ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Appellants’ motion to vacate the Final Judgment was initially filed in the lower court on February 2, 2023, argued before [...] on March 3, 2023, and reserved upon in the April 3, 2023 Order.  *Tyler v. Hennepin County*, 143 S.Ct. 1369 (2023) was decided on May 25, 2023, after the April 3, 2023 Order but before the further “motion practice or a plenary hearing” anticipated in [...]’s April 3, 2023 Order as to the reserved upon issues.  *Tyler* was then specifically raised by Appellants on October 17, 2023 in its next-filed significant pleading as a supplemental basis for vacation of the Final Judgment under Rule 4:50-1 in their Reconsideration Motion.  Thus, at all times relevant to the potential application of *Tyler* to Appellants’ claim to vacate the Final Judgment, Appellants have been continuously and promptly seeking vacation of the Final Judgment under various sections of Rule 4:50-1.  Appellants’ claim for relief from the Final Judgment is thus eligible for retroactive application of Tyler under the definition of “pipeline retroactivity” contained in 257-261 20th Ave. Realty, LLC v. Roberto, 477 N.J. Super 339 (App. Div. 2023).
[brief] May 3, 2024  SUPERIOR COURT OF NEW JERSEY  APPELLATE DIVISION  DOCKET NO. [...]  STATE OF NEW JERSEY, CRIMINAL ACTION  Plaintiff-Respondent, : On Appeal From a Denial of a Petition for Post-Conviction Relief in the Superior Court of New Jersey, Law Division, Camden County.  [...], : Ind. No. [...]  Defendant-Appellant.  : Sat Below: : Hon. [...], P. J.Cr.  DEFENDANT IS CONFINED BRIEF ON BEHALF OF DEFENDANT-APPELLANT  Table of Contents
[brief] [1T 58-19 to 59-8]  (F)  The loss of income and rental ability of the [...] as a multi retail store building and the need to find a single user of the building due to the inability to economically develop the property intended due to the grade differential on the eastern side of the [...];  This was a restatement of the barred claim that the [...] could have been developed as a multi-tenant retail building.  There is also no engineering expert report that the grade differential prevented such a development.
[brief] (1T26-2 to 3).  Instead of comparing the character and nexus of the crimes, the judge focused on the strength of the evidence of the two cases, finding that the April 23 Elizabeth carjacking was strong, (1T26-6), while the evidence in the April 20 --- 1  The State includes in its appendix here and cites to its brief below filed in support of the Omnibus Motion before the trial judge because it included evidence presented to the judge, specifically phone and Instagram pictures that the judge relied on in making his decision.  See Rule 2:6-1(a)(2) (permitting briefs submitted below to be included in appendix where the brief is referred to in the court’s decision).  Given the lack of evidentiary hearing for this motion, the State needs to rely on the brief that the trial judge specifically referenced.  (1T5-2 to 3; 1T12-1 to 13-25).  Jersey City robbery was not as strong.  (1T27-4 to 5).  The judge also found the timing of the motion would prejudice defendant.  (1T27-24 to T28-5).  And the judge found that the same evidence is not required to prosecute each case because “the only connection between that crime and the Armed-Robbery charge is the Audi. ” (1T28-20 to 21).  Next, the judge rendered his decision to admit evidence from the April 20 Jersey City incident as 404(b) evidence in this case.
[brief] Appellee [...] essentially makes four arguments in its Brief opposing [...]’s appeal.  First, [...] argues that the Trial Court correctly ruled as a matter of law that “Appleman’s Rule” only applies to first-party property policies and not to comprehensive general liability (“CGL”) policies, such as those [...] issued to [...] (“[...]”).  [...]’s argument ignores rulings by this Court and by the Supreme Court applying the Rule in liability coverage cases, including cases addressing CGL policies.  It is settled New Jersey law that Appleman’s Rule requires coverage if either the first or the last event in the chain of causation leading to injury is a covered cause.  An insurer can avoid Appleman’s Rule only by including an “anti-concurrent causation” (“ACC”) clause in its policy, which [...] did in the first two CGL policies it issued to [...], which settled the underlying case and assigned its coverage rights to [...].  The mold exclusions in [...]’s first two policies contained “classic” ACC clauses barring coverage “regardless of any other cause, event, material, product and/or building component that contributed concurrently or in any sequence to that injury or damage. ”  (Emphasis added.)  The sole purpose of such a clause is to avoid Appleman’s Rule.  If, as [...] contends, Appleman’s Rule does not apply to CGL coverage, the question becomes: Why did [...] include ACC clauses in its CGL policies?  It removed those clauses from the mold exclusions in the three CGL policies at issue, thus permitting application of Appleman’s Rule.  [...]’s second argument, that Appleman’s Rule applies only to “concurrent” causes of loss in the liability coverage context, finds no support whatsoever in the case law.
[brief] The trial court’s errors commenced with the hearing of multiple motions in limine on July 19, 2023 wherein the lower court determined that Plaintiff could reference the snow removal contracts at trial, which had the effect of improperly expanding the Defendants’ duty of care beyond what the common law required and allowed the contractual obligations to trump the common law duty of care.  At that same in limine hearing, the trial court also erred by barring Defendants from referring to and otherwise failing to take judicial notice of the weather-related State of Emergency for the snow event of March 7, 2018, which lasted through the date of loss, and even a few days thereafter.  The errors continued to accrue and compound at the trial itself, which took place between July 24, 2023 to August 1, 2023.
[brief] Nonetheless, [...] has an obvious motive to exaggerate the nature of his injuries and maximize his alleged pain and suffering – he is suing Defendant for damages.  3T27:18-3T28:4.  It is also irrelevant to the element of provocation whether [...] followed [...]’s instructions on where to put the box.  The dog’s perception of [...] as an intruder is what counts, not [...]’s legal status as an invitee or trespasser.
[brief] The State’s argument as to defense counsel’s decision not to hire an expert to analyze the cellular telephone data is not based on any specific discussions he had with defendant either.  (14T 29-14 to 19).  Although defense counsel recalled the cellular telephone data, he offered no explanation as to why he did not have it analyzed.  (14T 31-11 to 16).  As a matter of fact, he admitted that he was unable to interpret the data on his own.  (14T 30-5 to 14).  That being so, the record is silent as to a credible factual basis to reasonably support a finding that defense counsel’s failure to hire an expert witness to analyze the cellular telephone data was related to a sound trial strategy.  In pertinent part, because “a claimed alibi witness’s credibility must be weighed against the strength of the evidence presented at trial and offered post-conviction,” a credibility determination alone is not “dispositive” of the prejudice prong of the Strickland/Fritz test.
[brief] (144a)  On August 21, 2020, [...] held oral argument on defendants’ Motions to Dismiss and on August 28, 2020, the Court issued its Order and Opinion dismissing plaintiffs’ Complaint, with prejudice.  (148a)  After being dismissed, with prejudice, from the 2020 case, on September 15, 2020, the [...] defendants filed their Motion for Fees and Sanctions pursuant to R. 1:4-8 and N.J.S.A. 2A:15-59.1.  (186a).  On January 25, 2022, the trial court entered an Order granting the [...] defendants’ Motion and ordered that counsel for the [...] defendants submit a fee application within fourteen (14) days of receipt of the Order.  (190a).  On February 8, 2022, the [...] defendants submitted its fee application in the amount of $23,765.50.  (206a).  On June 30, 2022, the trial court properly granted the [...] defendants’ fee application.  (211a).  On June 29, 2022, Plaintiffs filed their instant appeal.
[brief] Middlesex County Indictment No. [...] charged defendant, [...] (“defendant”), [...], and [...] with second-degree Conspiracy to Commit Possession of a Controlled Dangerous Substance, contrary to N.J.S.A. 2C:5-2, (Count 1), two counts of third-degree Possession of a Controlled Dangerous Substance, heroin and cocaine, contrary to N.J.S.A. 2C:35-10(a)1 (Counts 2 and 4), two counts of second-degree Possession with Intent to Distribute heroin and cocaine, contrary to N.J.S.A. 2C:35-5(a)1 and 2C:35-5(b)2, (Counts 3 and 5), second-degree Possession with Intent to Distribute heroin and cocaine within 500 feet of a School, contrary to N.J.S.A. 2C:39-7.1, (Count 6), and third degree Financial Facilitation of Criminal Activity, contrary to N.J.S.A. 2C:21-25(a) and 2C:21-25(b)1, (Count 7).  (Da1 to 3).  ---  1  The record is cited as follows:  Defendant filed a motion to suppress evidence, which was heard on October 27 and December 23, 2015, by Hon. [...], J.S.C. (1T, 2T).  The motion was denied on January 20, 2016.  (Da5-20).  Defendant subsequently filed two motions for reconsideration, both of which were denied by Hon. [...], J.S.C., on August 24, 2016 and June 24, 2019.  On May 12, 2020, defendant plead guilty to Counts 3, 5, and 7 before [...].  (5T4-12 to 16-21).  On October 17, 2022, [...] sentenced defendant in conformity with the negotiated plea agreement which recommended an aggregate, fifteen-year term of incarceration with a seven and one-half year term of parole ineligibility.  (Da23-32)  This sentence contemplated Counts 3 and 5 running concurrently, along with the dismissal of Count 7 on the State’s motion.  (Da29-32).  The sentence was also run concurrent with federal indictment [...].  (Da29-32).  **COUNTER-STATEMENT OF FACTS**
[brief] C.  The Motion Judge Properly Dismissed Appellant’s Fraud Claim.  The trial court correctly dismissed Appellants fraud claim because, as the trial judge aptly noted, Appellant did not bring forth any evidence, let alone clear and convincing evidence, to establish his fraud claims.  To prove common law fraud, a plaintiff must establish: (1) a material misrepresentation by Defendants of a presently existing fact or past fact; (2) knowledge or belief of its falsity; (3) an intent that he rely on the statement; (4) reasonable reliance; and (5) resulting damages.  Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 75 (2006); Jewish Ctr. of Sussex County v. Whale, 86 N.J. 619, 624-25 (1981).  “Fraud is not presumed; it must be proven through clear and convincing evidence. ”  Stoecker v. Echevarria, 408 N.J. Super. 597, 617 (App. Div. 2009) (emphasis added).  In this case, the trial court correctly found that Appellant’s legal and equitable fraud claims cannot survive summary judgment because he failed to bring forth clear and convincing evidence that a material misrepresentation was made and that he reasonably relied on said misrepresentation.
[brief] (Pa1; Pa16; Ca14 ¶27).  Coincidentally, the A.M.S. v. M.L.S. case (Pra1), supra, recognizes reversible error where a trial judge fails to analyze the R. 5:3-5 factors in determining counsel fees:  We are persuaded such an abuse of discretion occurred here.  Indeed, the judge's truncated analysis of defendant's counsel fee application is captured in the following brief excerpt from his December 3, 2019 oral opinion...Because the judge did not analyze the factors set forth in the Rules he cited, we are constrained to vacate that provision of the December 3, 2019 order denying defendant's counsel fee request.
[brief] ”  Bank Leumi USA, v. Kloss, 243 N.J. 218, 227 (2020) (citations omitted).  In its Orders, the Trial Court did not address the application of res judicata to this dispute.  Given [...]’s failure to separately address res judicata and New Jersey jurisprudence on the preclusiveness of the entire controversy doctrine, [...] will similarly focus its arguments on the entire controversy doctrine, while maintaining its objection that res judicata also does not prevent the Hackensack Arbitration from proceeding.
[brief] The leading object of the alleged [...] guarantee was to guarantee personal loans made by [...].  In fact, the guarantee was as to monies already loaned to [...] and that remained unpaid.  The main purpose of the guarantee was to benefit [...] not [...].  Unlike in Schoor, [...] was not receiving any financial benefit in guaranteeing the alleged Third Loan.  It is clear that the unwritten [...] guarantee was a collateral undertaking and not an oral promise for its own pecuniary benefit.  Thus, [...]’s alleged guarantee of the alleged new “Third Loan” is null and void because it failed to comply with the written requirements of the Statute of Frauds, N.J.S.A. 25:1-15.
[brief] The request stated as follows:  I am writing to request that you each revise your final offer to include, where applicable, the existing contract language, followed by your proposal to change the existing language and the rationale for the change.  If the proposal is for a new contract provision, please indicate same.  Please submit your revised final offer by Friday, October 20, 2023 copying each other.  (Aa037).  The arbitrator emailed the parties on October 18, after extending the time to submit revised final offers, which stated as follows:
[brief] (Pa 268.)  The published notice indicated the meeting was originally scheduled for December 7, 2021, and provided access information for the public.  (Id.)  The notice did not include an agenda, despite it being a rescheduled meeting and despite the Borough having published notice on November 18th of the public hearing on Ordinance 1423-21 to be held on December 14th.  The notice also did not indicate if formal action would or would not be taken.  (Id.)  The record is silent as to whether notice of the December 14, 2021, Council special meeting was published in [...] and it does not include a copy of the notice as transmitted by the Borough.  The Planning Board commenced review of Ordinance 1423-21 at its regular meeting held on December 8, 2021, six days before the scheduled second reading of the ordinance before the Council on December 14, 2021.
[brief] ”  Hayes v. Delamotte, 231 N.J. at 386 (first quoting Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. at 521) (second quoting Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).  The standard for a motion for a new trial is found in R. 4:49-1(a) which provides, “The trial judge shall grant the motion if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law.
[brief] Accordingly, [...] filed a Third-Party Complaint for contribution and indemnity on that same date.  (Da114)  Plaintiffs then sought leave to amend their Complaint yet again so as to add those same parties ([...], [...], and [...]) as direct defendants, which was granted on May 26, 2017.  (Da118).  [...] answered [...]’s Third-Party Complaint on June 20, 2017.  (Da120)  On June 23, 2017, consistent with the May 26, 2017 order, plaintiffs submitted a Fifth Amended Complaint adding [...], [...], RN, and [...], D.O. as direct defendants.  (Da128)  [...] moved to dismiss the Complaint due to plaintiffs’ failure to comply with the statute of limitations in that he was joined more than two years after the cause of action accrued.  (Da158)  The trial court rejected plaintiffs’ contentions that the “discovery rule” tolled the statute of limitations, and [...]’s motion was granted by order of September 29, 2017.  (Da203-04).  [...] likewise filed a Motion to Dismiss plaintiffs’ Complaint against him on statute of limitations grounds.
[brief] (Pa85).  On July 8, 2019, the Legislature enacted L. 2019, c. 157 (the “Ricci Act”).  The Ricci Act in relevant part permitted active or retired members of the SPRS to file for a recalculation of Ordinary Disability, Service, or Special Retirement Benefits to Accidental Disability Retirement Benefits provided they participated in the rescue, recovery, or cleanup operations at the World Trade Center Site.  (Pa10).  The Ricci Act also created a presumption that the disability of the member or retiree “occurred during and as a result of the performance of the member’s regular or assigned duties and not the result of the member’s willful negligence unless the contrary can be proved by competent evidence. ”  (Pa10).  1  Because the procedural history and facts are closely related, they are combined for efficiency and the court’s convenience.
[brief] THE PLAIN LANGUAGE AND LEGISLATIVE INTENT OF FACTOR  A(5) IS CLEAR AND THE DEFENDANT IS LEGALLY INELIGIBLE FOR RECOVERY COURT..............................................................................15  ii.  DEFENDANT’S CASE IS DISTINGUISHABLE FROM STATE V. ANCRUM, 499 N.J. SUPER. 526 (APP. DIV. 2017)......................................................................................22  TABLE OF CONTENTS TO STATE’S APPENDIX  Morris County Complaint-Warrant [...] and Affidavit in Support of Request for Issuance of Arrest Warrant issued January 19, 2022……………………………………Sa1-Sa17  Essex County Complaint-Warrant [...] issued August 19, 2021……………………………………Sa18-Sa24  Order Transferring and Consolidating the Essex County Case ([...]) with the Morris County Case ([...]) dated January 25, 2022………………………………………………………………………………Sa25-S26  Morris County Indictment [...] ………………………………………Sa27-Sa30 Investigation Report of [...] of the [...] dated August 6, 2021………………………………………………………………………………Sa31-Sa32 Supplementary Investigation Report of [...] of the [...] dated September 21, 2021………………………………………………Sa33-Sa35 Investigation Report of [...] of the [...] dated September 3, 2021………………………………………………Sa36-Sa37 [...] Results of Examination Notification dated August 9, 2021………………………………………………Sa38 Stop Report of [...] of the [...] dated August 19, 2021………………………………………………………………………………Sa39-Sa41 Investigation Report of [...] of the [...] dated February 15, 2022…………………………………………………………Sa42-Sa44 TABLE OF ORDERS Trial Court Order Transferring and Consolidating the Essex County Case ([...]) with the Morris County Case ([...]) dated January 25, 2022.................................................................Sa25-S26 Trial Court Order Approving Defendant’s Application for Acceptance into the Recovery Court Program, Track One, dated December 11, 2023........................Sa62-S63 ### TABLE OF AUTHORITIES **Cases** - **DiProspero v. Penn**, 183 N.J. 477 (2005) ................................................................. 16 - **In Re Old Colony Coal Co.**, 49 N.J. Super. 117 (App. Div. 1958) .............................. 6 - **Miranda v. Arizona**, 384 U.S. 436 (1966) .................................................................. 2 - **Moon v. Warren Haven Nursing Home**, 182 N.J. 507 (2005) ........................................ 7 - **Romano v. Maglio**, 41 N.J. Super. 561 (App. Div. 1956) ............................................. 7 - **State v. Ancrum**, 449 N.J. Super. 526 (App. Div. 2017) .............................................. 5, 15, 22, 23, 24 - **State v. Harris**, 466 N.J. Super. 502 (App. Div. 2021) .................................................. 10 - **State v. Hyland**, 238 N.J. 135 (2019) ........................................................................... 7, 8, 9, 12, 13, 14, 15 - **State v. J.V.**, 242 N.J. 432 (2020) .................................................................................. 16 - **State v. Meyer**, 192 N.J. 421 (2007) .............................................................................
[brief] Ca13.  On July 27, 2023, the [...] filed their Cross-Motion to Intervene and Deny Receiver Relief.  Ca346.  The trial court held oral argument on October 6, 2023.  See Notes of Testimony from October 6, 2023 Hearing (hereinafter cited as “N.T.”).  That same day, the trial court entered orders granting the motion to discharge, discharging [...] as the receiver (the “Discharge Order”), and denying the [...]’ Motion to Intervene (the “Intervention Order”).
[brief] The trial court also found that the Plaintiffs – who owned the various properties - somehow “were not renovating them, or improving them for their own use. ”  2T15:18-19.  Consequently, His Honor did not perform the analysis of the All the Way Towing factors as directed.  Plaintiff appealed October 19, 2023, asserting that the factual findings were not supported by the trial transcript and that the court did not make the mandated conclusions of law.
[brief] The New Jersey Rules of Court require judges presiding over non-jury trials and rendering final orders appealable as of right to issue findings of fact and conclusions of law supporting their decisions.  R. 1:7-4(a).  These factual findings and legal conclusions may be issued either in writing or on the record.  Id.  Rule 1:7-4(a), which governs this requirement, provides the following:  (a)  Required Findings.  The court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury, on every motion decided by a written order that is appealable as of right, and also as required by R. 3:29.  The court shall thereupon enter or direct the entry of the appropriate judgment.  R. 1:7-4(a).
[brief] However, "'summary judgment is not premature merely because discovery has not been completed, unless the non-moving party can show with some degree of particularity the likelihood that further discovery will supply the missing elements of the cause of action.'"  *Ibid.*, (first quoting *Badiali v. N.J. Mfrs. Ins. Grp.*, 220 N.J. 544, 555 (2015); then quoting *Wellington v. Estate of Wellington*, 359 N.J. Super. 484, 496 (App. Div. 2003)).  [...] identifies exactly two challenges it advanced to the Statement of Material Facts upon which [...] relied in asserting its entitlement to summary judgment, appearing at Pb-45-46.
[brief] (Point Five)  THE TRIAL COURT ERRED AS IT CHERRY PICKED FACTS TO SUPPORT ITS OPINION, SHOWING ITS BIAS AGAINST APPELLANT ((1T19,15-18); Raised below via Reconsideration: Pa226; Pa218; Pa192; 2T; Letter to PG (Pa135))  Appellant incorporates by reference statements made through his points one to four as if fully set forth within.
[brief] In response to a question about whether or not mold-related injuries could be allocated to a particular route of exposure, [...] testified that “whether the Trichothecenes were absorbed through the skin, whether they were absorbed through inhalation, or whether they were adsorbed through ingestion, the results are the same.  There’s no way to determine how the exposure occurred. ”  3T73-3 to12.  [...] did not contradict this testimony.  No scientific resource or report in the record suggests that the source of mold-related injury can be identified as having been caused by any particular route of exposure, whether dermal contact, inhalation, or ingestion.  In his report, [...] correctly confirmed that the evidence he reviewed showed that “mold, mold spores, and mold fragments” were deposited on surfaces in the kitchen and on office desks, beds and tables, in the refrigerator, and on the foods on those surfaces.
[brief] This is what was happening and finally spoke up and broke that code of silence.  And then shortly thereafter within like a month later his mother and brother who are present here in court are then subject as victims to a horrific home invasion and shooting which clearly, I mean thankfully allowed their lives to be not taken, it’s only by the graces of God that they are both here today to be able to sit here in this court and support [...] but are severely injured, his brother especially based on charges that [...], his co-defendant, is currently charged with and is sitting being detained on in this very county.