ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] [...] ERRED IN FINDING THE PLAINTIFFS’ AFFIDAVITS OF MERIT INSUFFICIENT AND DISMISSING DEFENDANT [...] WITH PREJUDICE (Pa77; 3TR8:1-9:7)  A.  The Affidavits of Merit Supplied by the Plaintiffs are Statutorily Sufficient pursuant to N.J.S.A. 2A:53A-27 (Pa41, 57)  Pursuant to N.J.S.A. 2A:53A-27, a plaintiff in an action against a licensed professional must produce an affidavit from an expert attesting to the merits of the claim.  By its terms, the Affidavit of Merit Statute "applies to all actions for damages based on professional malpractice."  Ryan v. Renny, 203 N.J. 37, 50-51 (2010).  Furthermore, the Affidavit of Merit Statute sets forth that in the case of an action for medical malpractice, the person executing the affidavit shall meet the requirements of a person who provides expert testimony or executes an affidavit as set forth in N.J.S.A. 2A:53A-41 (the “Patients First Act”).  The dual purpose of the Affidavit of Merit (“AOM”) statute is to “weed out frivolous lawsuits early in the litigation while, at the same time, ensuring that plaintiffs with meritorious claims will have their day in court. ”  Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144, 178 (2003).  By enacting the AOM statute, the Legislature did not intend to "create a minefield of hyper-technicalities in order to doom innocent litigants possessing meritorious claims."  Ferreira, 178 N.J. at 151, 836 A.2d 779 (quoting Mayfield v. Cmty. Med. Assocs., P.A., 335 N.J. Super. 198, 209, 762 A.2d 237 (App. Div. 2000)).  Because the statute's aim is "to identify and eliminate unmeritorious claims against licensed professionals and to permit meritorious claims to proceed efficiently through the litigation process," our courts recognize the doctrines of substantial compliance and extraordinary circumstances, which can "temper the draconian results of an inflexible application of the statute" when an AOM is insufficient.  Meehan v. Antonellis, 226 N.J. 216, 229 (2016) (quoting Ferreira, 178 N.J. at 151, 836 A.2d 779).  As held in Cornblatt v. Barow, 153 N.J. 218, 241 (1998), “the only part of the statute detailing what must be included in the [AOM]” is the specification “that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices."  The AOM statute "is silent as to any requirement that the affidavit specifically identify a defendant by name."  Medeiros v. O'Donnell & Naccarato, Inc., 347 N.J. Super. 536, 540 (App. Div. 2002).  The wording of the Affidavit of Merit statute "anticipated vicarious liability claims...by mak[ing] the affidavit requirement applicable to 'any action for damages...resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation.'"  Haviland v. Lourdes Medical Center of Burlington County, 250 N.J. 368, 382-383 (2022) (quoting Shamrock Lacrosse, Inc. v. Klehr, Harrison, Harvey, Branzburg & Ellers, LLP, 416 N.J. Super. 1, 23 (App. Div. 2010)).
[brief] (See 1T).  Therein, the State successfully moved to admit the redacted interrogation video into evidence without objection.  (2T:45-23 to 46-4).  Prior to playing the video, the trial prosecutor requested a conference outside of the presence of the jury.  (2T:46-19 to 20).  During a conference in chambers, the trial prosecutor advised that the interrogation video was the subject of the Appellate Division decision reversing the earlier jury verdict.  (2T:47-14 to 18).  The prosecutor advised that the version of the interrogation video that he was seeking to introduce “ha[d] been heavily redacted from the original played at last trial. ”  The trial prosecutor continued:  Redactions have gone through many states.  I have shared them with (defense counsel).  I will let him speak, Judge but we have had agreements about what would be redacted in accordance with the appellate division opinion.  We’ve made different rounds of redactions.  The State believes that the redactions satisfy the appellate division.  I just want the record to reflect that this has – this has been shown to (defense counsel).  His client actually viewed the video too.  With additional suggestions for redactions, which have since been made…I believe all parties are in agreement what is about to be played.  There’s agreement that it satisfies the appellate division’s concerns from last trial.  (2T47:20-48:11).
[brief] (Da53).  Next, the defense argues that the trial court’s partial summary judgment decision necessarily means that the [...] can exercise their right to reverter of the “Beach Front Section. ”  As the “… the trial court plainly ignored the [...]’ intent, [...]’s ability to “promote and protect the general welfare and property rights of the property owner members in their use and enjoyment of their property at Ocean Beach”.  (Db35).  In effect, Defendant is claiming that the deceased developer, [...], or perhaps the [...], will file a claim of reverter because [...] is not enforcing newly adopted deed restrictions and a new height restriction which the developer never sought to impose nor adopted.  First, reverter only arises if the Club was specifically charged with enforcement of development rights and second, the club could only enforce those deed restrictions of record.
[brief] *Kordell v. Allstate Ins. Co.*, 230 N.J. Super. 505, 509 (App. Div.), *cert. den.* 117 N.J. 43 (1989).  In contrast, *Foss v. Cignarella*, 196 N.J. Super 3718 (Law Division, 1984), which was also cited by the Defendant in its trial brief, is a 40-year-old Law Division case involving an injury caused by an intentional act, distinguishable from the present case.
[brief] [...] testified that she had met defendant through [...] (23T60-14 to 23T61-11).  She shared a house with defendant in 2017 and he would drive people around as a way to make money (23T55-8 to 23T56-23).  Defendant let [...] borrow the Jeep (23T79-16 to 24).  Two weeks prior to the murder, [...] and his girlfriend had stayed at the house for three or four nights (23T57-16;23T68-6 to 23T69-23).  On the day [...] left, he stole Foster's disability debit card and withdrew $241.00, leaving only $9.00 on the card (23T70-5 to 25).  Foster said [...] had stolen from his mother and "a lot of people" (23T74-1 to 4).  He had lost his job two weeks earlier because he stole his employer's truck with wood inside and sold the wood (23T96-11 to 25).  In a statement to the police on March 15, 2017, Foster said that on the previous Friday or Saturday night, defendant had gone out at 3:00 p.m. and he did not return until 4:00 a.m. the next morning (23T72-8 to 23T73-18;23T88-16 to 22).  [...] had been calling since then, but defendant had ignored the calls and texts, and he had changed the contact name for [...]'s phone number to "Jill" (23T73-17 to 25;23T81-11 to 15;23T89-11 to 24).  Foster said [...] had been staying in defendant's lake house, and Foster and defendant picked him up in defendant's Jeep from a dirt road near Lake Garrison the week before the murder (23T74-16 to 23T75-20).
[brief] Defendant’s Case is Distinguishable from State v. [...], 449 N.J. Super. 526 (App. Div. 2017).  In making its decision, the lower court relied upon this Court’s decision in [...] to lend credence to the position that the term “pending” within N.J.S.A. 2C:35-14a(5) should relate solely to the Essex County firearm charges.  (Sa81-Sa82).  Specifically, the lower court, referring to dicta within the [...] decision, highlighted the following line:  For example, anyone who possessed a firearm at the time of the offense, or had a pending charge involving a firearm, and anyone who had been previously convicted on two or more separate occasions for crimes of the first, second or third degree, other than possession of CDS, was ineligible for special probation.  N.J.S.A. 2C:35-14(a)(5) and (6) (2000).  [[...], 449 N.J. Super. at 533.  (Emphasis added).]  (Sa82).  As such, the lower court concluded that because the defendant’s Essex firearm charges are no longer “pending,” he is rendered legally eligible for admission into Recovery Court.  (Sa83).  The lower court’s reliance on [...] is erroneous.  In [...], this Court interpreted N.J.S.A. 2C:35-14a(7) which provides that a Recovery Court judge may sentence a defendant to Recovery Court Special Probation if, among other findings, it finds “the person has not been previously convicted or adjudicated delinquent for, and does not have a pending charge of murder, aggravated manslaughter, manslaughter, kidnapping, aggravated assault, aggravated sexual assault or sexual assault.  . .”  [...], 449 N.J. Super. at 528.  (Emphasis added).  Defendant [...] pleaded guilty to second degree Robbery and third degree Aggravated Assault, among other charges, the latter of which was merged into the Robbery charge.  Ibid.  [...] was admitted into Recovery Court over the State’s objection after the Recovery Court judge concluded the defendant had “no pending charge for a disqualifying offense” under Factor a(7) as a result of the merger.  Id. at 531.  This Court found the defendant satisfied Factor a(7) without regard to the issue of merger.  Id. at 534.  In its review of the legislative history of the 2012 amendment to N.J.S.A. 2C:35-14, this Court determined the Legislature’s intent was clear in excluding the crime for which the defendant is facing sentence from consideration under Factor a(7).  Id. at 535.  Thus, the list of prohibited offenses under Factor a(7) does not apply to the conviction for which the offender is currently being sentenced.
[brief] [4T50-7 to -16].  [...] indicated the officers to the presence of narcotics in the vehicle by tensing his body and sitting at the spot where he detected the odor of narcotics.  [4T50-17 to -24].  Because of voids in the vehicle, spaces from where the odor of narcotics could escape, [...] could not indicate exactly where the odor emanated from, only that narcotics were present.  [4T87-24 to 88-12].  The officers conducted a search of the vehicle.
[brief] 2006 Special Session Joint Legislative Committee Public Employee Benefits Reform Final Report, (Dec. 1, 2006).  Recommendation No. 10 of the Joint Legislative Committee again urged that all professional services contractors be excluded from PERS membership.  The Committee stated:  [B]oth the Internal Revenue Service and the New Jersey Department of Labor have rules that govern the distinction between an employee and an independent contractor.  The purpose of this recommendation is to ensure that all public employers adhere to these rules.  [Id. at 83.]  In the years that followed, the Legislature enacted a series of sweeping reforms designed to curb abuses and restore fiscal integrity to the retirement systems.
[brief] As is relevant herein, the issuance of a search warrant specifying only a place does not authorize the search of persons found in or near that place during the execution of the warrant.  Byrnes, *Current N.J. Arrest, Search and Seizure*, (GANN: 2021-22 ed.), § 7:4.  However, a search warrant for a place does authorize the police to detain and to pat-down (if there is a reasonable suspicion that they have a weapon on them), but not fully search, owners or occupants of premises during the search to secure the premises and to ensure the safety of the officers and the efficacy of the search.  See *Michigan v. Summers*, 452 U.S. 692 (1981); *Los Angeles County v. Rettele*, 550 U.S. 609, 613-614 (2007).  In *Summers*, the search warrant specified only a place and justified the detention, on less than probable cause, of a person leaving the premises who later turned out to be the owner.  In contrast, and as is most important in the case at bar, a search warrant for a place does not justify a detention once an occupant "has left the immediate vicinity of the premises to be searched."
[brief] At no point in the then-six-year history of this case, did [...] claim that his “writing style” deprived him of a meaningful opportunity to present his case.  [...] cannot voluntarily proceed \textit{pro se} for two years, and argue \textit{for the first time on appeal} that his “writing style” prevented him from having a meaningful opportunity to present arguments.  Moreover, to argue that [...] doesn’t write well enough to represent himself \textit{pro se} is preposterous.  He wrote well enough to get into, and graduate from, [...], to pass the bar exam, and to function as [...]’s CEO and General Counsel for decades.  If [...] was incapable of representing himself, he could have retained counsel at any time.  He chose not to.  \(^9\)  Whether [...] had yet decided whether counsel would handle the motion is beside the point.  [...] could have informed the Arbitrator about his pending determination whether that counsel would handle the arbitration.  Instead, [...] remained silent for completely transparent tactical reasons.  The confirmation of the Phase II Partial Final Award should be affirmed.
[brief] Conceptually, the narrower the search terms are, the more efficient \(^2\) https://www.uscourts.gov/sites/default/files/litigation_cost_survey_of_major_companies_0.pdf. the discovery process will be, keeping costs down.  No matter how precise the search term is, however, there is no guarantee that all the returns – the search “hits” – will be relevant to the pending dispute.  Rule 4:10-2’s “relevancy” standard applies to those irrelevant “hits” just as it applies to any discovery.  The trial court erred in holding that Rule 4:10-2’s relevancy standard does not apply to Defendants’ production of ESI.  B.
[brief] Try as he might, defendant cannot avoid the fact that a psychological evaluation is not required where a sentence of imprisonment that includes a period of parole ineligibility is imposed, as is the case here.  Presentence reports are governed by N.J.S.A. 2C:44-6, which provides that “[t]he court shall not impose sentence without first ordering a presentence investigation of the defendant and according due consideration to a written report of such investigation when required by the Rules of Court. ”  N.J.S.A. 2C:44-6a.  Among other information, the presentence report shall also include a medical history of the defendant and a complete psychological evaluation of the defendant in any case in which the defendant is being sentenced for a first or second degree crime involving violence and: (1) the defendant has a prior acquittal by reason of insanity pursuant to N.J.S.2C:4-1 or had charges suspended pursuant to N.J.S.2C:4-6; or (2) the defendant has a prior conviction for murder pursuant to N.J.S.2C:11-3, aggravated sexual assault or sexual assault pursuant to N.J.S.2C:14-2, kidnapping pursuant to N.J.S.2C:13-1, endangering the welfare of a child which would constitute a crime of the second degree pursuant to N.J.S.2C:24-4, or stalking which would constitute a crime of the third degree pursuant to section 1 of P.L.1992, c.209 (C.2C:12-10); or (3) the defendant has a prior diagnosis of psychosis.  The court, in its discretion and considering all the appropriate circumstances, may waive the medical history and psychological examination in any case in which a term of imprisonment including a period of parole ineligibility is imposed.
[brief] [...] ........................................  Da 1-12  Jury Verdict Sheet ........................................................................  Da 13-18  Judgment of Conviction .................................................................  Da 19-22  Amended Judgment of Conviction ................................................  Da 23-26  Notice of Appeal ...........................................................................  Da 27-29  ### TABLE OF AUTHORITIES | Cases | PAGE NOS. | |----------------------------------------------------------------------|-----------| | **District of Columbia v. Heller**, 554 U.S. 570 (2008) | 48 | | **In re Accutane Litig.**, 234 N.J. 340 (2018) | 30 | | **Keeble v. United States**, 412 U.S. 205 (1973) | 28 | | **State v. Alexander**, 233 N.J. 132 (2018) | 26 | | **State v. Branch**, 301 N.J. Super. 307 (App. Div. 1997), rev’d in part on other grounds, 155 N.J. 317 (1998) | 23 | | **State v. Carey**, 168 N.J. 413 (2001) | 56 | | **State v. Cavallo**, 88 N.J. 508 (1982) | 36 | | **State v. Chavies**, 345 N.J. Super. 254 (App. Div. 2001) | 23, 25 | | **State v. D’Amato**, 218 N.J. Super. 595 (App. Div. 1987) | 53 | | **State v. Dalziel**, 182 N.J. 494 (2005) | 56 | | **State v. Fuentes**, 217 N.J. 57 (2012) | 56, 57 | | **State v. Gentry**, 439 N.J. Super. 57 (App. Div. 2015) | 24, 25 | | **State v. Green**, 86 N.J. 281 (1981) | 43 | | **State v. Grunow**, 102 N.J. 133 (1986) | 43 | | **State v. Hill**, 121 N.J. 150 (1990) | 38, 40, 41, 44 | | **State v. J.L.G.**, 234 N.J. 265 (2018) | 31 | | **State v. Jaffe**, 220 N.J. 114 (2014) | 57 | | **State v. Jamerson**, 153 N.J. 318 (1998) | 31, 33 | ### TABLE OF AUTHORITIES (CONT'D) | Cases (Cont'd) | PAGE NOS. | |-------------------------------------------------------------------------------|-----------| | **State v. Kelly**, 118 N.J. 370 (1990) | 46 | | **State v. Kelly**, 97 N.J. 178 (1984) | 30, 31, 50| | **State v. Locascio**, 425 N.J. Super. 474 (App. Div. 2012) | 32 | | **State v. Maloney**, 216 N.J. 91 (2013) | 26, 27 | | **State v. Martin**, 119 N.J. 2 (1990) | 43 | | **State v. McFarlane**, 224 N.J. 458 (2016) | 57 | | **State v. McKinney**, 223 N.J. 475 (2015) | 26, 43 | | **State v. Melvin**, 248 N.J. 321 (2021) | 60 | | **State v. Natale**, 184 N.J. 458 (2005) | 56 | | **State v. O’Donnell**, 117 N.J. 210 (1989) | 56 | | **State v. O’Neil**, 219 N.J. 598 (2014) | 24, 25 | | **State v. Oguta**, 468 N.J. Super. 100 (App. Div. 2021) | 46 | | **State v. Olenowski**, 253 N.J. 133 (2023) | 31, 35 | | **State v. P.H.**, 178 N.J. 378 (2004) | 40, 42 | | **State v. Rodriguez**, 195 N.J. 165 (2008) | 24, 25 | | **State v. Sloane**, 111 N.J. 293 (1988) | 28 | | **State v. Thomas**, 187 N.J. 119 (2006) | 26 | | **State v. Vick**, 117 N.J. 288 (1989) | 53 | ### TABLE OF AUTHORITIES (CONT'D) | Statutes | PAGE NOS. | |-------------------------------------------------------------------------|-----------| | N.J.S.A. 2C:3-4(b)(2) | 24 | | N.J.S.A. 2C:11-3(a)(1) | 4 | | N.J.S.A. 2C:11-3(a)(2) | 4 | | N.J.S.A. 2C:11-3(a)(3) | 4 | | N.J.S.A. 2C:13-1(b)(1) | 4 | | N.J.S.A. 2C:15-1 | 4 | | N.J.S.A. 2C:20-2(b)(4) | 53 | | N.J.S.A.
[brief] **PLAINTIFF’S REPLY**  I.  Justice Delayed Is Justice Denied.  Public entities and officials—fiduciaries of a public trust—are not immune from judicial scrutiny and remedies.  More than 221 years ago, our United States Supreme Court established the fundamental constitutional doctrine of judicial review.  *Marbury v. Madison*, 5 U.S. (1 Cranch) 137 (1803).  No one is above the law.  Public entities and officials are not infallible.  Public entities and officials make mistakes.  Presumptions of validity are rebuttable by clear and convincing evidence.  See, *New Jersey Realtors v. Township of Berkeley*, __ N.J. Super. __ (App. Div. July 31, 2024) (invalidating a local ordinance restricting ownership at certain senior housing communities).  Government decisions must satisfy standards of legitimate authority, valid process, good faith, pertinent consideration, proportionately, non-arbitrariness and antidiscrimination.  Ultra vires actions are voidable.  See, *James Meyers v. State Health Benefits Commission*, 256 N.J. 94, 101 (2023) (per curiam) (“The law distinguishes between actions otherwise within an entity’s authority but marked by procedural irregularity and actions that are beyond the entity’s authority. ”); *257-261 20th Avenue Realty, LLC v. Alessandro* Roberto, 477 N.J. Super. 339, 360 (App. Div. 2023) (“[J]udicial power is to be exercised to strike down governmental action only at the instance of one who is himself harmed, or immediately threatened with harm, by the challenged conduct .
[brief] DEFENDANT’S SENTENCE IS EXCESSIVE AND SHOULD BE REMANDED FOR RESENTENCING.  In his initial brief, [...] pointed to several key errors at sentencing that render his sentence excessive and require a remand for resentencing.  (Db 31-34)  In response, the State asserts that since [...] was eligible for an extended term under N.J.S.A. 2C:43-6(f), there could be no conceivable issue with the seven-year sentence imposed by the court, and further, that even if this Court remanded, the trial court “would be unable to reimpose the same seven-year sentence.
[brief] The Appellant named as, [...] (“Defendant”) was charged on a Complaint – Summons on June 26, 2024 for allegedly violating N.J.S.A. 4:22 – 24(b) and N.J.S.A. 4:22 – 17(c)(3) on May 11, 2024 in the Township of Raritan (Da17).  According to the charging document, both alleged offenses are crimes of the third degree.  On August 7, 2024, Defendant filed a Notice of Motion to Dismiss the State’s Complaint on the grounds that N.J.S.A. 4:22 – 24(b) and N.J.S.A. 4:22 – 17(c)(3) are unconstitutionally void for vagueness and overbreadth.  (Da1 – Da24)  The State opposed that motion in writing on August 28, 2024 (Da25 – Da49).  The Defendant filed a reply brief on September 8, 2024 (Da50 – Da57).  The trial court took no testimony and heard oral argument on September 11, 2024 and then reserved decision.  ---  1  The procedural history and statement of facts were intentionally combined as they are inextricably intertwined.  2  This transcript shall be referred to as “1T. ”  On September 25, 2024, the trial court issued an order denying the Defendant’s motion to dismiss indictment [sic] (Da58).  That order was “deleted” on September 25, 2024 (Da59) and then replaced with an order denying the Defendant’s “motion. ”  (Da60)  A Statement of Reasons then followed (D – Da65).  The Defendant has not been and never was indicted.  What appears to be a 45 day stay of proceedings was entered by way of email issued by the trial court judge’s law clerk (Da65 – Da66).  The trial court is not issuing a R. 2:5 – 1(b) statement or opinion (Da56).  The Appellant was granted leave by this Court to appeal on an interlocutory basis on November 8, 2024 (Da67).
[brief] See State v. Helton, 146 N.J. Super. 98, 101 (App. Div. 1975), aff'd 72 N.J. 169 (1977), involving a federal search warrant for the search of a tavern in a narcotics investigation.  The warrant did not mention persons found in the tavern.  The court invalidated the search of the patrons on the premises during the execution of the search warrant, holding that there was no basis to believe that they were all engaged in criminal activity.  A search warrant authorizing searches of "all persons present at a place or location" have generally been invalidated absent a showing that the person's presence necessarily gave rise to probable cause to believe the person was involved in the criminal activity taking place there.  See generally Ybarra v. Illinois, 444 U.S. 85 (1979).  In State v. Sims, 75 N.J. 337, 350-351 (1978), the search warrant authorized the search of a service station based on probable cause to believe that there was illegal gambling on the premises.
[brief] Plaintiffs faced no prejudice by [...]’s denial of their request to replace [...].  They still possessed a qualified expert who could testify at trial.  Plaintiffs argue that they needed to switch experts because the issues raised by [...] and [...] were the most important issues at trial.  While that is arguably true, it is only true because the other defendants had settled at the time of trial, leaving [...] as the only defendant.  C.  [...] did not err in denying plaintiffs’ Motion for Reconsideration Rule 4:42-2 governs motions for reconsideration of interlocutory orders.