CORRUPT DEFEAT OF NEW JERSEY'S CONSCIENTIOUS EMPLOYEE PROTECTION ACT

CORRUPTION OF
APPELLATE DIVISION JUDGE
HOWARD KESTIN

The favorable outcome (for me) of my pre-trial appeal was determined by a single judge, Edwin Stern who lives in West Orange, New Jersey. The demonstrably-corrupt outcome of my post-trial appeal was also determined by a single judge, Howard Kestin who lives in Wayne Township, New Jersey. 

My post-trial appeal for a new trial, in order to recover my ruinous losses that I incurred as a result of my action on behalf of others, was denied by Kestin who issued a brief  4 1/2 -page written statement regarding that denial one page of which was a copy of a trial transcript. I was horrified when I first read Kestin's statement because it is as brazenly and demonstrably corrupt as Oles' written opinion regarding the pre-trial dismissal of my case. 

I will present and explain Kestin's statement in the same way that I presented and explained Oles' written opinion. An uninterrupted photocopy of Kestin's statement is also provided (
click in order to see that photocopy, then click the Back button to return to this presentation).

I will demonstrate that Appellate Division Judge Kestin:
 
a) is a purposeful liar;
b) prejudicially made no reference to the legislative intent of the whistle blowing law because that well-known remedial intent, the ignoring of which was in part the basis for my appeal, contradicted his intended denial of my appeal;
c) prejudicially and corruptly ignored my claim of reversible error  because my claim, and the irrefutable evidence that supported my claim, also contradicted his intended denial of my appeal. 


My appeal was based upon two arguments neither of which Kestin addressed or mentioned because they both made the legitimate denial of my appeal impossible: 
1. the ignoring by Buczynski of case law that was cited by the pre-trial Appellate Division that established the remedial intent of the whistle blowing law that is to be liberally interpreted in order to encourage the conscientious behavior that makes possible the achievement of the law's social goals;
2. the reversible error that was corruptly made by Buczynski at trial regarding his protection of CMC from being judged by the jury regarding its guilt of staging the retaliatory criminal morphine theft.   

The above two arguments were prominently presented in the preliminary statement of my post-trial appellate brief (
click to see a copy of that preliminary statement, then click the Back button to return). My complete post-trial appellate brief is also provided (click to see the complete brief).    

Kestin's statement begins:

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Plaintiff David Miller appeals from a final judgment he obtained, following a jury trial, against defendants Community Medical Center and Saint Barnabas Health Care Systems for nominal damages in the amount of $3,500, and the order denying his motion for a new trial.
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Explanation of Kestin's (above) statement:  

Kestin begins his 4 1/2 page statement with two purposeful lies regarding the reasons for my appeal. Kestin states that my appeal is based upon two arguments: the token $3500 nominal award to me; and Buczynski's denial of my request for a new trial. 

Buczynski denied my request for a new trial, that I made in response to his knowingly worthless invitation, based on his  adherence to a twenty-day rule that specified the time period after the end of trial during which new trials can be requested; I did not base my appeal on Buczynski's adherence to a rule that he did not have the discretion to amend.

A review of the first few sentences of my post-trial appellate brief (
click to read that brief) verifies that I did not base my appeal to the Appellate Division on Buczynski's adherence to the twenty-day rule; rational readers will later recognize that Kestin is setting up a lie and a pretext for denying my request for a new trial. 

I based my appeal on two arguments (click to read the preliminary statement of my post-trial brief) :

1) Buczynski's deliberate and biased defeat of the remedial intent of the whistleblowing law;

2) Buczynski's deliberate action to protect CMC regarding its culpability of criminal retaliation.  


Legal education is presumably not required for a reader to recognize that Kestin was obligated to cite the reasons for my appeal that he could then attempt to refute in order to credibly deny my appeal. 

Kestin made no mention of the two reasons for my appeal because they represented an irrefutable argument to order a new trial. 



Kestin's statement continues:

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In their cross-appeal, defendants contend that plaintiff's complaint should have been dismissed at the close of plaintiff's case. After reviewing the record and applicable law in light of the arguments advanced on appeal, we affirm.

This is the second time this matter is before us. In the first appeal, we noted plaintiff had alleged in his complaint that his employment as a nurse at defendant Community Medical Center had been wrongfully terminated in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8. In our unpublished opinion dated May 6, 2005, we set forth the pertinent background information, including the contentions of the parties, and we incorporate those facts, by reference. We reversed the summary judgment entered in favor of defendants because we determined a rational jury could find that plaintiff's employment was terminated in retaliation for his whistle-blowing activities in violation of CEPA.

Plaintiff represented himself during the jury trial, which began on January 19, 2006. On February 2, 2006, after the jury rendered its verdict, the following colloquy occurred:

THE COURT: 
All right. Now, at this point the Judgment is in favor of the plaintiff in the amount of $3,500 for purposes of nominal damages.
Is there anything else that needs to come before the court? First we'll start with Mr. Miller. Mr. Miller?

MR. MILLER:
Your Honor, I guess I was looking through the law last night — and I could be mistaken about this — but I was going through the CEPA Statute, and it refers to damages and what the court can award. But I guess I'm mistaken by thinking the court can award something that the jury like, for example, it speaks about reimbursement of lost wages and things like that. You cannot do that because I didn't bring up those losses during trial; is that correct?

THE COURT:
That's correct. That's correct. In other words, the lost wages, because that was not presented to the jury, the only thing the jury could give you at this point is nominal damages in these sets of circumstances.

MR. MILLER: Your Honor, it's just a simple matter. I thought all I had to do was prove the four legal elements of CEPA. Obviously I had no idea that I had to demonstrate to them my actual losses. Obviously from my conversation with you prior to the jury, I actually submitted to you a list of the damages that I was seeking. And I understand your position; you couldn't have told me during the trial, "Mr. Miller, before you rest your case, you know, you really ought to address this issue." I know that you couldn't do that.
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Explanation of Kestin's statement:

The (above) transcript segment appears on pages 58 and 59 of the trial transcript of the last day of trial. The entire transcript of my six-day trial was 1000 pages long .

The (above) trial transcript segment on pages 58 and 59 that Kestin included in his statement is unquestionably irrelevant to the two reasons for my appeal, and it is irrelevant to any conceivable argument by anyone regarding any issue. However I will point out that within hours after the confusion (for me) of the trial's end I realized Buyczynski's corruption, and that Buczynski had the discretion to allow me to present the ready evidence of my losses to the jury that would have been interpreted not as bias in my favor but rather as an attempt to honor the undeniable legislative intent of the law.    

Kestin's statement continues:

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On appeal, plaintiff candidly concedes he "did not introduce evidence of monetary losses at the appropriate time during the course of the trial." Nevertheless, he contends that he did not receive a fair trial, and the trial court erred in denying his motion for a new trial.
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Explanation of Kestin's statement:

Kestin states that I did not present at the appropriate time the evidence of my losses, but he does not cite the well known case law that the whistleblowing law is to be liberally interpreted and that it is be considered remedial legislation.

Kestin knew that the intent of the law does not allow trial-winning whistle blowers to be denied remedies because of a technicality. 

Kestin knew that the only purpose of the trial was to obtain remedies.
 
A review of my post-trial brief (click to read a copy of my brief) will verify that I did not contend that Buczynski (the trial court) erred in denying my motion for a new trial, because that denial was based on court rules (regarding the twenty day window)
that Buczynski did not have the discretion to amend. 

Kestin cites transcript segments from pages 58 and 59 out of a 1000-page transcript, yet on page 58 of the same page that he cited the transcript shows that I requested on the last day of my trial to repeat the trial that I had just won. 

(click to see a photocopy of pages 58, 59, and 60)

Yet, Kestin lies in his statement that I did request a new trial until two months after the end of trial.

The above transcript segment also shows that I requested on the last day of trial that my evidence of losses be presented, yet Kestin merely states that I failed to show the jury the evidence of my losses.


Kestin also conceals the transcript segment on page 60 that shows Buczynski's lie to me that new trials can only be ordered by the Appellate Division (click to see a photocopy of pages 58, 59, and 60 of the trial transcipt that Kestin attempted to conceal).

Kestin's statement continues:

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The verdict of a jury should not be set aside unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly appears that there was a miscarriage of justice under the law. Poison v. Anastasia. 55 N.J. 2, 6-7 (1969); Baxter v. Fairmont Food Co.. 74 N.J. 588, 598-99 (1977); Law v. Newark Bd. of Educ.. 175 N.J. Super. 26, 37 (App. Div. 1980); see also R. 2:10-1. In this case, however, the record fully supports the verdict of the jury because plaintiff  failed to offer any evidence of lost wages or other damages.
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Explanation of Kestin's statement

Kestin cites case law in an attempt to justify the denial of my appeal, but that case law pertains to appeals by  litigants who lost a trial,  and that case law is irrelevant to the whistleblowing law. 

Kestin makes the effort to cite case law, but he clearly and deliberately avoided case law relevant to the whistleblowing law because that case law contradicted his intended denial of my appeal.   

Presumably I am not only the first whistle blower in New Jersey to win a whistle blowing trial, but I am the first pro se whistle blower to win a trial, and I am the first whistle blower to win a trial and be denied compensatory and punitive damages  because of an arguably minor procedural error.

Kestin stated that I failed to show the evidence of my losses to the jury, yet although he included a portion of page 59 of the trial transcript (above) he deleted the portion of page 59 that shows my plea on the last day of trial that someone hear the evidence of my losses (click to see page 59).

Kestin's statement continues: 

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In addition, as indicated by the trial court, plaintiff's motion for a new trial was untimely. Plaintiff's notice of motion for a new trial was filed on March 31, 2006, almost two months after the jury rendered its verdict on February 2, 2006. Pursuant to R. 4:49-l(b), a motion for a new trial must be made within twenty days of the jury verdict and this time limit is nonenlargeable. R. l:3-4(c) ("Neither the parties nor the court may, however, enlarge the time specified by . . . R. 4:49-l(b) . . . ."). Moreover, plaintiff's pro se status does not relieve him of his obligation to comply with our rules of procedure. State v. DuBois. 189 N.J. 454, 470 (2007); In re Estate of Schifftner, 385 N.J. Super. 37, 44 (App. Div.), certif. denied. 188 N.J. 356 (2006); Venner v. Allstate. 306 N.J. Super. 106, 110 (App. Div. 1997).
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Explanation of Kestin's statement:

Kestin lied that I did not request a new trial until two months after the end of trial. Pages 58 and 60 of the last-day transcript, portions of which  Kestin selectively included in his written statement, show that I requested twice on the last day of trial to repeat the trial that I just won.


Kestin knew about Buczynski's lie to me that new trials could only be ordered by the Appellate Division; this is shown on page 60 of the above transcript segment (click to see page 60) . 

Kestin knew that Buczynski denied on 31 March my request (motion) for a new trial that I filed on 8 March (click to see my date-stamped motion that was filed with the Ocean County Superior Court clerk on 8 March). 

Yet Kestin not only lied that I filed my motion on 31 March, but he also concealed my request on the last day of trial, denied outright by Buczynski, to repeat the trial that I just won. 

Further explanation of Kestin's statement:

Superior Court-Appellate Division Judge Kestin is a deceiving liar and a corrupt judge. 
 
Kestin's statement continues:
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Based on our review of the record, we are satisfied plaintiff received a fair trial and the remaining arguments in support of his appeal, and defendants' cross-appeal, are without sufficient merit to warrant discussion in a written opinion.

Affirmed on the appeal and cross-appeal. 

 

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Explanation of Kestin's statement:

Kestin makes no mention of Buczynski's corrupt reversible error that resulted in the protection of CMC from being judged by the jury regarding its criminal retaliation of staging a morphine theft that was attributed to me. 

Kestin makes no mention of Buczynski's prejudiced statement on the last day of trial that my termination was justified. 

Kestin makes no mention of Buczynski's lie and subsequent fraud regarding his knowingly worthless invitation to me to request a new trial.

Kestin makes no mention of the remedial intent of the whistleblowing law.

Kestin makes no mention that I requested trial judge Buczynski to allow me to present the ready evidence of my losses to the jury at my trial. Kestin makes no mention of the evidence of Buczynski's bias and that Buczynski denied my request to present the evidence of my losses to the jury.   

Yet Kestin states that he is satisfied that I received a fair trial.

 

The post-trial appeal  in this case was not a trivial matter. The trial transcript required for my appeal cost me $5000, and the filing fees and copying fees accounted for almost another $1000. This case marked the first time a whistle blower won a trial and was denied compensation for ruinous losses in addition to being denied punitive damages after criminal retaliation, yet Kestin states that this appeal is not worthy of a written opinion. 

Kestin did not issue a written opinion for one reason, and that reason is that my arguments for appeal could not be credibly countered. 
 

 
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