ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] STANDARD OF REVIEW....................................................................................5  POINT I (1T, Pa1-19).........................................................................................8  THE TRIAL COURT ERRED IN GRANTING SUMMARY  JUDGMENT AS TO RESPONDENT  [...] AS THERE WAS SUFFICIENT INFORMATION TO DEMONSTRATE A GENUINE ISSUE OF MATERIAL FACT OF A DANGEROUS CONDITION POINT II (1T, Pa1-19).......................................................................................14  THE FINDING THAT APPELLANT HAS NOT SUFFERED A PERMANENT LOSS OF BODILY FUNCTION THAT IS SUBSTANTIAL WAS ERRONEOUS POINT III (2T, Pa20-34)..................................................................................16  THE TRIAL COURT ERRED IN GRANTING SUMMARY  JUDGMENT AS TO RESPONDENT  [...] AS THERE WERE SUFFICIENT FACTS TO DEMONSTRATE A DUTY OWED BY RESPONDENT  [...] POINT IV (1T, 2T, Pa19-34).........................................................20  THE TRIAL COURT INCORRECTLY DISMISSED THE COMPLAINT AGAINST BOTH RESPONDENTS  [...] AND [...] CONCLUSION..................................................................................22
[brief] A247-248.  [...] said that three years, eleven months from the Mid-Marriage Agreement, three years, ten months from the Matrimonial Settlement Agreement, and two years, seven months from entry of the Final Judgment of Divorce, was not a reasonable time.  A266.  [...] ruled that defendant “has failed to prove by clear and convincing evidence that plaintiff committed fraud upon her under these circumstances” as well.  A247.  With regard to Final Judgment of Divorce that had been entered, [...] said that he must review unfairness in the formation of the underlying contracts, and excessively disproportionate terms (A249, citing a civil case, Sitogum Holdings, Inc. v. Ropes, 352 N.J. Super. 555, 564 (Ch. Div. 2002)).  [...] said there was no “procedural unconscionability” because, - [...] signed the agreements which the Final Judgment of Divorce then effected; - [...] waived her right to counsel in the agreements she signed; - [...] “was not so controlled by plaintiff to completely vitiate her free will to review documents which were presented to her for signature including those surrounding the settlement agreements and other legal documents which she signed” (A251) - [...] “not only signed the MMA and PSA, but the court also finds that she signed an acknowledgment of service for the Summons and Complaint for Divorce which was requesting the incorporation of said documents.
[brief] The FDCPA’S Legislative History and Agency Interpretations are Consistent with the Federal Courts’ Decisions.  (As to Legislative History, Pa49)  Before the motion court, Defendant presented legislative history and agency interpretation of the FDCPA which, it asserted, supported the conclusion that communications with mail vendors are permitted under § 1692c(b).  As explained above under Point III, those extrinsic sources should not be considered when, as is the case here, the ordinary meaning of the statutory language yields a result consistent with the statutory scheme and purpose.  In Point III, we addressed the legislative history to the extent it had been relied on by the motion court.  We have not addressed the legislative history arguments which Defendant presented below.  “Legislative history, after all, almost always has something for everyone!”  Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 609 (2010) (Scalia, J. concurring).  If Respondent’s Brief asserts the arguments it asserted below or any new arguments which seek to construe § 1692c(b) based on extrinsic sources, Plaintiff will respond in his Reply Brief.  It is sufficient at this stage to make two anticipatory observations.  Defendant may argue that the FDCPA expressly allows debt collectors’ use of telegrams and telephone calls which, it argued, implies the use of mail vendors.
[brief] ”  (11T 79-20 to 80-20)  83-4)  After [...] watched the video and identified [...] as the suspect, [...] told [...] he also thought that the suspect was [...].  (2T 74-21 to 75-1)  After [...] identified the suspect as [...], [...], a witness who did not testify, told [...] he also thought the suspect was [...].  (2T 46-11 to 13)  These post-identification statements of agreement are called “feedback” and have the capacity to influence an eyewitness’s identification.
[brief] The trial court failed to illustrate any law upon which it was relying in support of its decision, failed to make any type of detailed examination of the factors articulated by the Supreme Court with respect to an arbitration waiver analysis, and failed to make any findings of fact related to the motion.  Indeed, by its own on-the-record astonishing admission, the trial court judge stated that he did not apply to the facts the legal standards established by the Supreme Court and for that reason and the reasons discussed below the lower court’s decision was a clearly erroneous decision which should be overturned by this Court.
[brief] In justifying reimposing the certain persons sentence of ten years to be served consecutively to the twenty-year sentence for the robbery, the sentencing court “applied Yarbough guideline 3A to its analysis when determining the Defendant’s sentence and found 3A so compelling and heavily weighted as to support consecutive sentencing of the certain persons offense. ”  (Da51)  The court found factor 3A—that “[n]othing in the record suggests that Defendant obtained the handgun in order to carry out a robbery at the [...]”—for three reasons: (1) [...] did not immediately brandish the handgun upon attempting to obtain the cash register drawer from [...] but only pulled the gun out after the security guard had wrestled him to the floor; (2) “he obtained the gun at an unknown time [and so] it cannot be assumed he obtained it in order to rob the [...];” and (3) [...] was charged with robbing an [...] two days later in which he similarly “brandish[ed] his handgun in order to flee the premises” after being restrained.  (Da47-48)  Although the sentencing court’s conclusion does not mention Yarbough factor 3C, in its earlier discussion of the Yarbough factors the court stated that “the facts also support a finding that the case-at-bar meets Yarbough guideline 3C, ‘the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior. ’”  (Da48)  The Court concluded that Yarbough factor 3C applied because “Defendant committed [the certain persons] crime at the time he obtained the handgun, prior to the [...] Robbery. ”  (Da48)  This stands in stark contrast to the court’s finding in 2018 that under factor C, whether “the crimes are committed at different times or separate places,” “[t]hat is not the case here. ” (4T 17-22 to 18-1); [...], [...] (noting that the court ‘did not find factors 3B-E).  (Da38, 41)  The court erred in finding factors 3A and 3C because (1) the court relied on dismissed charges, (2) the court relied on speculation not supported by competent, credible evidence in the record, and (3) the actual record does not support a finding of factors 3A or 3C in light of published case law.
[brief] Certification of [...] in Support of Appellant’s Motion for Reconsideration 135a-139a  Certification of Appellant in Support of Motion for Reconsideration 140a-143a Trial court Order, entered March 17, 2023, denying Appellant’s Motion for Reconsideration 144a-157a  Appellant’s Motion to Vacate Prior Order and Reinstate 158a-161a Trial court Order, entered May 12, 2023, denying Appellant’s Motion to Vacate and Reinstate 162a-167a
[brief] (2T38:4).  Defendant had a poor relationship with his biological father, but after his mother remarried when he was about eight years old, his family environment “improved to some extent. ” (2T38:8-17).  He did poorly in school, had a poor self-image, and attempted to make up for it by acting out.  (2T38:16 to 2T40:13).  “[I]n terms of his developmental history, up to the incident itself: a loser, a follower, a kid who never really was able to . . . assert himself very much in positive and wholesome kinds of ways. ”  (2T41:2-5).  He “found himself \(^3\) [...] is another brother of [...]’s.  (2T27:4-6).  influenced and coerced by others, including the two individuals who were involved in the slaying of the [...], . . . [...] and . . . [...], and . . . that was one of the dynamics that took place as a result of his involvement with those individuals. ” (2T:44:14-20).
[brief] See Also: *Santana v. Bergen County Community College*, et al. [...] (N.J. Super. Ct. App. Div. Mar. 19, 2024).  As in *Chatman*, the evidence in this case reveals a sufficient basis for a triable issue relating to whether the failure to repair the hole was the result of the determination of policy or the carrying out of policy decisions already made, and, respectively, whether such failure was palpably unreasonable or merely unreasonable.  While the Defendants have stated that they were under no obligation to inspect the roadway, the Plaintiffs contention is that the Defendants had constructive notice of the dangerous condition, not a failure to inspect.
[brief] Yet, Judge FAILED to refer to my facts/arguments that clearly refuted entire basis of [...]’s billed legal work for $113,497.  Judge’s ruling was flawed & NOT fair based on substantiated facts that [...] proceeded w/Verified Complaint & formal Trust Accounting, which they were told to postpone since there would be exceptions by me, [...], & [...], instead of finalizing a 3-Way Settlement that we achieved on April 25, 2022, and could have achieved it sooner if [...] and [...] had immediately agreed to the requests by [...] & [...] in November 2021 for a 3-Way Settlement, which required no accounting exceptions.  Judge’s rejections for $20,219.50 of billed work from the requested $113,497 were also very subjective, and was NOT based on any legitimate facts.  Instead, my filed, substantiated, objective recommendation was Judge should NOT approve ANY Trust reimbursement of $113,497 since it was due to litigation work based on their unwarranted non-cooperation & false arguments. against a Settlement.  That work should NEVER have occurred since Ambrose, starting in Nov. 2021, & I, starting in Jan. 2022, repeatedly told Mr. [...] they should focus on a 3-Way Settlement that [...], [...], & I would agree on.  Once again, [...], & NOT the Trust, was responsible for those fees.
[brief] ”  (Pa274-75 at 6:19-7:3.)  [...] further noted that at the time, abortion was legal and safe, and nothing jeopardized that access in a manner to justify passing the legislation “without enabling members of the public to be able to weigh in [which is] public policy at its absolute worse. ”  (Pa275 at 7:4-10.)  [...] likewise noted that the process for rushing through the bill was inappropriate.
[brief] The following day, before deliberations began, the judge reminded the jury of this concept:  [A]s part of the insanity charge, and I’ve explained this to you several times already, but just to confirm, I talked to you about what hearsay is.  And I want to make sure that I tell you this one more time.  And again this is the written charge that you’ll have with you.  I have explained the definition of hearsay for you a few times now, but I will explain it again now.  A hearsay statement is an out of court statement offered for the truth of the statement.  Because such statements are not made in court under oath, are not subject to cross examination by either party, and are unable to be observed by you the jurors to discern the speaker’s demeanor and tone, hearsay evidence is generally precluded.  So I explained that to you and then I said how experts are allowed to use hearsay statements for the purposes of their diagnosis.  And the rest of the charge remains exactly the same.  (16T7-1 to 19).  The final charge also included this caution: “Arguments, statement, openings and summation of counsel are not evidence and must not be treated as evidence. ”  (15T202-18 to 203-14).  Again, it is presumed that jurors follow the trial court’s instructions.  Loftin, 146 N.J. at 295.  These charges insured that the jury understood how it was to evaluate the experts’ conclusions and the State’s summation.
[brief] See Hillsdale PBA Local 207 v. Borough of Hillsdale, 137 N.J. 71, 80 (1994).  N.J.S.A. 34:13A-16(g) lists the nine criteria that an arbitrator must consider in the process of fashioning an economic award, and the statute specifically indicates that of the nine criteria, number six is of special importance to the process, since it goes to the financial impact on the governing unit (i.e., here the municipality), stating:
[brief] 135a  Order Denying Appellant’s Cross-Motion for Partial Summary Judgment in Docket No. [...], filed May 5, 2023 ..................  137a Pretrial Order in Docket No. [...], filed May 9, 2023 ..................  139a  Amended Pretrial Order in Docket No. [...], filed May 16, 2023 ...........................................................................  141a Order Denying Plaintiff’s Motion in Limine in Docket No. [...], filed July 18, 2023 .................................................. 143
[brief] When granting a motion will result in the dismissal of a plaintiff’s case.  . . . the motion is subject to Rule 4:46, the rule that governs summary judgment motions. ”  Cho v. Trinitas Regional Medical Center, 443 N.J. Super. 461, 471 (App. Div. 2015), certif. denied, 224 N.J. 529 (2016).  Rule 4:46-1 in turn states that “All motions for summary judgment shall be returnable no later than 30 days before the scheduled trial date” and on an extended twenty-eight day briefing schedule.  The limitations on motions in limine expressed in R. 4:25-7 and R. 4:25-8, and caselaw such as the Cho opinion, are intended to prevent lawyers from making motions to dispose of an entire case on the eve of trial and without affording the adversary due process protection of the timing requirements of R. 4:46-1.
[brief] SUPERIOR COURT OF NEW JERSEY  APPELLATE DIVISION DOCKET NO. [...]  STATE OF NEW JERSEY, : CRIMINAL ACTION : Plaintiff-Respondent, : On Appeal  From a Judgment of v. : Conviction of the Superior : Court of New Jersey, Law  [...], : Division, Middlesex County also known as : [...] : Defendant-Appellant.  : Sat Below: : Hon. [...], P.J.Cr. : Hon. [...], J.S.C.
[brief] Da362-71; in April 2020, the court reinstated its stay and extended it to July 8, 2020 (4 months); on March 21, 2022, the court entered a stay of [...]’s indemnity claims, which were stayed for all parties until the stay was lifted on June 24, 2024 (27 months) (although the indemnity claim was stayed on March 21, 2022, the remainder of the DJ Action was stayed on May 9, 2022, and this comprehensive stay remained in place until June 24, 2024).
[brief] TABLE OF AUTHORITIES  CASES  First Union Nat. Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 352 (2007)  In re Adoption of N.J.A.C. 7:15-5.24(b), 420 N.J. Super. 552 (App. Div. 2011)  In re Proposed Constr. of Compressor Station (CS327), 258 N.J. 312 (2024)  Lom-Ran Corp. v. DEP, 163 N.J. Super. 376, 384-85, 388 (App. Div. 1978)
[directive] PCNQC  Range: 25 yards Target : FBI Q Type 40 rounds  Range Rds Position  Fire Mode Course of fire Time  From a standing Standing to position, on command 10 sec.  25 yds 10 kneeling, Semi-auto move to a kneeling (2X) cover cover position and fire 5 rounds  On command fire a 4 sec.  Standing  Semi-auto semi-automatic double (3X) tap 15 yds  From a standing 10 position, on command  Standing to Semi-auto assume a kneeling 8 sec. kneeling position and fire 4 rounds  On command fire a 2 sec.  10 yds 10  Standing Semi-auto semi-automatic double (5X) tap  On command fire a 2 sec.  Standing Semi-auto semi-automatic double (3X) tap  On command fire a 7 yds 10 semi-automatic double  Standing Semi-auto tap, transition to the N/A handgun and fire a double tap  32 hits = 80%  9-86  Semi-Annual Firearms Qualification and Requalification Standards
[brief] *State v. K.W.* 214 N.J. 449, 507 (2013).  While the question of whether an individual waives their rights to proceed in court based on the sufficiency of an arbitration agreement are legal questions for the court, factual findings underlying a determination concerning whether there was a valid agreement are questions of fact.  *Cole v. Jersey City Medical Center*  215 N.J. 265 at 275 (2013)  This case was decided on questions of fact and credibility.  One party was right - was truthful - one was not.  The court properly indicated the burden of proof concerning whether there was an authentic agreement on the defense.
[brief] The state did not seek to introduce the anonymous call as an exception to the hearsay rule.  [...] did not say that he spoke with [...] because of “information received” – he became more specific about the anonymous caller, "[...]" and the information she provided.  This is what the Court in Bankston warned against.  at. 268  Clearly, the anonymous call was the sole reason defendant became a suspect.  This is evident because the anonymous call came a week before investigators obtained a statement from [...].  This was a trial by ambush.  See, State v. Roach, 146 N.J. 208, 224-26 (1996) (relying on Bankston and Irving to find that an officer’s testimony - that information from [witnesses] made the defendant a suspect -- was improper even though the officer did not repeat what he learned).  The anonymous caller, "[...]" explained that "they" were told by a friend, who heard from their friend's daughter, that [defendant] admitted to shooting [...].  See. (Da. 25).  According to [...]'s statement, had she testified would have put Sasha and [...]'s credibility into question before the jury.  According to [...], "they" were told by a friend.  That friend revealed to be [...] -- yet [...] states that the friend heard it from her daughter.  This would have showed the jury that defendant never confessed to Sasha as she testified too.  If this is true, that Sahsha heard about the crimes only through her daughter, than her admissions that defendant confessed to her was untrue.  However, the defendant was deprived of getting the jury to make that determination.  There is no possible claim here that defendant's right to confrontation was respected.  For the fatal flaw here, defendant is entitled to a new trial because this error clearly had the capacity to produce an unjust result.  As stated in *State v. Slaughter*, 219 N.J. 104, 116 (2014), where a trial court commits a constitutional error, that error is to be considered a fatal error mandating a new trial unless we (the Appellate Court) are able to declare a belief that it was harmless beyond a reasonable doubt.  Such is not the case here.  Lastly, the state compounded the prejudice by there mention of the anonymous caller in summations.  The prosecutor said,  There was never, never ever one single person who testified there was more than one anonymous caller.  There was one anonymous caller.  There was a call into 9-1-1.  The anonymous caller was [...]’s friend.  Sasha had heard the confession from the defendant on the 18th of September.  She told her friend that.  Later that night the friend called anonymously into the police.  Detective Luyber told you that they tracked back, through the anonymous caller, and got to [...].  Now, this isn’t a traffic ticket.  This is a murder case.  [...] didn’t want to come forward.  She didn’t give her name.  She had somebody else call the police.  Why do you think that happened?  (13T:151-5 to 18)  The state bolstered the account of a face-less accusers.  Clearly [...]' right of confrontation was violated mandating a new trial.
[brief] While the misconduct alleged against [...] on behalf of the *Gannon* class is in many ways analogous to the misconduct alleged in *Roma Pizzeria*, the “relating to” language in the 2015 Settlement does not extinguish the claims by *Gannon* class members for misconduct arising long after Feb. 20, 2015 simply because the *Gannon* complaint suggests that Defendants have again engaged in fraudulent practices.  Cf. *Dando v. Bimbo Food Bakeries Distribution, LLC*, 2015 U.S. Dist. LEXIS 132038, at *7 (D.N.J. Sep. 29, 2015) (“The key inquiry is whether the factual predicate for future claims is identical to the factual predicate underlying the settlement agreement. ”) (italics added).  Defendant’s reliance on the general (and vague) “relating to” formula in ¶1.29 of the Settlement Agreement to negate the more specific language of ¶¶ 2.1 and 5.9, which clearly limit the release to claims in existence when final judgment was entered, effectively re-wrote the Settlement Agreement to give Defendants a perpetual license to abuse their customers.  The more specific language should prevail over the general, non-specific wording in ¶1.29.
[brief] **There is No Basis to Reverse the Commissioner’s Decision.**  [...] tries to backpedal from its own actuarial certification, which memorialized its opinion that the requested rate increase was not excessive.  [...] calls this statement by a licensed professional, i.e., an actuary, a “passing statement of opinion” which should mean nothing in the mix of the analysis.  (Ab38-39).  The actuary’s certification is required by the rules, and the standard for reviewing rates is set by the Legislature in the LTCI Act, which allows the Commissioner to disapprove rates that are excessive.  [...] cannot ignore the Legislature’s intent for the Commissioner to weigh all information supporting the rate filing.  [...] turns its back on the substantial changes it made to its actuarial assumptions for the fourth consecutive time.  It expects the Department and the Commissioner to blindly accept its assumptions, which were a major factor in calculating the rate requests.  The Department took a balanced approach and wanted to see more actual experience develop (i.e., credibility under ASOP 25) before hitting policyholders with a triple digit rate increase in one year.  For 2020, as the ALJ and the Commissioner found, disapproval of [...]’s did not preclude rate increase requests in the future.  [...] can point fingers at the Department all it wants, but its rhetoric cannot dilute the core of the LTCI Act.
[brief] Having begun this process, Superior Courts throughout New Jersey have done so with near-consensus – nearly all rejecting Appellant’s letter vendor theory of liability.  *See e.g., Miller v. Americollect, Inc.*, 2022 WL 20470401; *Mhrez Decision; Mhrez Transcript; Rubin v. Transworld Systems, Inc.*, Case No. [...]; *Elshabba v. Jefferson Capital Systems, LLC*, Case No. [...] --- 4  While numerous courts throughout New Jersey have found comparable letter vendor allegations to be untenable to state a claim as a matter of FDCPA and related law, Respondent’s counsel is aware of only a single New Jersey court which has upheld a letter vendor theory of liability.