ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Counsel [...] reaffirms the plaintiff’s argument accusing the defendant who asked the question\(^{30}\), kept going with her line of questioning, and that it does not in fact raise rise to the level of plain error Rule 2:10-2 (2T13:18-25).  The Superior Court prefaces in reviewing the record, based on (1) the plaintiff’s witness was found credible and very good (2T14:23-25), (2) on the contrary found it difficult to determine whether or not [...] is credible because it’s difficult to determine due to the questions asked to [...] were leading questions; some of his answers were indiscernible (2T15:13-17).
[brief] How can Plaintiffs failure be termed inexcusable through this prism?  How did Plaintiff’s supposed failure to provide an amended R. 4:5-1 notice prior to the dismissal of the lease litigation prejudice Defendants?  The loss of evidence or ability to find witnesses in the five (5) month interval between the settlement of the lease case and the institution of this action has had no effect on Defendants’ ability to defend this action.  The Defendants did not even assert a credible claim of substantial prejudice pursuant to R.1:6-6.
[brief] Though inadequate by defendant's lights, [...]'s sentencing findings are fully compliant with the law, accounted for defendant's mental health issues, and appropriately considered defendant's prior endangering conviction in fashioning a just sentence for defendant's crime.  Sentences are reviewed for abuse of discretion.  *State v. Jones*, 232 N.J. 308, 318 (2018).  Under that standard, the “appellate court must affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) the application of the guidelines to the facts of the case makes the sentence clearly unreasonable so as to shock the judicial conscience.
[brief] **POINT 1** ...........................................................................  21  The Court Erred in Deciding Not to Enforce [...]’s Order (18a)  **POINT 2** ...........................................................................  23  The Court Violated Defendants’ Right to Fairness and Due Process (18a)  **POINT 3** ...........................................................................  27  The Court Overlooked Controlling Law with Regard To Trust Interpretation (18a)  **POINT 4** ...........................................................................  34  The Court Reformed the Trust Without Clear and Convincing Evidence (18a)  **POINT 5** ...........................................................................  37  The Court Erred in Denying Leave to File Supplemental Complaints (60a, 62a)
[directive] It is critical to note, however, that a prosecutor is not required by these Guidelines to describe on the Worksheet or otherwise explain to the court the specific factual or legal issues that give rise to the downward departure.  It is thought that prosecutors might be chilled from making appropriate use of this feature if they were required to specify and highlight potential weaknesses in the State’s proofs, since to do so during the course of ongoing plea negotiations, at which point there is no assurance that the defendant would accept the plea offer and plead guilty, might suggest possible theories for cross-examining prosecution witnesses, filing defense motions, or otherwise suggest a defense strategy, or might even lead a guilty defendant to overstate his or her chances for an acquittal and opt for a trial that might properly have been avoided by a guilty plea.  (Note, of course, that these Guidelines in no way affect a prosecutor’s ongoing obligation to comply with the rules of discovery, including the prosecutor’s legal and ethical duty to disclose exculpatory information.)  12.3
[brief] See Eggleston v. Fox, 96 N.J. Super. 142, 147 (App. Div. 1967).  As stated in Hyland v. Fonda, 44 N.J. Super. 180, 187 (App. Div. 1957), “the servient tenement will not be burdened to a greater extent than was contemplated or intended at the time of the creation of the easement * * * and the use of the easement must not unreasonably interfere with the use and enjoyment of the servient estate. ”  As held in Eckert v. Peters, 55 N.J. Eq. 379 (Ch. 1897), an easement cannot be read to provide the easement holder authority to utilize all areas of the burdened property.
[brief] It makes sense that the developer would want to pass upon all building alterations because there are some deed setback restrictions from the developer.  This power was never intended, nor can it be legally construed, to allow for the imposition of entirely new building restrictions on the property.  The Defense proffers that [...] has been religiously enforcing its own rules and that the lower court’s ruling is destroying the very fabric of the community; however, the facts tell us a different story.  Simply put, the actual status quo in Ocean Beach is the consistent approval by [...] of homes with heights well in excess of what Plaintiffs are now constructing.  Furthermore, 1948 to 1989, the club never sought to impose any construction rules, and specifically no height restrictions.  There is no sore thumb argument here.  The status quo is not disrupted nor upended, --- \(^2\) [...] has no relation to the developer but has assumed a “developer” role on behalf of [...] (Da741).  Plaintiffs have challenged his authority as well any authority of [...] to act as a developer or as successor to [...]  See, Plaintiffs’ response to Defendant’s SOMF (Da813-815). as Plaintiffs’ as-built house conforms with the 35 neighboring properties as previously approved by [...] at similar or greater heights.  See, Chart/Table of Excess Heights (441), Gross Cert.. (Da835) Plaintiffs’ SOMF #118-170 (Da362-370).  Since the ruling below is limited to Plaintiffs’ property, [...] is free to impose its rules on other members of the community and Plaintiffs, likewise, remain bound to adhere to all other [...] rules.  Whether [...] seeks to impose *ultra vires* rules is their prerogative and risk.
[brief] Therefore, the control factor may in some regards, be diminished because of the requirements of the R.P.C.s.  In that regard, see [...] v. M & T Chemicals, Inc., 236 N.J. Super. 451 (1989).  While the distinction between employee and independent contractor was not the subject, the Court did determine that:  The Conscientious Employee Protection Act is not inconsistent with the Code of Professional Ethics adopted by the Supreme Court to the extent that this discharged attorney seeks money damages for refusing to join a scheme to cheat a competitor.  There, [...] was an in-house counsel.  [...] sought money damages and not reinstatement.  In short, the Court in [...] found that CEPA and the Code of Professional Conduct are consistent.
[brief] ”’”  State v. Bernokeits, 423 N.J. Super. 365, 371 (App. Div. 2011) (quoting State v. Dickey, 152 N.J. 468, 479-80 (1998); United States v. Johnson, 58 F.3d 356, 357 (8th Cir.), cert. denied, 516 U.S. 936 (1995)) (emphasis added).  In finding suppression warranted here, [...] appears to have read the above-emphasized language as reflecting a limit in the rule of Carty and not a limit derived simply from the facts of Carty.  Carty and its progeny spoke in terms of facts derived “during the course of the stop” that established reasonable suspicion because it was dealing with stops factually premised solely on motor vehicle violations.
[brief] Moreover, to the extent (if at all) that [...] is only challenging the propriety of [...]’s May 8, 2020 decision and is not challenging the propriety of the actions taken by [...] during the trial, [...]’s decision did not constitute reversible error.  Rather, it was within her discretion to decide that a ruling on an evidentiary issue such as whether to bar and/or limit the testimony of a witness should be denied without prejudice to its renewal at trial where it could be evaluated in the context of the trial testimony.  B.
[brief] ”  State v. Shtutman, A-0812-15 (App. Div. 2017).  5  [Pa8].  Defendant’s argument that the courts used rap music to convict defendant and reliance upon State v. Skinner, 218 N.J. 496 (2014), is misplaced.  In Skinner, the State sought to admit rap lyrics written by the defendant to show the defendant’s motive and intent in killing the victim.  Id. at 502-503.  The New Jersey Supreme Court noted that the lyrics were violent and profane and had the ability to unfairly prejudice the jury against the defendant.  Id. at 524-525.  5  Pursuant to R. 1:36-3  I have attached a copy of State v. Shtutmen, A-0812-15T2 (App. Div. 2017).  I am unaware of any other relevant unpublished opinions adverse to this case.  Moreover, there was better, less prejudicial evidence available to establish motive and intent.  *Id.* at 525.  Here, [...] did not find defendant guilty of harassment because of the rap lyrics.  Indeed, his only mention of rap music is in reference to defendant’s credibility.  [...] noted that defendant disclaimed listening to rap music, but then defendant discussed her knowledge of rap lyrics at length during her testimony.  [2T16-14 to -23].  The judge did not discuss the content of the lyrics nor did he use their content to support his finding of guilt.  Similarly, in the municipal court, [...] did not use the lyrics to support his finding of guilt or for *N.J.R.E.* 404b evidence.  While defendant argues that the lyrics were protected speech, her argument is misplaced.  Defendant was not convicted because of the rap music she was listening to in her car.  [1T20-20 to -25].  Defendant was convicted because her conduct fell squarely within the parameters of the Disorderly Conduct statute and the evidence overwhelmingly proved her guilt beyond a reasonable doubt.  Defendant’s argument must fail and her conviction must stand.
[brief] 15 CONCLUSION 19 TABLE OF JUDGMENTS, ORDERS & RULINGS  Court’s Decision and Order, filed January 23, 2024 [...] TABLE OF AUTHORITIES Beck v. Beck, 86 N.J. 480 (1981) 17 Cesare v. Cesare, 154 N.J. 394 (1998) 9 Clark v. Clark, 429 N.J. Super. 61 (App. Div. 2012) 10, 13 Duratron Corp. v. Republic Stuyvesant Corp., 95 N.J. Super. 527, certif. denied, 50 N.J. 404 (1967)
[brief] Da249 (183:14-24).  [...] claimed that, during this call, [...] admitted that he had “disobeyed” [...] and used an illegal cut-through:  Q.  So he admitted it was an illegal cut-through that he took, yes?  A.  I would imagine, yes.  He said it was not the cut-through I told him to cut-through.  Q.  So he disobeyed one of your instructions?  Instead of going through the grassy cut-through, which was closer to your work area, he went and took the emergency cut-through, which was paved macadam up the road?
[brief] Given [...] did not implead any additional third-party defendants (i.e., non-employer subcontractors, the property owner, etc.), to ensure it preserved its right to seek indemnification, it became incumbent upon [...] to convince the jury that [...] was not solely responsible for Plaintiff’s injuries.  All [...] had to do was persuade the jury that the Plaintiff was at least 1% responsible for causing the accident.  [...] failed to do so and the jury found [...] solely negligent. \(^6\)  The jury’s verdict extinguished [...]’s appeal.  --- \(^5\)  Trial in this case was one day shorter than the trial in *Kane*.  \(^6\)  Despite overwhelming evidence showing [...] created the dangerous condition and exclusively caused the Plaintiff’s injuries, [...] chose to place its fate in the hands of the jury.  **[...] certainly had another viable option.**  [...] could have settled [...]’s claim, pursued this appeal, and, if successful on appeal, sought indemnification from [...].  See *Serpa v. New Jersey Transit*, 401 N.J. Super. 371, 379-380 (App. Div. 2008).  In *Serpa*, New Jersey Transit (“[...]”) sought indemnification for a settlement it reached with D.  **[...] Failed To Address The Plain Error Standard and Thus Waived Its Argument Regarding [...]’s Trial Participation**
[brief] (3T at 231:1-4).  25.  On the first day of his deposition, [...] testified that his opinion that a dangerous roadway condition caused Plaintiff’s accident is predicated upon his understanding that an abrupt 2” change in roadway elevation existed at the location of Plaintiff’s accident involving no tapering of the roadway surface.  (See Pa0186-0087 at 160:25-161:18).  26.  On the second day of his deposition, [...]’s testimony regarding the nature of the condition that allegedly caused Plaintiff’s accident materially changed.  When shown a close-up photograph of the subject condition, [...] conceded that there was some level of tapering.  (Pa0285 at 47:14-16; Pa1918).  27.  [...] testified that he never physically saw the change in elevation and that all he could go by were the photographs.  Furthermore, he testified that because the pictures were not three dimensional, he could not tell how significant or dangerous it was.  (3T at 225:5-226:7).  28.  Additionally, [...] was unaware of any other accidents that occurred in the subject area and recognized the [...] is a highly traveled roadway.  (3T at 121:21-122:20).  29.  As to the video taken by Plaintiff, [...] conceded that there was no way to know if the truck in the video traveled over the same ground as Plaintiff did on his motorcycle on the date of the accident.  [...] admitted that it is impossible to know whether the bump observed in the video was caused by the same condition that allegedly caused [...]’s accident.  [...] testified “nobody could know” if the motorcycle [...] was riding went over the same ground as the truck during the video recording.  (3T at 32:18-33:17, 76:17-78:25, 114:6-14, 141:14-143:2, 160:10-161:17)  30.  During his 104 Hearing, [...] agreed that the use of warning signs should be kept at a minimum because unnecessary use of warning signs breeds disrespect for all signs.  (3T at 214:1-7).  **STANDARD OF REVIEW**
[brief] One way to show an important public interest is through assertion of a constitutional claim.  For example, in Tri-State Ship Repair, supra, the Court rejected an enlargement of time to challenge the adoption of a redevelopment plan because no constitutional or novel questions were presented.  While adoptions of a redevelopment plan often will not justify enlargement of the 45 day appeal period, redevelopment designations can justify enlargement.  In [...], cited by Plaintiff (Pb11), the Court found that there was sufficient public interest to warrant enlargement of time to challenge a redevelopment designation of municipally owned land.  Concerned Citizens of Princeton, Inc. v. Mayor & Council of Borough of Princeton, 370 N.J. Super. 429, 435 (App. Div. 2004).  Redevelopment designations, like the one in [...] implicate constitutional issues because the designation of municipal land carries with it the power to transfer said land at any price deemed reasonable by the municipality, even if that price is $0.00, without public bidding.  N.J.S.A. 40A:12A-8(g).  Because Plaintiff’s Complaint does not raise any constitutional questions, the Trial Court properly concluded no enlargement was warranted.  2.  Plaintiff Raises Only Private Dissatisfaction of a Project Near It’s Members’ Properties.
[brief] "At inception the planning board must pass upon basic matters of the highest significance to future community growth and well-being and the welfare of individuals who will ultimately become owners and occupants in the subdivision."  Levin v. Livingston Twp., 35 N.J. 500, 510 (1961).  "For instance, it is of essential importance to determine whether the whole tract proposed to be subdivided is fundamentally suitable for the projected development from the standpoint of area, topography, drainage, soil characteristics, accessibility, availability of utilities and the like, or, if not, in whole or in part, whether and to what extent special conditions can be imposed to make it so."  Ibid.  "[M]atters vital to the public health and welfare, such as drainage . . . [,] must be resolved before preliminary approval is granted, where the Board has not acted in bad faith."  D'Anna v. Planning Bd., Washington, 256 N.J. Super. 78 (App. Div.), certif. denied, 130 N.J. 18 (1992).  "Proper drainage should be resolved before a tentative approval is granted in order to insure a sufficient consideration of the public interest as well as to insulate a developer from any modifications that might seriously affect the economic feasibility of the project.  Planning ⁴ Ia217. derelictions at the local level, ill-conceived plans and insufficient facilities for drainage stemming from the fractionalization and development of lands have spawned horrendous difficulties at the community level."  *Hamlin v. Matarazzo*, 120 N.J. Super. 164, 171 (Law Div. 1972).
[brief] *In the Matter of [...] [...] [...]*, 2014 N.J. CSC LEXIS 373, *47, [...] [...] (March 13, 2014) citing *Clark v. New Jersey Dep't of Agric.*, 1 N.J.A.R. 315 (1980).  See also, *Rivera v. Hudson County Department of Corrections*, 2016 N.J. AGEN LEXIS 869, *38, [...] (August 29, 2016)(“In this type of breach, an employee performs his or her duties, but in a manner that exhibits insufficient quality of performance, inefficiency in the results produced, or untimeliness of performance, such that his or her performance is sub-standard. ”)  In this case, no one testified that [...] did not perform his assigned duties.  As previously argued, [...] admitted that he could not determine what, if anything, [...] had written in the log book.
[brief] Thus, “[w]hen a defendant fails to object to an error or omission at trial, [appellate courts] review for plain error. ”  *State v.* Funderburg, 225 N.J. 66, 79 (2016) (quoting R. 2:10-2).  When applied to jury instructions, “plain error requires demonstration of ‘legal impropriety in the charge prejudicially affecting the substantial rights of defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result. ’”  State v. Belliard, 415 N.J. Super. 51, 66 (App. Div. 2010) (quoting State v. Hock, 54 N.J. 526, 538 (1969)).  A.  It was reasonable for the jury to infer that defendant intended to kill [...] based on the way she used the wine chiller.  The definition of a deadly weapon includes a class of objects that have an ordinary proper use but may become deadly in how it is used.  Thus, it was proper for the jury to be instructed that they could infer that using a five-pound wine chiller to hit someone in the head repeatedly demonstrated an intent to cause death.  Even so, the jury was free to reject the inference.
[brief] Hypothetically, if the defendant had not been charged with and convicted in Essex County of second degree unlawful possession of a firearm but rather second degree aggravated assault while the Morris County burglary and theft charges were pending, would the defendant be barred as a Track One applicant as someone previously convicted of aggravated assault since the Morris County Recovery Court appeal was initiated after that conviction?  According to the defendant’s interpretation of Ancrum, he would be barred under factor a(7) even though that aggravated assault case is no longer pending, due to conviction, by the time the Morris County Recovery Court application was filed.  Ancrum instead bolsters the State’s position.  Even though the defendant had been previously convicted in Essex County before the filing of the Morris County Recovery Court appeal, the fact he possessed a firearm in Essex County while the Morris County case was pending demonstrates he did possess a firearm “at the time of any pending criminal charge. ”  The mere changing of status from “pending” to “closed” of the defendant’s Essex County firearm charges, by way of conviction, does not preclude a finding that the second prong of factor a(5) disqualifies him from Morris County Recovery Court.  Additionally, the language of factor a(5) differs significantly from the language of factor a(7) by the inclusion of the word “any” in the phrase “did not possess a firearm at the time of any pending criminal charge. ”  As this word was not included in factor a(7), this signifies the Legislature intended to cast a broad net to stop those who possess illegal firearms from entry into the Recovery Court program.
[brief] [...] determined that the work performed before and after October 1, 2004, relating to the common law claims were inextricably intertwined with the plaintiffs’ RICO claims.  [...] provided extensive detail regarding the billings, the reasonableness of the billings and the work performed.  Additionally, he provided a comprehensive explanation as to why, even with the Appellate Division’s decision, he concluded that his previous attorneys’ fees award determination of … $6,861,098.00 to [...] should not be disturbed.  ***
[brief] Notwithstanding the provisions of the relevant collective negotiations agreements regarding salary adjustments for promotions, the parties agree that the [...] may effectuate such promotions as it deems necessary from Sergeant to Lieutenant, and/or Lieutenant to Captain with no increase in pay until a salary increase, including rank deferential [sic]and any other increase, is ratified between the [...], the [...] and the [...], or until such salary increases are awarded by an interest arbitrator in accordance with the statutory provisions set forth in N.J.S.A. 34:13A-16, et seq.  All increases shall be retroactive to the date of promotion.
[brief] In Mantilla, the Supreme Court ruled that the three indemnity clauses at issue in the mall owner’s contract did not require, in unequivocal terms, the janitorial service to indemnify the mall owner for a slip-and-fall injury for which the mall owner and the janitorial service were both liable.  167 N.J. at 269-73.  In Englert, the contractor at issue contained two indemnity clauses with different indemnity obligations.  389 N.J. Super. at 47-48.  The inconsistency between the provisions created an ambiguity that rendered the contract unenforceable.  Id. at 57-58.  The Meder court likewise ruled that the two indemnity provisions in the contract at issue rendered the landowners’ indemnity claim against a contractor unenforceable with regard to the landowner’s own negligence.  240 N.J. Super. at 480.  The Appellate Division also rejected the approach that the Law Division used in this case, stating that even if one of the provisions could be interpreted to require indemnity for the landowner’s own negligence, that interpretation failed when the three clauses were read together.  Id. at 479.  Under Meder, the trial court erred in relying on Paragraph 2 to find that the intent of Paragraph 4 was to require [...] to indemnify [...] for the latter’s own negligence.
[brief] Toft v Asset Acceptance, [...] (June 29, 2020)  1, 2, 4  Woo-Padva v Midland Funding, LLC, [...], 2022  N.J. Super. Unpub. LEXIS 96 (January 21, 2022)  23  Valentine v Unifund CCR, LLC et al, [...] (October 4, 2023)  1, 2, 14  Statutes