ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] PRELIMINARY STATEMENT  Defendants-Respondents Marisha and [...] (“Applicants”) spend considerable time within their brief in opposition attempting to characterize and obfuscate Appellants’ arguments.  However, Applicants have no rebuttal for the actual and straightforward arguments in support of this appeal, which are threefold.  First, there stands a novel constitutional question as to whether a challenge to the issuance of a Certificate of Appropriateness by the [...] (the “Landmarks Commission”), which is not required to be published under the Rules of the Court, is time barred based on the date that a party had “actual notice,” as argued by the Applicants below and in this instant appeal.  Second, preservation of the aesthetics of a historic district, particularly a historic district found on the National Registry of Historical Places, is of public interest.  Third, a resolution issued by Defendant-Respondent [...] (the “ZBA”), or any zoning board for that matter, that relies upon purported facts and evidence not found in any verbatim record due to the failure of the automated recording system is invalid pursuant to N.J.S.A. 40:55D-10(f).
[brief] The [...] was fully aware of it when it promoted her to Sergeant in 2018.  Nothing about her employment history changed between this 2018 promotion and her certification for the promotion to Lieutenant.  The [...] relies upon the New Jersey Attorney General Guidelines on Internal Affairs ("AG Guidelines") in support of the improper provision of counselings and written reprimands that, pursuant to the Collective Negotiations Agreement between the [...] and the [...], should have been removed from Appellant’s file.  The AG Guidelines December 4, 2019 Supplemental Directive (RA101-108) clearly states that: Internal Affairs Policies & Procedures (IAPP) places strict confidentiality requirements on records obtained and created during Internal Affairs investigations, to preserve the integrity of the investigative process.  These records may only be released under a narrow range of circumstances including when a police department’s law enforcement executive has “good cause”.  The revised IAPP makes clear that good cause may exist (a) when another law enforcement agency requests records related to a current or former officer that the agency is considering whether to hire; or (b) if a Civilian Review Board that meets certain minimum procedural safeguards has requested access to a competed investigation file.  (RA104-105)  The [...] providing Internal Affairs records to the [...] is not supported by the AG Guidelines.  The [...] is neither a law enforcement agency nor a Civilian Review Board, as defined in the AG Guidelines.  (RA 105 Section II, Clarification Regarding Civilian Review Boards)  The [...] and [...] improperly reviewed and relied upon this documentation in violation of the AG Guidelines.  Pursuant to N.J.A.C. 4A:5-2.2(c), as a veteran seeking promotion that was ranked number one on the Certified List, Appellant should have been promoted to Lieutenant when the Respondent [...] failed to both initially request the removal of her name from the Certified List and later improperly attempted to justify a list removal without just cause.
[directive] (c)  Officers shall continuously monitor the person’s condition while being restrained, as death can occur suddenly and develop beyond the point of viable resuscitation within seconds; (d)  Whenever possible during team restraint, a “Safety Officer,” with the responsibility to monitor the health and welfare of the person during restraint, should be designated; (e)  The arrested person must not be transported in the prone position; and (f)  The arrested person should be monitored prior to, during, and at the conclusion of the transport.  3.6.2  Officers shall continually monitor the condition of the subject(s) in their custody for the following warning signs of positional asphyxiation: (a) verbal complaints of being unable to breathe properly, although be aware that a person suffering breathing difficulties may not be able to complain about their crisis; (b) visual signs that the subject is struggling or exhibiting increased effort to breathe; (c) gurgling/gasping sounds with foam or mucus coming from the nose or mouth; (d) display of a heightened level of aggression during restraint, which may be a physiological response to fighting for air, such that any increased resistance during restraint of a person should be regarded with caution; (e) sudden behavioral changes, such as going from being violent and noisy to passive, quiet, and tranquil, or alternatively, suddenly becoming more aggressive; (f) blue discoloration of facial skin (cyanosis); (g) swelling, redness or blood spots to the face or neck; and (h) any loss or a reduced level of consciousness.  3.7
[brief] Appellant, the [...], appeals from the [...]’ ([...]) December 21, 2022 order granting Co-Respondent [...]’s ([...]) petition to construct a natural gas regulator station and associated equipment at [...] in Holmdel Township, and finding that Holmdel’s local land use law and any other ordinances, rules, or regulations promulgated pursuant to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -163, neither apply to nor preclude [...]’s proposed project.
[brief] In re Carter, 191 N.J. 474 (2007) ..................................................................  7  In re Hermann, 192 N.J. 19 (2007) ..................................................................  7  In re Hess, 422 N.J. Super. 27 (App. Div. 2022) ..............................................  11, 14, 15, 16  In re Jacalone, 2015 N.J. Super. Unpub. LEXIS 1576 (App. Div. 2015)  .............  12  In re Stallworth, 208 N.J. 182 (2011) ............................................................... 6, 7  Klumb v. Bd. of Educ. of Manalapan-Englishtown Reg'l High School Dist., 199 N.J. 14 (2009) .................................................................  10  Manalapan Realty, L.P. v. Twp. Comm. of Twp. of Manalapan, 140 N.J. 366 (1995) ..................................................................................  7  Mayflower Sec. Co.  v. Bureau of Sec., Div. of Consumer Affairs, 64 N.J. 85 (1973) .................................................................................. 7 Mazza v. Bd. of Trs., 143 N.J. 22 (1995) ......................................................... 7 McCann v. Clerk of Jersey City, 167 N.J. 331 (2001) ........................................ 12, 13 Moore v. Youth Corr. Inst., 119 N.J. 256 (1990) ................................................ 12 Ramirez v. Dep't of Corr., 382 N.J. Super. 18 (App. Div. 2005) ......................... 6 State v. Hupka, 203 N.J. 222 (2010) ............................................................... 13, 15, 16 State v. Pavlik, 363 N.J. Super. 307 (App. Div. 2003) ....................................... 13 Uricoli v. Bd. of Trs., Police and Firemen's Ret. Sys., 91 N.J. 62 (1982) .... 9, 16, 17 Widdis v. Pub. Emp. Ret. Sys., 238 N.J. Super. 70 (App. Div. 1990) .................. 10 Zigmont v. Bd. of Trs., 91 N.J. 580 (1983) .......................................................
[brief] First, the trial court analyzed the Plaintiff’s arguments pertaining to the interpretation of the word “designed” in the Building Height Definition. \(^1\)  Second, the trial court reviewed the Board’s factual findings in its application of the Building Height Definition, \textit{i.e.}, that there was no mounding, terracing or other device designed to allow for increased building height.  The trial court analyzed this issue under an arbitrary, capricious or unreasonable standard and recognized that the Board reasonably accepted [...]’s expert testimony, and the testimony of the Board Planner and Board Engineer, over the objector’s expert testimony.  The arbitrary, capricious and unreasonable standard is the appropriate standard for the second part of the analysis because the Board was making a factual finding in the application of the Building Height Definition.  II.
[brief] The judge and prosecutor had ample time to notify me of the proper charge considering I appeared in court approximately 7 times for this case.  Therefore, this error deprived me of due process by having been charged with violating N.J.S.A. 39:4-50.2 but convicted of violating N.J.S.A. 39:4-50.4a.  *State v. Gately, 204 N.J. Super. 332, 336 (App. Div. 1985)* ("Legislation imposing penal sanctions, such as N.J.S.A. 39:4-50.2, must be strictly construed against the State.  The public is entitled to plain and unambiguous statutory language defining proscribed conduct; a vague and indefinite penal statute infringes that right."
[brief] ”  Melvin, 248 N.J. at 352.  And at both of those sentencings, the judge demonstrated that he is either incapable of or unwilling to follow the clear instruction from Comer – that he must avoid the “unacceptable likelihood” that “the brutal nature of an offense can overpower mitigating arguments based on youth. ”  Comer, 249 N.J. at 403.  Accordingly, the matter should be remanded to a different judge.
[brief] The names of counsels provided was not willing to take on the matter for various reasons; the Court noted they would no longer further adjournment, denied her ADA Title II accommodation in part.  \textsuperscript{40}  N.J. Ct. R.1:9; R. 4:14-2, R.1:5-2 and R. 1:2-4 \textsuperscript{41}  The defendant’s counsel discusses ineffectiveness of counsel [2T13:7-14 – 4/24/23] (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984)).
[brief] It is Plaintiffs’ understanding that [...] does not refuse to ever search [...]’s and [...]’s custodial files, but rather objects to doing so now, for two reasons.  First, [...] has raised the “apex doctrine. ”  That doctrine, however, is inapt.  The doctrine does not apply to whether high-ranking executives should be added as document custodians.  Even if the doctrine were applicable, it would not shield [...] and [...] because of their direct involvement and unique knowledge regarding key events and facts at issue in this case.  See Order Following April 14, 2021 Discovery Conference, In re Juul Labs, Inc., Mktg. Sales Practices, No. 19-md-02913-WHO (JSC) (N.D. Cal.), Dkt.  No. 1704 (ordering deposition of Altria CEO), Ex. 1.  Second, [...] has said Plaintiffs should wait.  But [...] has ordered substantial completion of document production in four months, and the parties continue to be at loggerheads regarding numerous core aspects of production (including, for example, the definition of relevance, the production of Plaintiffs’ data and non-custodial ESI, and other issues not yet briefed to the Special Master).  Delaying resolution of this issue will make meeting the substantial completion deadline all-but-impossible.  In the end, this is likely [...]’s goal.  If it is able to delay this issue long enough, it will run out the clock, preventing Plaintiffs from timely securing relevant custodial documents.  But given their intimate involvement in the issues giving rise to Plaintiffs’ allegations, it is already past time [...] and [...] were added as custodians and their relevant custodial files produced.
[brief] [...]'s second EMP argument is based entirely on misdirection and unsupported speculation; [...] claims that the EMP sets a goal of electrifying buildings including modern air and ground-sourced electric heat pumps, and that this will take place over a "very long and gradual transition away from natural gas."  Ha938; P-10at 16:8-17:18.  Yet he admitted that there is no such statement, or anything akin to it, in the EMP itself.  This claim is rather based on the theory, personal to him, that the electric grid will not be sufficiently prepared for many years to come to accept the increased load that will result from transitioning the building sector away from natural gas.
[brief] Examples of Plaintiff’s counsel’s overstepping the broad latitude allowed by the Courts in summations with regard to the retaliation claim include:  Then after she complained, after she’s berated at trick -- trunk or treat, suddenly, there’s an internal audit of her department.  Why?  Because [...] is saying [...]’s complaining and these are the complaints.  She’s being mistreated.  She doesn’t like this, and because she’s complaining.  Retaliation.  (7T:70:2-7).  This statement is especially prejudicial, as it leads the jury to believe that mere complaining about mistreatment is a protected activity when it is not.
[brief] James, Nowacki and related cases prohibit the parties’ experts from “bootstrapping” complex medical opinions and diagnoses contained in a non-testifying physician’s report through the expert’s own testimony.  In contrast, however, the Appellate Division in Konop v. Rosen, 425 N.J. Super. 391 (App. Div. 2012), found that the specific notation in a consulting physician’s report contained in the medical records that “Pt. has tics and was moving too much at time of procedure” was a factual statement, not an opinion and thus could not properly be excluded under N.J.R.E.-808.
[brief] On December 14, 2018, Special Master [...] filed a Master’s Report for a Mount Laurel Compliance Hearing, [...] (“Special Master’s Report”).  339a.  It advised the Court that there is a realistic probability of [...] fulfilling its affordable housing needs, including because [...] and [...] have agreed to build [...] Station and the Off-site Property:  Pursuant to the Settlement Agreement, the redeveloper will provide 29 affordable units, including 22 on-site affordable units and seven (7) affordable units through an off-site mechanism and/or a PIL as established in the redeveloper’s agreement.  On December 28, 2018, the land use board issued a resolution granting governmental approvals to [...] Station, and confirming [...] and [...]’s understanding that there would be seven units at the Off-site Property.  The Redevelopment Agreement and the Settlement Agreement, among other things, require the Applicant to provide for a total of twenty nine (29) affordable housing units.  The project will have 147 residential units including 22 COAH or Affordable units on site and Applicant will comply with the requirement of seven (7) off-site affordable units.  The residential units will be on the ground floor along Lincoln Boulevard and on the ground floor in the rear parking lot.  On December 21, 2018, the Court held a final fairness hearing regarding the plan for [...] to realistically fulfill its fair-housing obligations.  On January 25, 2019, the Court entered the Conditional Final Judgment:  The Court hereby accepts the Housing Element and Fair Share Plan and finds that it creates a realistic opportunity for satisfaction of the [...]’s Fair Share of low and moderate-income housing.
[brief] ”  Conrad v. Robbi, 341 N.J. Super. 424, 441 (App. Div. 2001).  R. 4:23-2(b) provides a number of sanctions a court is empowered to impose, with the choice of sanction informed in part by whether the party acted willfully and the degree of harm suffered harm by the opponent.  Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 115 (2005); cf. Baldyga v. Oldman, 261 N.J. Super. 259, 268 (App. Div. 1993) (error to exclude expert report received after discovery end date but before ruling on summary judgment).  [...] abused his discretion in this regard as well by failing to consider alternatives than barring outright the expert witness that plaintiffs wanted to call at trial on this critical issue.
[brief] (Pa656).  Subsequently, in January 2015, [...] asked [...] “several times when [[...]] was going to retire. ”  (Pa660).  [...] then actively sought to impede or outright prohibit Alan [...]’s participation at conferences in the Safe Water Drinking field.  (Pa661).  [...] had been the course coordinator of the annual [...] Safe Drinking Water Act update for 20 years.  (Pa661).  On February 3, 2015, [...] directed [...] to obtain information from Alan [...] about his presentation at the [...] Annual Conference to be held on Thursday, March 19, 2015 on “Effecting Behavioral change for Asset Management” which the [...] had accepted and placed on the agenda.
[brief] *Red Devil Tools v. Tip Top Brush Co.*, 50 N.J. 563, 575 (1967) (awarding fees as an equitable matter in an unfair competition suit and noting that “[t]his relief will . . . take care of its actual damages to date” and “will cut into any unjust enrichment of the defendants”).  “[C]ourts of equity and their remedies are distinguished for their flexibility, their unlimited variety, their adaptability to the circumstances, and the natural rules which govern their use. ”  *Banuch v. Cannon*, 356 N.J. Super. 342, 361 (Ch. Div. 2002).  [...] does not contest that his and [...]’s post-judgment conduct constituted a fraud on the court.
[brief] ”  Id., at 509.  The “theme” of the case expressed during Plaintiff’s counsel’s opening statement and closing argument was equally improper and requires reversal.  Plaintiff’s counsel’s “theme” was the same as in Jackowitz, substituting the concept of “accountability” for “consequences” and repeatedly imploring the jury to “make right” what the Defendants had failed to do over the course of “nearly five years. ”  In the process, counsel introduced matters which were neither admissible as evidence nor provable in the case.  Specifically, the Defendants themselves played no role in determining whether the case was going to be settled or tried.  Nonetheless, Plaintiff’s “theme” throughout was that the trial was necessary because the Defendants had failed to accept “accountability” for the consequences of their negligence.  In doing so, counsel also improperly attributed the length of time Plaintiff had waited to obtain accountability to Defendants’ failure to “make things right.
[directive] 6.2  De-Activation at the Request of a Person Seeking Emergency Medical Assistance.  Notwithstanding Section 5.3, an officer may de-activate a BWC when a person, other than an arrestee, is seeking emergency medical services for him or herself or another and requests that the BWC be de-activated.  In deciding whether to de-activate the BWC, the officer shall consider the privacy interests of the person requesting de-activation and the person in need of medical assistance.  6.3  Procedures for De-Activation Upon a Civilian’s Request.  When an officer de-activates a BWC pursuant to Section 6.1 or 6.2, the following procedures shall be followed: 1) the colloquy between the officer and the civilian concerning the request for de-activation shall be electronically recorded; 2) the officer before de-activating the BWC shall narrate the circumstances of the de-activation (e.g., “I am now turning off my BWC as per the victim’s request. ”); 3) the officer shall report the circumstances concerning the de-activation to his or her superior as soon as is practicable; and 4) the officer shall document the circumstances of the de-activation in any investigation or incident report concerning the incident under investigation.  See also Section 9.3 (notations (i.e., “tagging”) to indicate BWC recordings that raise special privacy or other issues).
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[brief] [...] “plead” to disorderly conduct – by definition that meant he had exceeded the line drawn by the First Amendment.  Similarly, in Fernandez v. City of Elizabeth, (3d Cir. No. 11-1294; Exhibit 8 to Defense Appendix), [...] is considered to be “guilty” of assaulting a police officer.  His action for police brutality would tend to suggest 1) he didn’t start the assault; 2) or, if he did, the police reaction was uncalled for.  As to the State, all the violations are pure Substantive Due Process & Equal Protection violations which caused a lot of grief (as intended) and delay but we eventually corrected all the attempts to thwart [...]’s desire to get PTI.
[directive] (2)  As used in this subsection, “healthcare professional” means a physician, physician assistant, nurse, or other health care professional whose professional practice is regulated pursuant to Title 45 of the Revised Statutes.  b.  When a minor believes that he or she is adversely affected by a substance use disorder involving drugs or is a person with a substance use disorder involving drugs as defined in section 2 of P.L.1970, c.226 (C.24:21-2) or is adversely affected by an alcohol use disorder or is a person with an alcohol use disorder as defined in section 2 of P.L.1975, c.305 (C.26:2B-8), the minor’s consent to treatment under the supervision of a physician licensed to practice medicine, or an individual licensed or certified to provide treatment for an alcohol use disorder, or in a facility licensed by the State to provide for the treatment of an alcohol use disorder, shall be valid and binding as if the minor had achieved the age of majority.  Any such consent shall not be subject to later disaffirmance by reason of minority.  Treatment for an alcohol use disorder or a substance use disorder involving drugs that is consented to by a minor shall be considered confidential information between the physician, the treatment provider, or the treatment facility, as appropriate, and the patient, and neither the minor nor the minor’s physician, treatment provider, or treatment facility, as appropriate, shall be required to report such treatment when it is the result of voluntary consent, except as may otherwise be required by law.  A-  14  ATTORNEY GENERAL STANDARDS FOR PROVIDING SERVICES TO VICTIMS OF SEXUAL ASSAULT
[brief] Defendant [...], Plaintiff’s Direct Supervisor, Had a History of Threats and Harassment.  Defendant [...], who currently serves as Defendant [...]’s Director of Nursing Operations, was the Lead Administrative Nursing Supervisor from approximately the mid-2000s until 2022.  (Pa26).  Defendant [...] testified that she did not recall receiving training on the anti-harassment policy and was unaware of any anti-retaliation policies in place (Pa656).  [...] displayed aggressive and abusive behavior characterized by verbal abuse.  (Pa188, Pa660).  Defendant [...]’s behavior was erratic, and often consisted of slamming file cabinets, cursing, and swinging her arms.  (Pa291, Pa661).  Defendant [...] would regularly curse at employees, yell, scream, and talk down to people.  (Pa244).  The conduct gave Plaintiff the feeling that Defendant [...], while working, was “ready to fight at any minute. ” (Pa657).  [...] made multiple complaints about Defendant [...]’s conduct to supervisors, including COO [...] (“[...]”), prior to June 2020.  (Pa660).  He also reported to [...] (“[...]”), the Director of the Med-Surg units, that Defendant [...] had yelled at him, and he made similar complaints to her on several occasions (Pa660).  [...] instructed [...] to discuss the matter directly with Defendant [...] or to take it up with HR, but she did not report the complaints herself, as required by hospital policy (Pa660).  Instead, [...] informed Defendant [...] of [...]’s complaints, which [...] believed exacerbated the situation (Pa660).  Plaintiff made similar complaints to [...] regarding Defendant [...]’s conduct.  (Pa660).  [...] had also made complaints about [...]’s conduct.  (Pa660 – Pa661).  [...] made a complaint in 2018 regarding an incident in which Defendant [...] blocked a door and refused to let her leave a room.  (Pa661).  [...] further complained about Defendant [...]’s repeated slamming of file cabinets and doors, yelling and cursing, and her threatening body language.  (Pa661).  Plaintiff, [...], and [...] had all made complaints about Defendant [...]’s conduct to [...].  (Pa663 – Pa664).  [...], over the years, had discussed the complaints with Defendant [...] to get her to modify her behavior.  (Pa663).  C.