ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] CASES  Briglia v. Mondrian Mortgage Corporation, 304 N.J.Super. 77 (App. Div. 1997) .................. 20, 21 Cardenas v. Severino, 2019 WL 6598238 (App. Div. Dec. 5, 2019)  ........... 22, 23 C.W. v. Cooper Health System, 388 N.J. Super. 42 (App. Div. 2006)  .....................  10  Davidovich v. Israel Ice Skating, 446 N.J. Super. 127 (App. Div. 2016)  ....................  10  Dupree v. City of Clifton, 351 N.J.Super. 237 (App. Div. 2002)  ....................  14  Foley v. Ulrich, 50 N.J. 426 (1967) ............... 27, 28, 29, 30, 31, 35, 36  Foley v. Ulrich, 94 N.J.Super. 410 (App Div. 1967), rev’d 50 N.J. 426 (1967)  ..................................................  28  Grijalba v. Florio, 431 N.J. Super. 47 (App. Div. 2013) .......... 18, 19, 20, 21 Ji v. Palmer, 333 N.J. Super. 451 (App. Div. 2000) ....................  10  Lombardi v. Masso, 207 N.J.  517 (2001) ........................................ 10, 11  Luchejko v. City of Hoboken, 207 N.J. 191 (2011) ...................... 14, 15, 16, 27, 34, 37  Murray v. Michalak, 114 N.J. Super. 417 (App. Div. 1970) ....................  15  TABLE OF AUTHORITIES (CONT’D)  CASES
[brief] Furthermore, it is apparent that the Applicant is not even considering other documents that were supposed to be part of the application materials, part of the subdivision application.  In response to the instruction to not discuss stormwater, the board member tried to reference the fact that there was a stormwater report in the materials.  (1T40-19 to 1T41-13).  In response, the Applicant’s attorney responded “That is part of site plan…  Number one, that is part of the site plan review.  That’s in the file for that.  We’re working – you just need a supplemental submission related to the stormwater management that will be part of the site plan application going forward.  That’s not part of this application. ”  (1T41-16 to 1T14-23).  Therefore, even if the ordinance simply required these as checklist submission items not to be discussed, which they are not, the Applicant’s own testimony is that these materials were not submitted for the subdivision application.  The record for the subdivision approval only includes the three exhibits and the testimony during the hearing.  Without evidence submitted or testimony about the enumerated requirements, the explicit requirements of both the MLUL and the municipal ordinances were not met.  Most importantly, there is nothing in the record to support any finding that the project “has been affirmatively determined, after an environmental assessment, that the proposed project:  [1]  Will not result in a significant adverse impact on the environment.  [2]  Has been conceived and designed in such a manner that it will not significantly impair natural processes.  [3]  Will not place a disproportionate or excessive demand upon the total resources available to the project site or to the impact area. ”  [...] Ordinance §142-77(B)(26)(f).  A review of the resolution shows no such finding, as none could be made.  See Pa245-Pa253.  This determination is expressly required under the ordinance, and expressly made clear that it applies to major subdivision applications.  The approval not only violates the [...] ordinances pertaining to the review of major subdivision applications, but also by implication the MLUL.  It is well established law that the burden of proving the right to relief sought in an application is on the applicant.  See Jacoby v. Zoning Bd. of Adjustment of Borough of Englewood Cliffs, 442 N.J. Super. 450, 471 (App. Div. 2015); Chirichello v. Zoning Board of Adjustment, 78 N.J. 544, 559-60  Here, there is simply an absence of the required information necessary to make a decision on the subdivision application.  For these reasons, the Board’s approval of the application for preliminary and final major subdivision approval was arbitrary, capricious, and unreasonable, and must be reversed and remanded for further proceedings.
[brief] (27T170-24 to 27T171-4).  The judge referred to the charge of assault as a “lesser included charge. ” (27T171-3 to 5).  The judge explained to the jury that the law requires the court to charge “lesser included offenses” even if they are not contained in the indictment.  (27T171-6 to 8).  The judge instructed the jury to consider these assault offenses along with those in the indictment.  (27T171-13 to 14).  The jury was then instructed on the elements of the different assault charges being submitted to it.  (27T171-24 to 27T184-25).
[brief] Petitioner, On Appeal From [...]  Docket No.: [...] v. BOARD OF TRUSTEES, [...], Respondent.  BRIEF ON BEHALF OF APPELLANT Of Counsel and On the Brief: [...]  TABLE OF CONTENTS  TABLE OF AUTHORITIES........................................................................................................ii  APPENDIX TABLE OF CONTENTS..........................................................................................iv  TABLE OF JUDGMENTS, ORDERS, AND RULINGS......................................................xi  PROCEDURAL HISTORY........................................................................................................1
[brief] **Point II**  **[...]’s claim was precluded by *res judicata*, collateral estoppel and the entire controversy doctrine (Da809). **  [...] argued below that *res judicata*, collateral estopped and the entire controversy doctrine precluded [...]’s claim by virtue of the 2006 and 2008 judgments entered in the *Trunell* litigation.  [...] rejected that argument but it is meritorious and warrants reversal.  *Res Judicata*
[directive] a.  In all cases where all of the defendants in the case have been charged and all of the defendants are deceased, upon proof of death being submitted, a request for destruction authorization may be submitted.  b.  In cases where the defendants were convicted and no appeals or post-conviction relief motions are pending, after a period of 5 years from the date of conviction or upon the defendants’ expiration of sentence, whichever is later, a request for destruction authorization may be submitted, c.  In all cases where the defendants have been admitted into the Pre-Trial Intervention Program (PTI), have successfully completed PTI, and have been discharged, upon the court’s signing an order dismissing the case as to all parties, and upon the expiration of the longest sentence of any co-defendants not admitted into PTI, a request for destruction authorization may be submitted.  d.  Where a controlled buy or an undercover buy has taken place and the investigation has been officially closed by the investigating agency with no prosecution having been instituted against anyone, after a period of one year and one day, a request for destruction authorization may be submitted.  e.  In cases where a controlled dangerous substance has been submitted to a Forensic Laboratory for analysis and has not been connected to any suspect or defendant and has been submitted as Found Property, a request for destruction authorization may be submitted one year and one day after it has been submitted to the laboratory upon verification by the submitting agency that no prosecution has been instituted relating to the evidence.  Attorney General Guidelines - Evidence Retention - Page 6 January 2011
[brief] The Court held that the detective had a reasonable and articulable suspicion to believe that defendant was committing a crime beyond the observed motor vehicle violations and upheld the stop and the use of the canine to sniff the vehicle’s perimeter.  Id. at 555.  Here, [...] properly looked at the totality of the circumstances to determine that the prolonged stop of the vehicle was justified by the officer’s reasonable and articulable suspicion that there was “a crime afoot. ”  Nelson, supra, 237 N.J. at 554.  [...] pointed to defendant’s nervous behavior and the contradictory stories between defendant and co-defendant and defendant’s own contradictory statements.  [Da13-14].  When asked where he was coming from, defendant told the officer he was coming from New Jersey.  [Da13].  When asked where he was going, he was unable to give a clear answer.  He answered he was going to New Jersey at one point.  [Da13].  Defendant argues that nervousness alone does not establish a basis for probable cause, but the officer clearly did not rely on nervous behavior alone to form his reasonable and articulable suspicion.  The officer pointed to defendant’s answer that he was coming from a country club but was not dressed for a country club and did not have any golf paraphernalia in his truck, like clubs.  [1T7-18 to Defendant told the officer he was going to Virginia, too.  [1T17-1 to -2].  Defendant and co-defendant talked over each other.  [Da13].  It was not merely nervous behavior that escalated the stop from a motor vehicle stop to a search of defendant’s car.  The officer had a well-grounded reasonable and articulable suspicion that there was criminal wrongdoing.  Defendant’s nervous behavior went beyond the behavior discussed in defendant’s brief.  His answers were self-contradictory and his breathing patterns shifted.  [Da13].  Defendant points to State v. Nyema, 249 N.J. 509, 535 (2022), to support his contention that nervous behavior alone does not form the basis for a reasonable and articulable suspicion.  Here, however, unlike the officer in Nyema, who investigated based upon a hunch, [...] looked to the totality of the circumstances, which included defendant’s nervousness, but also defendant’s non-responsive, self-contradictory answers to his questions and co-defendant’s behavior.  When viewed in whole, [...]’s observations formed a reasonable and articulable suspicion that there was criminal wrongdoing.  [...] properly denied defendant’s motion to suppress the evidence and stop of the vehicle.  Defendant cannot succeed on this argument.
[brief] The plan amendment, among other things (1) eliminated any density limitation only for [...]; (2) increased the permissible height allowed only for [...]; (3) increased allowable coverage only for [...]; and (4) eliminated protection from building shadowing for every developer other than [...].  (Compare Pa515 to Pa523 (Design Guideline 6) to Pa291 (2020 Plan Amendment)).  In the absence of these changes, [...] would have been required to obtain a use variance for density, N.J.S.A. 40:55D-70(d)(5), and a use variance due to excessive height, N.J.S.A. 40:55D-70(d)(6).
[brief] During the summer and fall of 2023, [...] advised that he wanted to practice at [...], which he admitted was within the restrictive radius.  The --- \(^4\)  [...]’s hyperbolic argument that the Restrictive Covenant covers over 3,000 miles is patently false.  He is well aware that other former Practice employees with the same Restrictive Covenant are currently practicing in [...], after the Court enforced their covenant.  Similarly, any hospitals at issue is also within the same radius as [...]’s offices.  (Ra16-17, ¶47-50) parties engaged in negotiations regarding a possible amendment to [...]’s Employment Agreement and Restrictive Covenant, but they did not reach a final agreement.  (Ra18, ¶¶55-56).  On October 17, 2023, the Practice advised [...] of the terms of [...]’s Employment Agreement (which [...] should have done) and reserved all of its rights regarding same.  (Ra140, 2T12:13-13:6).  [...] did not respond to the letter, and the Practice did not take any action.  (Id.).  **[...] Files His First Failed Application**
[brief] Instead, the legal malpractice claims against [...] simply arise out of their failure to advise Plaintiffs of their fraudulent scheme and participation in the conspiracy, and how Plaintiffs’ money would actually be wrongfully taken and distributed among [...] and the co-conspirators Defendants.  Plaintiffs respectfully submit that the average juror, “using ordinary understanding and experience, to determine a defendant’s negligence without the benefit of the specialized knowledge of experts,” is capable of knowing that an attorney commits malpractice when he fails to advise his clients that they have structured a transaction for the purpose of conspiring to steal their money.  Bender v. Walgreen E. Co., 399 N.J. Super. 584, 590, 945 A.2d 120, 122-23 (App. Div. 2008).  Plaintiffs do not claim that [...] negligently drafted transactional documents or negligently performed land use work.  Instead, the legal malpractice that Plaintiffs are alleging is that [...] failed to advise them that [...] and the co-conspirator Defendants would defraud Plaintiffs of a certain amount of the money Plaintiffs paid in pursuit of the transaction.  Such malpractice is common knowledge and does not require an AOM.  Likewise, [...]’s negligent supervision of their attorney trust account does not require expert opinion.  Any person knows that if one is entrusted with the funds or anything of value of another, the entrusted party must ensure said funds or things of value are not distributed negligently or fraudulently to unintended recipients, otherwise they have been negligent in the supervision of those funds.  Furthermore, as the court held in Mazur v. Crane’s Mill Nursing Home, 441 N.J. Super. 168, 183, 117 A.3d 181, 191 (App. Div. 2015), “an AOM is not necessary to support a claim against a firm whose employee or agent acted negligently if the claim against the firm is solely based on a theory of vicarious liability or agency.
[brief] Plaintiff was to begin working at the [...] on December 3, 2018; however, on December 7, 2018, Plaintiff emailed Defendant [...] and advised that, “[a]s a result of the issues that have taken place involving [...]’s sexual harassment of me, I have been under an extreme amount of stress and had to call out of work today,” and that she would be “following up with my doctor to address. ”  (Pa227, Plaintiff’s Answers to Interrogatories, Par. 2).  Over the ensuing several months, Plaintiff continued a medical leave of absence, which [...] extended on numerous occasions.  (Da10, December 11, 2018 email from HR Representative [...]; Da12, December 14, 2018 email from HR Representative [...]; Da22-Da24, Emails of February 19, 2019, June 10, 2019 and July 10, 2019 from HR Representative [...]).
[brief] CONT’D D.  THE COURT MADE NO FINDING AS TO PLAINTIFF CLAIMS FOR ATTORNEYS FEES IN THE PROBATE ACTION AND CLAIMS ARISING OUT OF BALSAMO’S NEGLIGENT ADVICE  CONCERNING THE MORTGAGE (APPEALING THE ORDER DATED MAY 17, 2023 FOUND AT PA000337 AND ORDER DATED MAY 26, 2023 FOUND AT PA000351)  .................................................................31  CONCLUSION ..................................................................................................................31
[directive] Prosecutor to County  In subsection 4.5.9. to pursuant overcome is complaint-warrant charging by of presumption the or violence involve to not appear do convictions or charges pending out-of-state that event the the Section 4.3, to pursuant applies acomplaint-summons issuing of presumption a and firearms in circumstances of totality the of part the as offense out-of-state an consider may prosecutor presumption. that overcome to whether deciding juvenile defendant's of importance potential a recognize the expressly Rules Court recently-amended The 14 a that presumption deciding a from overcome to judge a prohibits 3:3-1(g) Rule Specifically, history. criminal juvenile defendant a years preceding as the ten the within "whether considering without issued be complaint-warrant would adult if an by or committed crime firearm, that a a involving crime a escape, for delinquent adjudicated was offenses." foregoing the commit of any to attempt an or . . . Act Early Release No the to subject be 44 Page Complaint-Wa~~ant. a Applyingfor of Presumption the Overcoming 4.5.9 to pursuant for applying acomplaint-warrant of presumption a is there where any case
[directive] 2.3  Force as a last resort.  Officers shall exhaust all other reasonable means to gain compliance before resorting to force, if feasible.  Thus, if a safe alternative would achieve law enforcement’s objective, force shall not be used.  Officers shall, therefore, use verbal commands, critical decision making, tactical deployment and de-escalation techniques to gain voluntary compliance, when feasible.  Importantly, officers shall never engage in unnecessary, overly aggressive, or otherwise improper actions that create a situation where force becomes necessary.  2.4
[brief] On that score, FERPA and NJPRA are silent: neither statute requires schools to affirmatively notify parents of their children’s gender identity or expression in the absence of a records request.  See (Da137) (finding that enjoining schools from affirmatively “notifying parents of a child’s transgender identification or expression” on a blanket basis in no way “would prevent parents from ‘inspect[ing] and review[ing] the education records of their children. ’” (quoting 20 U.S.C. § 1232g(a)(1)(A))).  Nor do they provide a justification for promulgating a blanket rule that discriminates on the basis of gender identity or expression.  As a result, the trial court correctly determined, “[Appellants’] arguments that imposing restraints will compel them to violate state and federal law are not persuasive. ”  (Da136).  Appellants’ claim that the preliminary injunction would somehow require them to violate the terms of FERPA and NJPRA is particularly weak given that it simply restores the status quo ante—the Original Policy that has been in place since 2019.  (Da121).  Appellants have not pointed to any instance where the Original Policy exposed them to any liability or claim under FERPA or NJPRA.  (Da137).  The State confirmed at oral argument that under the State’s requested relief, Appellants would still be required to supply school records to a parent making a valid request under state or federal law, just as they had presumably been doing prior to the pre-2023 amendment.  (Da127; 1T12:18-14:5; 1T58:23-60:1).  In other words, the preliminary injunction does not preclude Appellants from complying with federal and state recordkeeping laws, but rather requires compliance with the LAD.  Appellants can and must do both.  iii.
[brief] Finally, the act of opening a replacement bank account is not “intrinsically fiduciary. ”  [...] suggests otherwise (see Appellant Br., 45), but he has not cited any supporting fact of record or case law (from this jurisdiction or others).  He cannot.  When parties deal at arms’ length, without misrepresentations or affirmative steps to conceal key facts, their transaction is not “intrinsically fiduciary” in nature.  See Fisher Dev. Co. v. Boise Cascase Corp., 37 F.3d 104, 111 (3d Cir. 1994) (holding that the relationship between landlord and tenant was not “intrinsically fiduciary” because the parties negotiated at arms’ length, the landlord did not misrepresent any facts, and the landlord did not conceal the condition of the property).  Of course, accepting [...]’s contrary position, and imposing a fiduciary relationship under the circumstances of this case, would effectively create a fiduciary relationship between every bank and depositor.  The mere act of opening a bank account, even under the circumstances of this case, does not suggest or support the imposition of such a relationship.  Accordingly, this Court should adhere to the principle that “there is no presumed fiduciary relationship between a bank and its customer,” Kensey, 306 N.J. Super. at 552, and affirm the trial court’s conclusion that no fiduciary duty existed here.
[directive] While the appropriate legal standard should be applied for excusing a prospective juror for cause, liberality is encouraged.  Judges should avoid extensive efforts to "rehabilitate" a juror or to reject reasons given implicitly or explicitly by the juror for not serving, recognizing that such efforts indicate that there are significant issues about that juror.  When there is something particular about the juror that raises a red flag in a particular case type (e.g. a police officer in a criminal case, a nurse in a medical malpractice case, etc.), follow-up questioning should be sufficiently probative to ferret out the ability of the individual to fairly judge the case; merely asking whether, notwithstanding the apparent impediment, he or she could be fair and impartial, with a conclusory answer, is not sufficient.  Jurors who express hardship problems (childcare issues, absence from work without pay, etc.) should be liberally excused, particularly where the trial is anticipated to require more than two or three days or extend into the following week.
[brief] Based on [...]’s report, [...] filed a motion to suppress the contents of the bag, arguing, among other things, that the tip the C.I.D. units received did --- 2  The bodycam footage does not show [...] tell the occupants that they were stopped because their seatbelts were not fastened.  Instead, saying, “Any reason why you guys were following so close?”  (Da 23; 1T 19-9 to 19-10)  3  At the suppression hearing, [...] testified that [...] was holding the bag with his left hand.  (1T 15-18 to 15-20)  However, the bodycam footage showed that [...] did not have either hand on the bag; that is because he was holding a cell phone in one hand and a cigarette in the other.  (Da 23; 1T 33-5 to 34-23) not provide [...] with reasonable suspicion to remove [...] from the car and frisk him.
[brief] [Pa3334]  Appellants had not, however, made any request for entry of default.  Nor did Appellants serve (or even attempt to serve) [...] with the Motion.  In support of the Motion, Appellants filed a Certification of their counsel, [...], Esq. [Pa3337], together with a Proof of Service of --- \(^2\)  The Motion for Default Judgment was filed against both [...] and Defendant [...] (“[...]”).  Process annexed thereto as an exhibit [Pa3342], wherein [...] certified that he personally served [...] with the Amended Complaint on August 12, 2021 “by serving their general counsel [...] at their joint offices. ”  In his Proof of Service, [...] stated that he had delivered a copy of the Amended Complaint to [...]’s secretary, not [...], in [...].  [Pa3342]  [...] is a named defendant in the Amended Complaint, and has never represented or been employed by [...].  [...] supplied no factual basis for his assertion that [...] was the “general counsel” of [...], a publicly traded company whose general counsel is a matter of public record.  In short, [...] was never served with the Amended Complaint, and [...] had no reason to believe it was.  On March 4, 2022, noting that the Motion was unopposed, [...] entered an Order granting default judgment against [...] [Pa3387], but that Order was vacated almost immediately as having been entered in error, with a hearing scheduled for April 1, 2022 to consider Appellants’ Motion.
[brief] ” (Db46; see *N.J.S.A. 2C:11-3(a)(1)-(2)*).  Defendant’s subjective belief that the circumstances of [...]’s death were not “unusual” does not diminish the excessive pain and fear that [...] experienced when he was shot in the face by an individual he had been conversing with only moments prior.  Defendant discharged his firearm within “a few inches” of [...]’s face, rupturing [...]’s eye and exiting through the left side of his neck.  (4T:49-21 to 50-5 and 50-25 to 51-7).  This injury would have caused a “tremendous amount of bleeding. ” (4T:51-24 to 52-1).  Unsatisfied, defendant discharged the firearm again, sending a bullet into [...]’s chest below his left clavicle.  (4T:52-5 to 23).  Defendant thereafter fired two final shots into [...]’s back, one of which passed through [...]’s aorta and caused “a significant [amount] of bleeding in the [victim’s] . . . chest cavities,” which the State’s expert opined would lead to an “exsanguination[,] where a person would bleed out. ” (4T:53-2 to 54-8).  Defendant’s choice to shoot [...] in his face at an extremely close range was especially cruel and instilled fear and confusion in [...] before his sudden death.  Defendant caused [...] to experience more pain by firing three additional bullets into his body, despite the fact that the initial gunshot wound caused a “tremendous amount of bleeding.