ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] In explaining her ruling to allow D-4 into evidence, [...] stated that since [...]’s attorney had a copy of the [...] file to work with in the [...] action (since [...] was no longer representing them in that action), therefore someone on [...]’s legal team absolutely had the file.  5T, Pg. 52, lines 9-15.  But that’s simply not fully accurate.  The file may have been provided to [...]’s subsequent counsel in the [...] matter.  That subsequent counsel likely went through the materials and created a file, marking documents, making notes in a manner that was useful to them for litigating the [...] matter.  However, that all started before this action (between [...] and Cohen) started.  Documents used in the [...] action were not preserved by Cohen’s attorney as the “[...]’s file” for this action.  Further, [...]’s own witness testified that D-4, the 21 boxes of material were absolutely not exchanged in discovery in this matter.  It would have been impossible.  And that’s despite [...]’s counsel informing the Court that D-4 had been exchanged in discovery in this matter.  So the 21 boxes that had been sitting in front of the jury for days and then opened to “piles and piles” of documents had never been exchanged in discovery (which was conceded to be impossible by [...]’s own witness).  Yet [...] let the sheer volume of them prejudice the jury and admitted D-4 into evidence.
[brief] (Plaintiff Deposition 18:23-19:12, 827a).  Plaintiff was also monitoring the location of the crowd and in what direction they were moving.  (Ibid.).  [...], the Township Administrator at the time of the incident in July 2016, testified that there was not even an allegation that Plaintiff engaged in any wrongdoing or failure to act in performing his duties as a Police Captain in controlling a disorderly crowd who Defendants admit engaged in violations of criminal statutes:
[brief] Pa225; Pa310-311.  All of the evidence shows that Plaintiff complied with the payment terms under the agreements.  In particular, Defendant possesses no tracking information to confirm that the invoices were actually received by Plaintiff prior to December 4, 2020.  Pa225; Pa263.  Further, Defendant has no proof that Plaintiff actually received the invoices through the U.S. mail.  Pa225; Pa285.  Eventually, after receiving a request by Plaintiff, Defendant sent all invoices to Plaintiff via email on December 4, 2020.  Pa225; Pa263.  Thereafter, Plaintiff remitted final payment to Defendant on January 21, 2021, which was within sixty (60) days of December 4, 2020.  Pa225; Pa285; Pa442.  As it stands, Defendant has been paid in full for what was owed from Plaintiff.
[brief] b.  Even if the Master Deed authorized the Sale of Unit 74, that ‘authorization’ has no bearing on whether the Developer truthfully represented its quality of title, i.e., committed an unlawful practice.  As set forth above, the record shows that Unit 74 is a common element.  Its re-designation from a condominium unit to a common element is significant because the former can be sold like any other parcel of real property.  See N.J.S.A. 46:8B-4.  The same is not true for the common elements.  “The common elements shall remain undivided and shall not be the object of an action for partition or division. ”  Id. at 46:8B-6.  Each condominium unit has an inseparable proportionate undivided interest in the common elements.  Id.  In other words, the unit owners collectively hold a 100% undivided interest in the common elements.  Whether the master deed authorized the sale of Unit 74 has nothing to do with whether the Developer actually possessed clean title to Unit 74 as described by the Affidavit of Title.  As a common element, the Developer does not have the sole right, claim or interest to Unit 74.  There is also a statutory prohibition on dividing the common elements.  The master deed’s purported authorization does nothing to change these facts.  Certainly, the Defendants have failed to present any legal authority suggesting otherwise.  Because the master deed’s ‘authorization’ is immaterial to the issue of whether the Developer’s Affidavit of Title accurately represented no other persons have a legal interest in Unit 74, the trial court erred by using this ‘authorization’ to conclude the Developer did not commit an unlawful practice under the CFA.  Therefore, the dismissal of Count One should be reversed.
[brief] *Bonnco Petrol, Inc. v. Epstein*, 155 N.J. 599, 609 (1989), citing *Jewish Center of Sussex County v. Whale*, 86 N.J. 619, 624–25 (1981) (quoting 3 J. Pomeroy, A Treatise on Equity Jurisprudence 421 (5th ed.1941).  [...] has failed to establish that either mutual mistake or fraudulent conduct on [...] exists here.  As the record below demonstrates, [...] has not acted in bad faith, nor has it engaged in any fraudulent conduct, there was no evidence of mistake by either party, and the Redevelopment Agreement and Operating Agreement should therefore not be reformed as required by the Order.
[brief] This Court reviews motions to amend the complaint to conform to the evidence adduced at trial under R. 4:9-2 for abuse of discretion.  *Franklin Med. Assocs. v. Newark Pub. Sch.*, 362 N.J. Super. 494, 506 (App. Div. 2003).  R. 4:9-2  “Such amendment of the pleadings and pretrial order as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment. ”  R. 4:9-2.  The Rule generally “requires that motions for leave to amend be granted liberally. ”  *Kernan v. One Wash. Park Urban Renewal Assocs.*, 154 N.J. 437, 456 (1998).  “The determination of a motion to amend a pleading is generally left to the sound discretion of the trial court. ”  *Franklin*, 362 N.J. Super. at 506; *Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment*, 440 N.J. Super. 378, 382 (App. Div. 2015).  “The trial court's broad discretion to permit amendment to conform to the evidence is required to be liberally exercised,” but where a “beyond the issues as framed” objection is made, it “must be exercised with due regard to the opportunity of the opposing party to meet the evidence. ”  PRESSLER & VERNIERO, Current N.J. Court Rules, cmt. on R. 4:9-2 (2023) (citations omitted).  “The opposing party will ordinarily be deemed to have been on notice sufficient to meet that evidence if the issue has been injected into the case prior to trial even if in a technically deficient manner. ”  *Id.* (citations omitted).  POINT II:
[brief] (8T 146-16 to 18; 148-14 to 151-9)  Indeed, [...]’s testimony began with his brief assertion that he was not claiming to testify to the range (or “RF coverage” as he called it) of the towers.  (8T 155-14 to 18; 8T 161-10 to 14)  If only he had maintained that position.  But he most definitely did not.  Almost immediately, [...] asserted that his opinion from the cell-phone evidence in the case was that the phones of defendant, the codefendant, and [...] were “in the general area” of the crime scene at the barbershop at the time of the shooting.  (8T 162-2 to 3)  Defense counsel’s objection to that testimony was temporarily sustained.  (8T 163-25)  But then, soon thereafter, the prosecutor tried again to do the same thing, and succeeded.  He asked: “Is there generally a range of coverage that this tower [would] be accepting calls from phones two miles away... three miles away, or is there a general range?”  (8T 165-14 to 19)  Defense counsel’s objection this time was overruled by the judge.  (8T 165-20)  [...] responded: “It depends on how that particular tower is configured,” and, when asked by the prosecutor to “explain that further,” [...] said that while it would be possible to have a two- or three-mile range, because this is “an urban area,” it is far more likely that in an area like this with a “large quantity of cell sites,” the range of the towers would be a shorter distance.  (8T 165-25 to 166-16)  Ultimately, over defense objection, [...] opined that [...]’s phone was “not in the area of the crime scene” at the time of the incident, but that defendant’s, the codefendant’s, and [...]’s phones were “in the general area of the crime scene based upon the location of the cell site. ”  (8T 167-9 to 168-10)  [...] then offered a similar opinion that the codefendant’s phone and [...]’s phone were “in the general area of the [East Orange] traffic stop” based upon the cell-tower data at 9:45 p.m. (8T 168-21 to 169-8)  On cross-examination, [...] conceded that he never tested the range of the towers in question, never went to those towers to make sure he was correct about their location, and never checked whether physical obstructions might change the coverage areas of those towers.  (8T 175-2 to 177-9)  [...] even conceded that “there’s always going to be” some obstructions, that the evidence that he used to determine coverage direction did not determine coverage area, and that the closest cell tower is not always used by a phone in a given situation, but he refused to concede that directional evidence is “incredibly deceiving” as to coverage distance, and never withdrew his opinions regarding the presence of defendant and others near the crime scene.  (8T 177-4 to 178-10; 8T 191-12 to 20)  Burney [II] makes this case an easy decision: this evidence could not have been more inadmissible for a simple reason: because it was not based upon anything but the expert’s guesswork which itself was rooted only in his experience and training.
[directive] In May 1998, the Attorney General issued the original Brimage Guidelines along with Attorney General Executive Direction 1998-1, which made the original Brimage Guidelines binding on all prosecutors.  In the intervening years, twenty- one “Application Notes” were issued by the Division of Criminal Justice in response to questions regarding the interpretation of the original Brimage Guidelines.  On July 15, 2004, the Attorney General signed Attorney General Law Enforcement Directive 2004-2 (reproduced on pp. ix-x), promulgating the present set of Brimage Guidelines, replacing and superseding the original version.  (Hereinafter: “revised Guidelines”)
[brief] Da88.  Defendants similarly continued to avoid identifying the custodian of the Defendant LLC’s records in response to Request No. 23.  Instead, Defendants objected to the request as “broad, unclear and vague” and only claimed that “the closing records, such as the Purchase Agreement, Transfer Deed, 2019 and 2020 Tax Returns as to the LLC and the Property were kept by its attorney [...] ”  Da88.  That is, Defendants refused to identify who the Defendant LLC’s record keeper actually was, but only that [...] happened to be in possession of certain documents.
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[brief] The fatal flaw of Defendants’ arguments is that [...] was not a first-hand observer of (a) the accident, (b) the speeds and directions of the vehicles, or (c) the impacts by and between the vehicles.  [...] responded only after the crash had occurred.  Here, in denying defendant’s motion for a new trial, the Court explained as follows in its Memorandum of Decision:  The diagram, as an exact rendering of what happened is misleading to the jury and its prejudice outweighs its probative value.  The Court heard the objection at sidebar and sustained the objection, ruling that page 4 of the police report was not admissible.  The Court noted that the trooper testified that he has no indicator as to distances, nor the timing of the light, particularly with regard to [...]’s vehicle.  The deposition testimony of [...] leads the Court to believe that [...] is going to testify at trial that he was stopped at a red light and that the light then turned green.  However, the diagram does not depict same.  The diagram shows [...]’s vehicle as a moving vehicle, in motion, and does not show [...] stopped for the light.  The Court further noted the Court’s concern with the diagram showing [...] moving/in motion because same was not based on the trooper’s observation.  The diagram also depicted the two other vehicles coming down the other roadway.  The Court did note that the diagram had two X’s in circles that depicted the point of impact, but the diagram also contained the movement of the vehicles, how far the vehicles were from the intersection, [...] is depicted farther back from the intersection versus stopped at the light/intersection, and the [...] van is depicted a finger length from the intersection and Plaintiff’s vehicle is shown four finger lengths away and the trooper has no basis upon which to have put the vehicles in those locations.  Because the trooper did not make those observations, the probative value of the diagram for the points of impact of the vehicles did not weight the undue prejudice to the other parties with regard to the depictions of the vehicles prior to impact.  Further, there was no prejudice to Defendants [...] and [...] because several photographs of the scene of the accident were entered into evidence, so the jury could see the points of impacts on the vehicles in the photographs, just as the trooper observed when he arrived at the scene.
[brief] No cars or people involved in the incident were present, but two shell casings were found on the ground along with broken glass.  (11T 10-24 to 11-11)  The citywide, police-affiliated surveillance camera system in [...] had recorded the minutes before the shooting as well as the shooting itself (11T 27-7 to 28-5), and a similar surveillance system in the adjoining township of [...] had recorded some relevant activity that took place afterward.  (11T 53-24 to 54-1)  The videotapes revealed that the Corolla had been driving around near the scene a few minutes before the shooting and had done a loop around the block.  (11T 46-14 to 23)  According to [...] of the [...], the videos appeared to depict two men in the Corolla (11T 72-12 to 22): an African-American driver with a beard, midlength hair and a medium complexion, wearing a multicolored blue shirt and blue pants (11T 72-23 to 73-5), and an African-American passenger with a beard and a darker complexion than the driver, wearing a black T-shirt with a white Nike insignia on the left breast.  (11T 73-6 to 18)  At 11:52 a.m., a [...] police officer spotted the white Corolla parked behind the house at [...] in [...] Township.  (11T 113-6 to 10)  Surveillance tapes later revealed that the car had arrived at that address at 11:00 a.m.  (11T 89-21 to 90-10)  The house was only a few minutes’ drive away from the scene of the shooting.  (11T 54-24 to 55-15)  A police perimeter was secured around the house at 11:56 a.m.  (11T 113-11 to 13)  Four men were found on the porch: [...], [...], [...] and [...].
[brief] BASED ON THE FACTS AND CIRCUMSTANCES OF THIS CASE AND REVIEWING THE JURY INSTRUCTION AS A WHOLE, ANY ERROR IN THE INSTRUCTION WAS HARMLESS, THUS NOT CAPABLE OF PRODUCING AN UNJUST RESULT.  "Not every trial error in a criminal case requires a reversal of the conviction.  If it is not of constitutional dimensions, it shall be disregarded by the appellate court 'unless it is of such a nature as to have been clearly capable of producing an unjust result .  . . .'"  State v. McKinney, 223 N.J. 475, 496-497 (2015) (citing State v. LaPorte, 62 N.J. 312, 318-19 (1973) (quoting R. 2:10-2)).
[brief] POINT V THE CHANCERY COURT DID NOT ABUSE ITS DISCRETION IN DENYING DR. ONDIK’S RECONSIDERATION MOTION/SECOND APPLICATION EVEN IF IT WAS NOT MOOT.  (Ra1-178)  [...]’s reconsideration motion/second application for a preliminary injunction fairs no better than his first.  Leaving aside the fact that his briefs in support of that application failed to address the Crowe factors at all, and instead focused solely on [...]’s withdraw of its offer of employment, the Chancery Court properly denied the second application, clearly finding the interests of justice did not warrant reconsideration.  Lawson v. Dewar, 468 N.J. Super. 128, 134 (App. Div. 2021); see also Rule 4:42-2.  The Chancery Court specifically found that [...] failed demonstrate, by clear and convincing evidence, the factors laid out in Crowe v. DeGioia, 90 N.J. 126, 132-34 (1982), which are required to obtain a preliminary injunction.  (3T6-10).  The Crowe factors are, of course,: (1) irreparable harm is likely if the relief is denied; (2) the applicable underlying law is well-settled; (3) the material facts are not substantially disputed and there exists a reasonable probability of ultimate success on the merits; and (4) the balance of the hardship to the parties favors the issuance of the requested relief.
[brief] **  (Opinion at Pa59; Pa62 to Pa63; Pa68).  A bulk/dimensional variance (such as that for a setback violation) is governed by N.J.S.A. 40:55D-70(c); a "(c)" variance requires the applicant to establish the positive and negative criteria.  Subsection (c)(1) refers to hardship, i.e., a condition of the land not created by the owner which renders it nonconforming.  See *Jock v. Zoning Bd. of Adjustment of Wall*, 184 N.J. 562 (2005) (isolated undersized lot).  There is no setback hardship concerning this rectangular, vacant parcel; the Applicant is creating the condition.  *Jacoby v. Zoning Bd. of Adjustment of Borough of Englewood Cliffs*, 442 N.J. Super. 450, 470 (App. Div. 2015) (developer cannot create (c)(1) hardship by voluntarily reducing parking spaces).  At Pa62 n. 6, the trial court acknowledges that the Applicant failed to establish N.J.S.A. 40:55D-70(c)(1) grounds for relief.
[brief] As is discussed above, a cause of action under the Fraud Act does not require proof of reliance and damages thereby distinguishing it from common law fraud claims.  See Liberty Mutual v. Land, 186 N.J. at 175.  Moreover, the Commissioner of the Department of Banking & Insurance is entitled to bring his own action under the Fraud Act and similarly is entitled to intervene in a Fraud Act suit filed by an insurance carrier.  See N.J.S.A. 17:33A-5.  The State has filed such an action here and the court has declared that the Defendants are not entitled to a jury trial on the State’s Complaint.  See Da 5a.  Defendants do not challenge that ruling.  Similarly, the Fraud Act creates a mechanism for the imposition of surcharges against those alleged to have engaged in insurance fraud.
[brief] The Board’s Review of the ALJ’s Initial Decision  The Board’s review of an ALJ’s Interim Decision is governed by N.J.S.A. 52:14B-10(c), which states that, ‘[i]n reviewing the decision of an administrative law judge, the agency head may reject or modify findings of fact, conclusions of law or interpretations of agency policy in the decision, but shall state clearly the reasons for doing so. ”  Id.  It is pursuant to this authority that the Board rejected the ALJ’s decision and related findings in its FAD.  As explained by the Appellate Division, in such a circumstance:  Although we are considering the ALJ’s report as part of the record, we emphasize that the Board is the primary factfinder in this case and that is the Board’s order and decision we are reviewing.  The Board has ultimate authority upon a review of the record submitted by the ALJ to adopt or modify the recommended report and decision of the ALJ, N.J.S.A. 52:14B-10(c), and an appellate court is only entitled to review those findings and recommendations in its review of the record for the purpose of determining whether nor not the Board’s findings are supported by substantial credible evidence.  New Jersey Department of Public Advocate, v N.J. Board of Public Utilities, 189 N.J. Super. 491, 507 (App. Div. 1983).  B.
[brief] Plaintiffs argued before the Trial Court, and continue to assert here, that their use variance application under NJSA 40:55D-70(d)1 should not have been decided under the standards made applicable to (d)1 use variances through the New Jersey Supreme Court’s decision in Medici v. BPR Company, 107 N.J. 1 (1987).  Rather, Plaintiffs argue, their variance application should have been considered under the less stringent standards made applicable to conditional use variances under NJSA 40:55D-70(d)3 in Coventry Square v. Westwood Zoning Board of Adjustment, 138 N.J. 285 (1994), and subsequently also judicially extended to density, floor area ratio and height variances under other subsections of NJSA 40:55D-70(d).  Pb23, Pb28.  Plaintiffs do not cite any precedent for their novel idea that the Coventry standard should be further extended to apply to (d)1 use variances like the one they sought.  Plaintiffs argue that the common theme of the case law concerning the loosening of standards for conditional use, density, floor area ratio and height variances is that they pertain to uses that are permitted, not prohibited in the zone.
[brief] 132 N.J. at 433.  The Court observed that for many years the common law focused on the property rights and determined the scope of the landowner’s duties according to the status of the injured party as a business invitee, a licensee, or a trespasser.  *Id.*  Since *Hopkins*, cases have continued to apply the common-law legal relationships in defining a landowner’s duty of care.  *Jimenez*, 329 N.J. Super. at 401-02; See, e.g., *Moore v. Schering Plough, Inc.*, 328 N.J. Super. 300 (App. Div. 2000) (security guard was invitee owed a duty of reasonable care at the commercial premises he patrolled); *Rigatti v. Reddy*, 318 N.J. Super. 537, 541 (App. Div. 1999) (landowner owed employee of an independent contractor injured on his property a duty owed to an invitee); *Accardi v. Enviro-Pak Sys. Co.*, 317 N.J. Super. 457 (App. Div.), certif. denied, 158 N.J. 685 (1999) (independent contractor deemed to be invitee).