ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] B.  The Court Erred By Placing the Burden on Petitioner To Prove Undue Influence by Clear and Convincing Evidence.  (12T191:15-23; 12T183:14-19)  At the close of the evidence, before closing arguments were made, the Court granted Respondent’s motion for a directed verdict and dismissed Petitioner’s claims of undue influence in Count Three of his Amendment to Complaint.  (12T 177:11 to 178:11).  When dismissing Petitioner’s claim, the Court failed to apply the appropriate legal standard of proof and rather, found that Petitioner had a heavy burden of proving the presence of undue influence by clear and convincing evidence:  Petitioner “tried to do that by circumstantial evidence that [Respondent] was influencing her mother; as an only child, that just goes without saying.  But I see no reason that the will is any undue influence by clear and convincing evidence, by any evidence whatsoever, that the will was not a valid instrument. ”  12T178:5-11; 12T177:15-17.  * * *  I’ve granted the directed verdict as to the Will…By clear and convincing evidence, I cannot find that [Respondent] in any way, had undue influence on [Decedent] in 2014, or ever, other than she’s an only child, which I guess has its effect. ”  12T191:15-23.  The heavy burden that was placed on Petitioner, to prove undue influence, is erroneous as a matter of law.  To support an undue influence claim, the challenger of the will is to prove the existence of a confidential relationship by the preponderance of evidence, that is, the existence of a confidential relationship is more probable than not.  Estate of Ostlund v. Ostlund, 391 N.J. Super 390, 403 (App. Div. 2007).  Once a confidential relationship is demonstrated, suspicious circumstances need only be “slight” to shift the burden to the proponent of the will.  In re Will of Blake, 21 N.J. 50, 55 (1956).  Here, holding Petitioner to a clear and convincing standard of proving undue influence was erroneous as a matter of law and resulted in the dismissal of his undue influence count, warranting that the directed verdict be reversed.
[brief] None of Plaintiffs’ members have executed any such knowing and intentional waiver.  Under no reasonable interpretation of the MSRA is the State permitted to eliminate earned wages that were fully vested prior to the State acquiring the authority to modify those terms on June 7, 2017.  The New Jersey Supreme Court recently discussed accumulated sick leave as a vested right in Barila v. Bd. of Educ. of Cliffside Park, 241 N.J. 595, 601 (2020).  In that case, the Supreme Court found that a modification to terminal leave was effective because those benefits do not vest until a triggering event, such as retirement or separation from employment.  Id. at 601.  In this matter, the event triggering the payment of accumulated sick leave was the July 1, 2016 promotion, because the contractual right to wage increases was "a present fixed interest which [...] should be protected against arbitrary state action."  Phillips v. Curiale, 128 N.J. 608, 620 (1992) (quoting Pa. Greyhound Lines, Inc. v. Rosenthal, 14 N.J. 372, 384 (1954)).  Under no reasonable interpretation of the MSRA is the State permitted to eliminate earned wages that were fully vested prior to the State acquiring the authority to modify those terms on June 7, 2017.  The Trial Court’s March 4, 2024 Order must, therefore, be reversed.
[brief] (Pa294, [...] Affidavit; Pa409, Video Recording of [...] using N Word in Class)  [...] admitted when asked about the impact of the use of the N word in deposition on May 11, 2022, that, the use of the N word caused an emotional reaction to this word, could alter the work environment for a Black person and could create a hostile work environment.  (Pa330, Redler Deposition 5/11/2022, T43:14-22, T44:5-14)  Appellant testified that she along with [...] reported the use of the N word in a letter sent to [...] with the video of [...] using the racial slur (Pa294, [...] Affidavit; Pa409, Video to McKoy).  When [...] received the Letter and Video, she failed to address the issue and instead sent the letter and accompanying video to Mr. Redler on May 7, 2019.  On May 9, 2019, Mr. Redler notified McKoy to issue Letters of Non-Renewal of the contract to Appellant and [...] for the next school year.  In the section of the document where the reasons for non-renewal needed to be documented, there was no basis provided for the non-renewal of Appellant’s contract.  (Pa387, List of Employees for Contract Non-Renewal; Pa385, Letter of Non-Renewal to [...]).
[brief] Plaintiffs’ Complaint was filed in the Superior Court of New Jersey, Law Division, Mercer County Vicinage on December 27, 2022.  (Pa1-11).  An Amended Complaint correcting a typographical error was filed on January 12, 2023.  (Pa12-20).  The Complaint and Amended Complaint included Wrongful Death and Survivorship claims asserted against defendant, [...], as well as Declaratory Judgment counts against defendant [...] for liability and/or UM/UIM coverage under an excess/umbrella policy issued by [...] to plaintiffs.  (Pa12-20).  On February 9, 2023, defendant [...] filed a motion to dismiss in lieu of an Answer.  On March 15, 2023, plaintiffs filed an opposition to defendant [...]’s motion to dismiss.  On March 27, 2023, defendant [...] filed a reply to plaintiff’s opposition.  Oral argument was held before the Honorable [...], P.J.Cv. on March 31, 2023 (1T).  [...] rendered his oral decision dismissing defendant [...] on May 3, 2023.
[brief] TABLE OF APPENDIX  Transcript of Voicemail (S-1 below).........................................................Pa1-4  Transcript of Voicemail (S-2 below).........................................................Pa5-7  Transcript of Phone Call (S-3 below).......................................................Pa8-11  Excerpt of N.J.S.A. 2C:12-3(a)  Legislative History.................................Pa12-19 #  TABLE OF AUTHORITIES
[brief] Nonetheless, Plaintiff inexplicably became agitated, began crying and sat down on the ground.  Edison Supp. Appendix 001 ([...] at 3:40; [...] at 2:45).  One of the officers helped Plaintiff get up.  Pa451, T60:16-19.  According to Plaintiff, he then “fell over” into one of the officers.  However, Plaintiff could not offer any explanation of what made him fall.  Pa451-Pa452 (T61:17-T62:8).  The BWC imaging clearly shows that Plaintiff attempted to run through the officers.  Edison Supp. Appendix 001 ([...] at 4:02; [...] at 3:10).
[brief] And the Plaintiff can’t circumvent the lack of a private cause of action by seeking relief under the New Jersey Uniform Declaratory Judgment Law . . .”).  See Browne, 2021 U.S. Dist. LEXIS 244537 (holding plaintiff’s claims for a declaratory judgment, violations of the CFA, and unjust enrichment based on the premise that the defendant lacked a consumer lending license failed because the NJCFLA did not provide the plaintiff with a private right of action); see also Matter of State Comm'n of Investigation, 108 N.J. 35, 46 (1987) (affirming lower court’s refusal to render declaratory judgment where the plaintiffs _____________________ 12 (Da58-Da63). did not have private cause of action for injunctive relief under statute); *Ass'n of N.J. Chiropractors*, 2013 N.J. Super. Unpub. LEXIS 2677, at *14*¹³, (same).¹⁴  Following this case precedent, the Lower Court correctly held:  And the Plaintiff can’t circumvent the lack of a private cause of action by seeking relief under the New Jersey Uniform Declaratory Judgment Law and that’s in *In Re: Resolution of State Commissioner of Investigation*, 108 N.J. 35 at 46, 1987 case.  Also *[...]* – well, that’s a Federal case, so I’ll leave that out.  (T54-19-25).  In his Brief, Appellant ignores the clear case precedent set forth by this Court in *Woo-Padva* 2 and, instead, asks the Court to interpret the legislative intent behind the NJCFLA that there is an implied private cause of action.  But, this Court previously rejected this identical argument in its holding in *Woo-Padva* 2, 2023 N.J. --- ¹³ (Da1-Da9).
[brief] It is immaterial that police would not have learned about his driving during his license suspension had they not pulled him over.  Although evidence may generally be suppressed when it can be said to be the fruits of an unconstitutional seizure, the rule is not a strict “but[-]for” test.  Shaw, 213 N.J. at 413–14.  In Shaw, the Court emphasized the issue is not whether “but for” the allegedly improper police conduct, the incriminating evidence would have not have been seized.  Id. at 413.  The Court fully recognized that had police not stopped Shaw, they would not have learned he was wanted on a parole warrant, he would not have been arrested, he would not have been searched incident to his arrest, and the drugs for which he was charged would not have been found.  But such “but[-]for” reasoning did not resolve whether the evidence would be suppressed.  Ibid.  Rather, the Court identified the issue as whether the drugs found on Shaw was a product of the exploitation of the primary illegality—the wrongful detention—or of means sufficiently distinguishable to be purged of the primary taint—the parole warrant.  Ibid.  The issue can be similarly stated here: Was the fact that police learned defendant was driving while suspended the direct product of the alleged primary illegality—the alleged wrongful car stop for suspected drug activity—or was police incidentally learning defendant was a suspended driver sufficiently distinguishable to purge or dissipate any taint from the initial car stop for drug activity?  The State recognizes that, as in Shaw, the challenged stop here led to the discovery of defendant’s license suspension and can fairly be said to be the “but for” cause of police learning defendant was driving while suspended.
[brief] POINT VI  THE SUPERIOR COURT HAD SUBJECT MATTER JURISDICTION OVER THE SUBJECT FORECLOSURE  COMPLAINT  Point VIII of Defendant’s brief claims that the trial court failed to acknowledge that it lacked subject matter jurisdiction by proceeding with the foreclosure Complaint.  The brief then proceeds to list a number of alleged infirmities which Defendant believes divests the court of subject matter jurisdiction which is erroneous.  Those supposed jurisdictional defects include a lack of authentication of mortgage assignments, statute of limitations, no injury in fact and violation of NJ UCC laws, however, this is a misstatement of law.  In fact, in a mortgage foreclosure matter which is a quasi in rem action, it must be instituted in the state where the land is situated, in the Chancery Division of the Superior Court of New Jersey and in the county where the mortgaged land is situated.  Thus, the Chancery Division will have in rem jurisdiction of the property within New Jersey and subject to the court’s control.  Mortgage Electronic Registration Systems, Inc. v. Powell, 2007 WL 3376639 (N.J. Superior Ct., App. Div. November 15, 2007).  Here, the foreclosure Complaint was instituted in [...] where the mortgaged property is located which is sufficient to establish subject matter jurisdiction and Defendant’s argument to the contrary is without merit.  As such, this court should affirm the trial court’s decision and deny the relief sought in the Order to Show Cause.
[brief] The consecutive sentences on those counts did not increase [...]'s aggregate prison term.  The robbery and kidnapping charges resulted from separate acts of violence perpetrated against separate victims, [...] and [...].  Generally, consecutive sentences are appropriate when multiple victims are involved.  See State v. Carey, 168 N.J. 413, 428 (2001); State v. Yarbough, 100 N.J. 627, 644 (1985) ("some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not ... any of the crimes involved multiple victims"), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L. Ed.2d 308 (1986).  The court did not misapply its sentencing discretion by imposing consecutive sentences.
[brief] [...], : Sat Below: Defendants-Respondents.  : HON. [...], : J.S.C. BRIEF FOR DEFENDANT-RESPONDENT  [...]  On the Brief: [...], Esq. Attorney ID# 026151994  [...], Esq.  Attorney ID# 067102013  [...]  Attorneys for Defendant-Respondent  American Coradius International  Three Cross Creek Drive Flemington, New Jersey  08822 [...]  [...] [...]  Date Submitted: October 28, 2024
[brief] (80a, 47:13-18). ¹  Under the terms of the deal, [...] would sell her home to [...] for $42,394 (239a) (80a, 47:23-48:1).  Net proceeds from the sale to [...] for the home was $0.00.  (80a, 48:6-17).  She would pay [...] a monthly fee of $883 (228a) plus utilities and repairs (235a).  She would then have the right to repurchase the home within 18 months for $105,871 (231a).  If she could not repurchase the home, it would remain plaintiff’s property.  ¹  [...] testified at deposition that he also had [...] sign a listing agreement with his realtor, but plaintiff has never produced the listing agreement in discovery.  (73a, 20:8-20).  According to the contract, plaintiff could then remove [...] and her children from the property without eviction or foreclosure process (229a) and she would lose all of the equity in her home.  [...] signed the documents (233a and 251a).
[brief] By contrast, no statute or regulation provides for prevailing wage for solid waste haulers.  Moreover, despite [...]’s contention, the trial court in Suburban Disposal (Aberdeen) pointed that fact out and appears to have been credited by the appellate panel.  2014 WL 2131662, at *2-3 (Da456).  Second, the relevant bidder in Suburban Disposal (Aberdeen) provided a registration document that was out of date but at least referenced its qualification at some point in time.  Id. at *2 (Da455).  Here, [...] provided no documentation showing that it was NJDOT classified, let alone sufficiently classified.  Third, public works contractor registration is an all or nothing proposition.
[brief] To this end, regulations are considered per se takings when they “result[] in a physical appropriation of property. ”  Id. at 149.  Simply stated, if [...]’s requirement for providing access at [...]’s property is determined to be lawful (i.e., determined to be meaningful and reasonable under the circumstances), then it is not a taking.  If, however, the Court cannot discern from the facts before it whether [...] has engaged in an as-applied taking of [...]’s property, then a remand of this matter for a plenary hearing is necessary to supplement the record below.  The administrative agency responsible for enforcing a regulation must be the first to hear an as-applied constitutional challenge to the implicated regulatory scheme because evidence must be proffered to support the challenge.  See Englewood Hosp., supra, at 642; see also Fred Depkin & Son, Inc. v. Dir., New Jersey Div. of Tax’n, 114 N.J. Super. 279, 284-86 (App. Div. 1971).  On the other hand, this principle does not apply to facial constitutional challenges, which are purely questions of law.  See Fred Depkin, supra, at 284-86; see also Matter of Comm'r of Ins.’s Issuance of Ords. A-92-189 & A-92-212, 274 N.J. Super. 385, 404 (App. Div. 1993).  Here, [...] is not challenging the constitutionality of the Public Access Law, but rather [...]’s implementation of the Law under the circumstances presented.  As such, [...] is legally justified in raising its as-applied takings claim before [...] and the [...] in the proceedings below, and the takings claim remains ripe for review by this Court.
[brief] According to [...], he was careful to confirm with [...] he wanted the debt forgiven and the mortgage cancelled because the effect would be that [...]'s wife would not receive any portion of the funds owed once [...] passed away.  In response to [...]'s inquiries, [...] repeatedly stated he wanted the debt and lien cancelled so there would be no more debt.  According to [...], [...] understood that [...] and [...] would "have the property free and clear of the debt."  [...]'s notes from his meeting with [...] made reference to [...] wanting to "forgive this debt."  [Pa000071.]  [...] never wavered from his clear understanding of what [...] intended.  Nevertheless, [...] maintained that his father only wanted the debt cancelled as to him alone, leading to a three-day trial.  (Pa000073.)  The trial judge concluded that the Will was ambiguous with respect to what [...] intended and applied the “doctrine of probable intent” to conclude that [...] intended to discharge the mortgage entirely, just as [...] had understood.
[brief] ”).  Here, on the record at the PCR hearing, the PCR court denied defendant’s claim that trial counsel was ineffective for failing to call [...] as a defense witness at trial.  (21T15-3 to 17-20).  It found that under Rule 3:22-10(c), any factual assertion that provides the predicate for a claim of relief must be made by an affidavit or certification pursuant to Rule 1:4-4, and based upon personal knowledge of the declarant before the court may grant an evidentiary hearing.
[brief] ....4  I.  INDICTMENT AND PRETRIAL MOTIONS .........................................................4  A.  Destruction of Hundreds of Hours of Potentially Exculpatory Video ..................................................4  B.  Eyewitness Identification ..............................................................................................8  II.  TRIAL (February 27 - March 14, 2014)  ........................................................................9  III.  POST-TRIAL MOTION PRACTICE, APPEAL, & RESENTENCING .....................................................19  IV.  POST-CONVICTION PROCEEDINGS ........................................................................19  LEGAL ARGUMENT ............................................................................................................21
[brief] On or about March 12, 2007, Plaintiff filed a Complaint alleging he had been misdiagnosed with a psychiatric illness and therefore improperly admitted to Defendant [...]’s facility. \(^1\)  On January 7, 2010, the trial court entered a dismissal order granting [...]’s summary judgment motion.  [AB74a - AB75a].  On June 23, 2011, this Appellate Court affirmed the January 7, 2010 trial court dismissal order granting summary judgment to [...].  [Da1 - Da6].  On March 9, 2012, the Bergen County assignment judge entered an injunctive order directing that “all lawsuits filed by [...] shall be reviewed by the Assignment Judge as soon as practicable after having been filed but before service is effectuated, with this court to then have the opportunity to determine, \(^1\)  Plaintiff’s March 12, 2007 Complaint has been archived and is unavailable to download from the New Jersey e-courts website.  Plaintiff did not include a copy of his March 12, 2007 Complaint in his appendix.  Please see this Appellate Court’s September 27, 2023 written opinion at [Da32] for the description of the Complaint referenced in this brief.
[brief] State v. Sutton, 132 N.J. 471, 485 (1993).  As [...] properly found after analyzing the Yarbough factors, consecutive sentences were appropriate here.  While the events may have taken place when it amended N.J.S.A. 2C:44-5(a) to make clear that "[t]here shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses."
[brief] CONCLUSION ..............................................................................................................................................75  | Cases: | Page(s) | |----------------------------------------------------------------------|---------| | Acuity v. Reed & Assocs. of TN, LLC, | 42, 43 | | 124 F. Supp. 3d 787 (W.D. Tenn. 2015) | | | Air Master & Cooling, Inc. v. Selective Ins. Co. of America, | 59, 64, 65 | | 452 N.J. Super. 35 (App. Div. 2017) | | | Air Prods. & Chems. v. Hartford Accident & Indem. Co., | 49 | | 25 F.3d 177 (3d Cir. 1994) | | | Aragona v. St. Paul Fire & Marine Ins. Co., | 32 | | 378 A.2d 1346 (Md. 1977) | | | Auto Lenders Acceptance Corp. v. Gentilli Ford, Inc., | 39 | | 181 N.J. 245 (2004) | | | Bao v. Liberty Mut. Ins. Co., | 32 | | 535 F. Supp. 2d 532 (D. Md. 2008) | | | Battista v. W. World Ins. Co., Inc., | 68 | | 227 N.J. Super. 135 (Law Div. 1988) | | | Benjamin Moore & Co. v. Aetna Cas. & Sur. Co., | 59 | | 179 N.J. 87 (2004) | | | Bob Meyer Cmtys. v. Ohio Cas. Ins. Co., | 73 | | 2020 N.J. Super. Unpub. LEXIS 1873 | | | (App. Div. Sept. 14, 2020) | | | Carter-Wallace, Inc. v. Admiral Ins. Co., | 74 | | 154 N.J. 312 (1998) | | | City of Carlsbad v. Ins. Co. of State of Pennsylvania, | 32 | | 180 Cal. App. 4th 176 (Cal. App. Ct. 2009) | | | Crespo v. Crespo, | 29 | | 395 N.J. Super. 190 (App. Div. 2007) | | | D.M. v. Terhune, | 69 | | 67 F. Supp. 2d 401 (D.N.J. 1999) | | | Do-Wop Corp. v. City of Rahway, | 68 | | 168 N.J. 191 (2001)
[directive] L.1960, c. 169, eff. Jan. 1, 1962.  s. 1, :5-23.  Costs, taxation payment bond 40A and  The judge, if he deems it advisable, may require the applicants to furnish a bond to be filed with the county clerk for the payment of the costs and expenditures of the investigation.  The costs, including witness fees and mileage, shall, by his order, be taxed to and paid by the local unit whose expenditures have been investigated.  , L.1960, 169, eft Jan. 1 1962.
[brief] Third, Plaintiff Must Prove the Action to Protect Against the Condition or Failure to Take Such Action Was Palpably Unreasonable.  In addition to proving the above elements under the Act, a plaintiff has a final element to prove – the most onerous one – that the public entity’s conduct in failing to correct the alleged dangerous condition was “palpably unreasonable. ”  N.J.S.A. 59:4-2 states on this point:  “Nothing in this section shall be construed to impose liability upon a public entity for a dangerous condition of its public property if the action the entity took to protect against the condition or the failure to take such action was not palpably unreasonable” (emphasis supplied).
[brief] *Id.*, at Pa3-Pa8; *see infra*.  The FDCPA should be read to further the principles of the statute’s stated purpose to curb the “abusive” debt collection practices harming consumers.  *See e.g.*, *Hoover v. Monarch Recovery Mgt., Inc.*, 888 F. Supp. 2d 589, 596 (E.D. Pa. 2012) (ruling that violations of § 1692d, including the “publication of a list of consumers who allegedly refuse to pay debts,” are limited to “tactics intended to embarrass, upset, or frighten a debtor. ”).  This is particularly true here given the innocuous nature of the debt collection letters in question and Respondent’s use of a letter vendor.  This Court should therefore uphold the decision of numerous state and federal courts finding that Appellant’s letter vendor theory has little to do with the purposes of the statute and is itself an abuse of the FDCPA legislation.  *See e.g.*, *In re FDCPA Mailing Vendor Cases*, 551 F. Supp. 3d 57, 59-61 (E.D.N.Y. 2021) (explaining how the letter vendor theory and other recent FDCPA claims are attempts to apply the FDCPA in ways Congress never imagined or intended, and themselves are an abuse of the law.).  b)
[brief] Related, and perhaps more fundamental, Defendant does not explain how holding oral argument over his waiver thereof would have altered the outcome of the motion for summary judgment; otherwise stated, Defendant has failed to demonstrate any prejudice by the Court’s failure to conduct oral argument.  See e.g. Finderne Heights Condominium Ass’n v. Rabinowitz, 390 N.J. Super. 154, 165-166 (App. Div. 2007) (“[A]lthough we see a lack of justification for the trial court’s failure to have oral argument, given the record in this matter, we find no prejudice under the circumstances. ”)(citation omitted); See also e.g. Triffin v. Am. Intern. Group, Inc., 372 N.J. Super. 517, 524 (App. Div. 2004) (held that because “the motion nevertheless arrived at the proper result under the factual circumstances presented”, the trial court’s “refusal to entertain oral argument is insufficient to warrant our intervention. ”).