ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] (Da71 to 73).  On December 1, 2023, the trial court heard oral argument on and denied Defendants’ motion for reconsideration.  The transcript of oral argument is found at 7T.  On December 1, 2023, the trial court entered an order denying Defendants’ motion for reconsideration.  (Da74 to 75).  On December 6, 2023, a Substitution of Attorney for Defendants was filed substituting current counsel for Defendants’ trial counsel.  (Da76).  On January 4, 2024, Defendants’ Notice of Appeal was filed.  (Da77 to 78).  On February 5, 2024, a Warrant to Satisfy the Judgment entered against Defendant [...] was filed based upon the inadvertent inclusion of that Defendant as a party against whom judgment was entered on November 9, 2023.  (Da79).  STATEMENT OF FACTS
[brief] Page  TABLE OF JUDGMENTS, ORDERS AND RULINGS BEING APPEALED ........................................................................................................ iii  TABLE OF AUTHORITIES .................................................................................. iv  PRELIMINARY STATEMENT ..............................................................................  1  PROCEDURAL HISTORY ....................................................................................  4  STATEMENT OF FACTS ...................................................................................  4 ARGUMENT ........................................................................................................  4  Introduction .......................................................................................................  4  SECTION A – THE APPEAL .............................................................................  4  POINT I THE LEASE AGREEMENTS PLACED THE TENANT DEFENDANTS UNDER A DUTY TO CLEAR SNOW AND ICE FROM THE LOCATION WHERE [...] WAS INJURED [Raised at Pa594-1040; Decided at Pa1-2] ................................................. 4 A. The Opposition Brief of the Deli ................................................................. 8 B. The Opposition Brief of the Restaurant .................................................... 8 C. The Opposition Brief of [...] ............................................... 12 D. The Opposition Brief of The Nail Salon .................................................... 13 E. Summary of the Law .................................................................................. 14 POINT II THE LAW DIVISION ERRED BY HOLDING THERE WAS NO COMMON LAW DUTY TO MAINTAIN [Raised At Pa549-1040; Decided at Pa1-2] .................................................................................. 16 POINT III THE LAW DIVISION SHOULD HAVE GRANTED PARTIAL SUMMARY JUDGMENT TO PLAINTIFFS [Raised at Pa548-1040; Decided at Pa1-2] .................................................................................. 17 SECTION B – THE CROSS APPEAL .................................................. 20 POINT I FICTIONARY PARTY PLEADING AND RELATION BACK ALLOWS FOR PLAINTIFFS’ CLAIMS ........................................... 20 A. Respondents Do Not Address The Lower Court’s Determination Of the Equities Under The Applicable Abuse of Discretion Standard .................................................. 21
[brief] ### TABLE OF AUTHORITIES | Case | Page(s) | |----------------------------------------------------------------------|---------| | **Cases** | | | Adelman v. BSI Financial Servs., Inc., | 31 | | 453 N.J. Super. 31 (App. Div. 2018) | | | Bank Leumi USA v. Kloss, | 15, 33 | | 243 N. J. 218 (2020) | | | Betts v. Massachusetts Bonding and Ins. Co., | 22 | | 90 N.J.L. 632 (E. & A. 1919) | | | Board of Home Missions of Presbyterian Church in U. S. of America v. Saltmer, | 23 | | 24 Backes 33 (Ch.Ct. 1939) | | | Bondi v. Citigroup, Inc., | 26 | | 423 N.J. Super 377 (App. Div. 2011) | | | Bonefish Capital, LLC v. Autoshred, LLC, | 17 | | 2024 WL 446264 (Feb. 6, 2024) | | | Borough of Wildwood Crest v. Smith, | 18, 19, 20 passim | | 210 N.
[brief] “[A] suspect need not be articulate, clear, or explicit in requesting counsel; any indication of a desire for counsel, however ambiguous, will trigger entitlement to counsel. ”  Id. at 630 (quoting State v. Reed, 133 N.J. 237, 253 (1993)).  “[A]n equivocal request for an attorney is to be interpreted in a light most favorable to the defendant. ”  Chew, 150 N.J. at 63 (citing Reed, 133 N.J. at 253).
[brief] (Ja329).  Counsel for Plaintiff provided the Planning Board with a copy of a February 7, 2024 letter objecting to the AINR Report’s conclusion that the Property qualified as an area in need of redevelopment.  (Ja205).  The letter enclosed: (a) an October 2023 report prepared for Plaintiff entitled “Planning Evaluation - Determination of an Area in Need of Redevelopment” (the “Planning Evaluation Report”) prepared by [...], AICP/PP, LLA, LEED AP ND of [...] (Ja209); and (b) a February 6, 2024 Memorandum prepared by [...] in response to the AINR Report (the “Roberts Memorandum”).
[brief] Simply put, the Court’s assessment of the need to incapacitate and deter was not supported by competent, credible evidence in the record, failed to properly weigh [...]’s positive prison record and other post-offense rehabilitative conduct, and failed to consider social science regarding the age-crime curve, adolescent brain development, and deterrence.  See Points I.A and B, supra.  Thus, this Court should reverse and remand with instructions that the trial court properly consider [...]’s positive prison record and other post-offense rehabilitative conduct, and social science regarding the age-crime curve, adolescent brain development, and deterrence.
[brief] However, Plaintiff is entitled to all legitimate inferences regarding factual disputes at the summary judgment phase.  Moreover, while there may not be any corroborating witnesses, there is (contrary to the Trial Court’s opinion) circumstantial evidence that would lend credence to the notion that Defendant [...] may have done so, and would support [...]’ testimony.  First, Defendant [...] herself testified that she advocated for the staffing coordinators to get COVID-19 incentive pay that was denied them by Defendant [...] because they were not involved in direct patient care.
[directive] Any policy, standing operating procedure, directive, or order promulgated by an agency pursuant to this Policy shall provide that: (a) a law enforcement officer employed by the agency may only use a BWC system that has been issued and approved by the agency; (b) an officer equipped with a BWC must comply at all times with the requirements established in this Policy and in the agency’s policy, standing operating procedure, directive, or order issued pursuant to this Policy or by law; (c) a BWC shall be used only in performance of official police duties and not for personal purposes; (d) no BWC recording shall be accessed, viewed, copied, disseminated, or otherwise used by a sworn officer or civilian employee of the agency except for an official purpose specified in this Policy or by law; and (e) any sworn officer or civilian employee of the agency who knowingly violates the requirements of this Policy or the agency’s policy, standing operating procedure, directive, or order, or applicable laws, shall be subject to discipline.
[brief] Notice of Motion in Limine to Bar Outstanding Medical Expense And Property Damage ¹ ........................................  Da1 Proof of Mailing ........................................  Da3 Brief in Support of Notice of Motion in Limine ............  Da4  Exhibit A – Police Report .................................  Da11  Exhibit B – Plaintiff’s Pre-Trial Memorandum .......... Da15  Exhibit C – Letter to Plaintiffs dated 8/12/21 .......... Da20  Exhibit D – Payment Summary – [...] .................. Da22  Exhibit E – Payment Summary - [...] ................... Da24  Exhibit F – Email from [...], Esq. 12.16.21 ....  Da26  Exhibit G – eCourts civil Case Jacket .................  Da28  Exhibit H – Check details ...............................  Da32  Exhibit I – Letter to [...] from [...] dated 6/28/19 .....  Da45  Opposition to Defendant’s Motion in Limine ......................  Da47  Order Denying Defendant’s Motion in Limine as Moot to Bar Outstanding Medical Expense and Property Damage Claims .............  Da49  ¹  Inclusion of Respondent’s Notice of Motion in Limine to Bar Outstanding Medical Expense and Property Damage in Respondent’s Appendix is permitted by R. 2:6-1(a)(2).
[brief] Indeed, it is hard to see how the court system can justify overseeing the very type of identification procedure it would likely criticize law enforcement officers for conducting.  [254 N.J. at 585-86.]  It is equally hard to see how the prosecution and justify eliciting the very type of identification that it knows would be inadmissible if administered by a police officer in an out-of-court identification procedure.  However, even if this Court determines that “the State acted in good faith” in eliciting an in-court identification in this case, that determination was not dispositive in G.E.P. and should not be here.  243 N.J. at 388.  Ultimately, the G.E.P. Court weighed the fact that the rule barring CSAAS testimony was “designed to enhance the reliability of the factfinding process” against the relatively small administrative cost of granting pipeline retroactive application to the forty cases then on appeal, and held that the rule barring CSAAS testimony should be afforded pipeline retroactivity.
[brief] In the interest of protecting the Estate, the Court should determine whether the payment of legal fees to Defendant’s own law firm – at the expense of placing Estate assets at risk – was appropriate.  This is particularly true when Defendant has acknowledged using his law firm to perform common and unskilled functions.  See, e.g., Matter of Risica’s Estate, 179 N.J. Super. 452, 458 (App. Div. 1981).  Furthermore, in his brief, Defendant cites to several litigations pending in the New York Courts involving the Estate or a New York corporation partially owned by the Estate.  While Defendant’s Certification stated that the litigation to evict Plaintiff from and gain access to the New York property was instituted in December 2021 (Pa84, at ¶127), said matter is still pending more than two years later.  Furthermore, despite Defendant obtaining injunctions in both New York and New Jersey granting him access to and management of the Upper East Side property, he has allowed the property to fall into disrepair, and be subject to numerous violations of New York building and sanitation codes, including the tenants being without hot water.  The trial court was aware that the Decedent’s home and personal property were sold for over $900,000 combined, and heard Defendant’s counsel state that “there is nothing in the estate. ” (1T8:3-6).  Nevertheless, the Court found that the information provided constituted an informal accounting.  Nothing could be further from the truth, and such a gross conclusion requires not just a reversal by this Court, but an Order requiring that Defendant file a judicial accounting.
[brief] 457 N.J.Super. at 409, 509.  This Court held that the instruction did not fully and clearly address the prejudicial aspects of the testimony, and as such could not be capable of curing the taint of the inadmissible evidence.  *Id.* at 512.  Here, [...] testified that [...] was a member the [...], which according to [...]’s investigation report has a reputation as “one of the most violent motorcycle gangs on the East Coast.
[directive] Approved CEDs 9.1  The Panel shall review and provide recommendations concerning the specifications and characteristics of CEDs that may be deployed and used pursuant to this policy.  Those specifications will include the following requirements:  (a) the device must be capable of making a date- and time-stamped digital record of each occurrence when the darts/electrodes are fired, and of each occurrence when an electrical current is discharged; (b) the device must be capable of making a digital video recording of each such firing and electrical discharge, where the focus of the internal camera is centered on the person against whom the CED was targeted, except that an agency is authorized to purchase and deploy an approved CED that does not have the capability of making a digital video recording provided that such device may only be carried and used by an officer who is equipped with a BWC as defined in Attorney General Law Enforcement Directive No. 2015-1, and further provided that, notwithstanding any other provision of this policy, such device shall not be fired or discharged during an actual operation unless the officer has activated the body worn camera.  Nothing herein shall be construed to preclude the officer from firing or discharging the device in the event that the officer’s body worn camera malfunctions, or if the exigency of the situation made it unsafe or infeasible for the officer to activate the body worn camera before firing the device; and (c) the device must safeguard all such digital data and video recordings to ensure that they can be accessed or erased only by appropriate supervisory personnel in accordance with rules, regulations, standing operating procedures or orders promulgated pursuant to this policy.  9.2
[brief] On January 8, 2020, a [...] returned [...], charging defendant-respondent [...] with second-degree Vehicular Homicide (re: victim [...]), contrary to N.J.S.A. 2C:11-5 (count one); fourth-degree Assault by Auto (re: victim [...]), contrary to N.J.S.A. 2C:12-1c(2) (count two); and fourth-degree Assault by Auto (re: victim [...]), contrary to N.J.S.A. 2C:12-1c(2) (count three).
[brief] Public entities are creatures of State law.  Public entities must comply with the Law.  In sum, this hybrid prerogative writ/declaratory judgment/civil rights act violation action highlights the Olmstead v. United States, 277 U.S. 438, 465 (1928) dissenting warnings of [...] made ninety-five years ago.  Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commanded to the citizen.  In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously.  Our government is the potent, the omnipresent teacher.  For good or for ill, it teaches the whole people by its example.  Crime is contagious.  If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself, it invites anarchy.  (emphasis supplied).  **CONCLUSION**
[brief] Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz, 105 N.J. 42, 58 (1987); State v. Gaitan, 209 N.J. 339, 350 (2012).  A defendant “must demonstrate a prima facie case for relief before an evidentiary hearing is required, and the court is not obligated to conduct an evidentiary hearing to allow defendant to establish a *prima facie* case not contained within the allegations in his PCR petition. ”  *State v. Bringhurst*, 401 N.J. Super. 421, 436-37 (App. Div. 2008).  Moreover, the *Strickland* standard applies equally to assertions of ineffective assistance of counsel associated with the entry of guilty pleas as to trial derelictions.  *Gaitan*, 209 N.J. at 350-51; see also, *Hill v. Lockhart*, 474 U.S. 52, 57 (1985).  The first prong of the *Strickland* test requires a defendant to show that his counsel’s performance was deficient, that is, counsel’s performance fell below the standard of “reasonableness under prevailing professional norms.
[brief] [...] charged Mr. [...], the Appellant, with fifteen counts including burglary, robbery, conspiracy to commit burglary and robbery, firearms offenses, tampering and murder.  (Da.01-17). 5  On June 19, 2013, following a jury trial, [...] was convicted of second-degree burglary (two counts), second-degree conspiracy to commit burglary, first-degree murder and felony murder, second-degree conspiracy to possess a firearm for an unlawful purpose and second-degree possession of a firearm for an unlawful purpose.
[brief] The problem in this dispute over the adequacy of notice is that the evidence thus far produced has the capacity to support the claim that the methods of notice—the letter and website link—were not reasonably designed to likely reach the categories of members who may have been affected by the erroneous reimbursement rates.  The Unions have advanced some evidence on which there could be based a finding that the notice was not reasonably designed to give notice to the proper universe of individuals affected.  Against that presentation, based on the present record, the Court cannot conclude that either the website's ten-word, cryptically described notice and link or the letter to the certifying officers provides sufficient evidence to support deferring to the agency's choice of notice as reasonable.
[brief] A. 2C:43-6(b).  “[P]eriods of parole ineligibility are the exception and not the rule.  They are not to be treated as routine or commonplace. ”  State v. Kruse, 105 N.J. 354, 359 (1987) (internal quotation marks omitted).  This trial court failed to justify the imposition of this parole of parole ineligibility.
[brief] Municipalities are constrained to take into account the policies embodied in DEP regulations.  See, Bubis v. Kassin, 184 N.J. 612, 629, 630 (2005)  [...]’s summary judgment motion turned on the applicability of clearly established Public Trust Doctrine “public access principles” as established and announced in (1) New Jersey’s *now statutory* Public Trust Doctrine Law (effective July 1, 2019) (2) the administrative rules and regulations and standards promulgated thereunder by the [...] ([...]) (effective July 1, 2019), *as well as* (3) the long and clearly established New Jersey and Federal common law public trust doctrine principles that literally go back hundreds of years.
[brief] Another twenty-three were shown, with [...]'s sole testimony pointing out the specific car to look at among multiple cars.  Throughout this testimony, there were no objections from defendant.  Moreover, the questions posed by the defendant during cross-examination underscore that Detective [...]'s testimony clarified the investigation, outlining how the police constructed the route and timeline.  Defendant, attempting to show the jury that the police rushed to judgment, questioned [...] about the police's belief that the "vehicle of interest" went from the turnpike to the scene of the crime without stopping.  (5T207-25 to 208-8; 5T210-23 to 211-1).  In her response, [...] acknowledged they were assembling the travel route as surveillance from their canvassing arrived.  She clarified that she could not rule out the possibility of the car making stops after leaving the turnpike because they were still investigating other areas and did not have enough videos to make a definite determination.  (5T207-25 to 208-6; 5T233-23 to 234-2).  [...] noted that the police received all the surveillance footage by August 15, and the complaint against defendant was not filed until August 28.  (5T249-13 to 250-5).  Detective [...]'s narration played a crucial role in assisting the jury in making their ultimate decision of the car's identity.
[brief] ”  N.J.S.A. § 10:5-12(a).  Based on the factual record, Plaintiff cannot establish she even engaged in any protected activity.  First, with regard to the [...] Comment that Plaintiff reported to [...] about Trump building a wall, although likely insensitive and inappropriate in a school setting, the teacher’s professed support of Trump for building a wall, by itself without more, is not necessarily racist.  Thus, Plaintiff’s reporting of that comment by a teacher does not constitute a protest of discriminatory employment practices.  Indeed, Plaintiff acknowledged during her deposition that when speaking with [...] about the comment, she “informed her as an agent of the school, she is to stay neutral and not share her personal feelings in regards to politics with the students. ”  (Pl. Tr. 238:14-24; 241:19-22) (emphasis added).  By her own admission, therefore, Plaintiff did not believe the [...] Comment was racist or otherwise discriminatory.  Thus, she was not complaining to [...] about a discriminatory employment practice when she told him about the political [...] Comment.  Because Plaintiff failed to identify any conduct proscribed by LAD, she did not engage in a “protected activity” and cannot establish her retaliation claim.
[brief] See In re Ordinance 2354-12 of West Orange, Essex Cnty., 223 N.J. at 601 (“[A]ny expansion of the limitation period must be balanced against the important policy of repose expressed in the rule”); Tri-State Ship Repair & Dry Dock Co. v. City of Perth Amboy, 349 N.J. Super. 418, 423 (App. Div. 2002) (“Because of the importance of stability and finality to public actions, courts do not routinely grant an enlargement of time to file an action in lieu of prerogative writs”) (citing County of Ocean v. Zekaria Realty, 271 N.J. Super. 280 (App. Div.), cert. denied, 513 U.S. 1000 (1994)).  This case perfectly illustrates the identified danger.  All land use decisions made by a local government inevitably affect certain nearby property owners.  Here, the Committee did everything it could to minimize the impact of the proposed Redevelopment Plan by specifically locating it on property on the periphery of town “to limit impacts within the critical portion of the Township. ” (Pa98).  In effectuating this Redevelopment Plan the Committee followed all dictates of the LRHL.  In reliance upon this duly enacted, intently constructed ordinance, [...] and the Committee proceeded to negotiate and enter into Redevelopment and Financial Agreements, and [...] in turn expended millions in crafting a site plan application based thereon that has now been approved.  (Pa268 – Pa283; Da27 – Da33).  To allow [...] to challenge this ordinance nearly two hundred (200) days beyond the close of the appeal period would thwart the public interest by inverting the policy of repose.  The result would be the needless frustration of time, resources, and reasonable expectations of [...] and the Committee who rightly relied upon these actions, merely because [...] disagrees with this by-right use of [...]’s Property.  Such a result would “subordinate the public interest in repose to the private interest of the objectors,” which Rocky Hill forcefully rejected as “unacceptable as an appropriate outcome.
[brief] Heuer v. Heuer, 152 N.J. 226, 238, 704 A.2d 913 (1998) (quoting Neubeck v. Neubeck, 94 N.J. Eq. 167, 170, 119 A. 26 (E. & A. 1922)).  "It is the effect of the inequitable conduct on the total transaction which is determinative whether the maxim shall or shall not be applied."  Heuer, 152 N.J. at 238 (quoting Untermann v. Untermann, 19 N.J. 507, 518, 117 A.2d 599 (1955).  The allegations that Respondent advances allegedly occurred sometime during a twenty-nine-year period and in most instances, the alleged incidents are undated and lack any specificity.  The unclean hands doctrine is not appropriate here because there is no correlation between the alleged wrongful conduct and the underlying controversy, which is whether the Respondent unduly influenced the Decedent to make a will that named her as the sole beneficiary.