just repeating what you said, but ... we're talking about a pressure level of 450 PSI, correct?
[brief] To the contrary, however, the cited testimony of Defendant [...] was not regarding her own intent and desires, but rather that of [...].  (5T122:11-19 (“[H]e did not want the Alessi name, the [...], whatever, attached to my cleanup and only wanted to clean it up under my DEP number. ”)).  2.  The Trial Court Improperly Relied on Extrinsic Evidence to Alter the Terms of the PSA
[brief] The Defendants claim that decision not to compel a settlement conference was “manifestly unjust” because the Defendants “believed that the controversy would be resolved through settlement discussions, as per [...]’s guidance. ” (Db22).  The Defendants’ beliefs with regard to the prospects for settlement (even taken at face value notwithstanding their documented refusal to accept a sale of the Boonton Property to anyone but themselves and their tender of a bid for less than the fair market value of the Boonton Property), do not render unjust the trial court’s decision not to compel a settlement conference.
[brief] The trial court erred in ruling that defendant’s trial counsel provided constitutionally effective assistance with regard to the voir dire of the jury panel following the revelation about Juror No. 14 (DA86)  The trial court said that “Petitioner's claim that trial counsel's decision to not request a voir dire of the remaining jurors was merely a complaint based on matters of trial strategy. ”  But “[...] at least according to [...] was one of the men that was inside the store at the time of the robbery. ”  Juror No. 14 knew this alleged victim Jones.  1T26.  So one of the prosecution witnesses and claimed victim was a man “who juror 14 knew, right, was one of the alleged robbery victims inside the store,” 1T28.  By “not individually asking the other members of the panel,” defense counsel was “basically … taking juror 14's word that she didn’t say anything else to the other jury members,” 1T30.  Q  If you had individually asked the other jurors, right, on the panel, you don’t know what answers you would have gotten in terms of if you would have said, okay, juror one, for example, what did juror 14 say to you about know -- you know, did you – did she say anything about knowing this witness, did she name the witness, what did she say about the witness, did she say anything else about the witness.  You don’t know what the answer would be, right --  A No. 1T31  Q  Let me ask you a question.  If you had asked the other individuals or if they could have contradicted what juror 14 said about what she told them about [...], right?  1T33  The trial court erred in ruling this was reasonable strategy because there was great potential prejudice from the [...] – Juror No. 14 connection, which counsel failed to ensure did not taint the other jury members by declining to voir dire the entire panel.
[brief] **II.  THE CHANCERY DIVISION ERRED IN GRANTING SUMMARY JUDGMENT ON PLAINTIFF’S CLAIM FOR NUISANCE (T64:4–68:17)**  In its oral statement of reasons on Defendants’ motion for summary judgment on the First Count of Plaintiff complaint, which asserts a claim for nuisance, the Chancery Division concluded that [...]’s expert opinion lacked support regarding the amount by which Defendants’ modifications to the driveway increased the rainwater runoff from Defendants’ Property to Plaintiff’s Property.  [*See* T64:24–65:7, T67:20–24].  Having determined to disregard [...]’s opinion, the Chancery Division then concluded that the record lacked sufficient evidence that Defendants had unreasonably redirected the flow of rainwater onto Plaintiff’s property and granted summary judgment on the nuisance claim.  [*See* T67:20–68:10].  The Chancery Division’s reasoning is fundamentally flawed in two material ways: (1) [...]’s opinion was in fact supported and was not “pure speculation” amounting to a net opinion; and (2) [...]’s opinion is not essential to establish Defendants’ liability.
[brief] The Sailor decision was rendered in 2001.  Significantly, the Legislature has not elected to correct the Court’s holding in the Sailor case and insert a right to a jury trial into the Fraud Act (in actions brought by the State or by private parties) in the subsequent 11 years.  The Legislature’s failure to do so should be deemed a recognition that the Legislature did not intend for causes of action under the Fraud Act to be tried before a jury.  As the Sailor court noted, “Had the Legislature intended to create the ... right [to a jury trial under the Fraud Act] here, it would have done so and clearly had the chance when the Act was last amended in 1997.  Its absence means that there is no statutory right to a jury trial. ”  Id. at 322.