ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] THE TRIAL COURT DID NOT FAIL TO CONSIDER WHETHER THE REVISED LOT GRADE WAS THE RESULT OF “MOUNDING, TERRACING, OR OTHER DEVICES” DESIGNED TO ALLOW INCREASED BUILDING HEIGHT (Pa15-Pa16).  In order to determine whether the Board’s interpretation of the word “designed” in the Building Height Definition was appropriate, the next part of the analysis for the trial court was to determine whether the Board’s factual findings in the application of the Building Height Definition were arbitrary, capricious or unreasonable.  In particular, the trial court first reviewed the Board’s findings that there was no mounding or terracing for the purpose of increasing building height and that the revised grading was for the purpose of stormwater management and infrastructure.  On this point, the trial court stated that the credibility determinations the Board made are entitled to deference because “[e]vidence supporting the Planning Board’s determination was clearly presented at the hearings below. ”  (Pa12.)  A land use board “has the choice of accepting or rejecting the testimony of witnesses, and where reasonably made, such decision is conclusive on appeal. ”  Cox & Koenig, New Jersey Zoning & Land Use Administration, § 18-4.2 (GANN 2022); see also Sea Girt, 45 N.J. at 288; Bd. of Educ. of City of Clifton v. Zoning Bd. of Adjustment of City of Clifton, 409 N.J. Super. 389, 434 (App. Div. 2009).  The record is clear that there was more than enough support for the Board’s, and the trial court’s, finding that [...] and [...] were more credible on the issue of whether there was mounding or terracing and what was the purpose of the revised grading.
[brief] Significantly, this undisputed false entry of discipline was the only entry on the “discipline history summary” which occurred after the Respondent [...] promoted Appellant to Sergeant in 2018.  (AA0131)  [...]’ Certification below improperly compared the Appellant, as a veteran and the first ranked candidate, to the non-veteran appointee [...] (AA0138-141)  Furthermore, in making this comparison, the Undersheriff relied upon Exhibit 5 to his Certification, an evaluation for Appellant which was prepared by a Supervisor who had only been reviewing the work of Appellant for less than three (3) months, as reflected in the evaluation.  Appellant’s full year evaluation for the period October 1, 2020 to October 1, 2021, prepared by the [...] Chief Sheriff Officer, submitted to the Respondent Commission below, awarded her several ratings of “Outstanding” and described her as “one of the agencies most versatile Supervisors” and states “she is well versed in all divisions and does an excellent job. ”  (AA0055; AA0083-85)  In addition to demonstrating that she had no discipline subsequent to her 2018 promotion to Sergeant, the Certification of Appellant submitted below to the Respondent Commission further demonstrated her overwhelming experience and qualifications for this promotion, including her rank as Lieutenant Commander in the United States Navy, her status as a disabled veteran, her training with the [...], being appointed as an Accreditation Manager by the [...], as well as serving as an Acting-Lieutenant on several occasions from 2020-2023.
[brief] Moreover, while the panel indeed found that “the court erred by finding that all of [...]’s and [...]’s claims rested on a common core of operative facts,” [...] entirely ignore the explanatory language immediately following this sentence:  “That finding [i.e., the Special Master’s and the trial court’s finding that all claims rest on a common core of operative facts] ignores the time limitations that apply to the non-RICO and RICO claims.
[brief] The trial court heard argument on the parties’ competing positions as to the applicability of Burt on February 17, 2023, simultaneous with hearing argument on [...]’s Motion for a New Trial.  (22T11, 22T23-22T25)  At that time, [...] requested and received the Court’s leave to submit supplemental briefing and a competing judgment order on this issue.  Id.  Once the Court accepted plaintiffs’ proposed judgment order, over [...]’s objection, [...] timely moved to alter or amend the judgment.
[brief] Plainly, [...] should not have had to engage in the type of analysis conducted by the Law Division in its forty-page opinion to try to ascertain if its coverage was cancelled.  And, courts and parties should not have to engage in years of litigation and wade through hundreds of thousands of pages of documents and days of testimony to determine the propriety of coverage cancellation.  *Harvester Chem., Bauman, Skeete, McClellan, et al.*, all addressed the inadequacy and lack of specificity of notices sent directly by the insurer.
[brief] PROCEDURAL HISTORY AND STATEMENT OF FACTS.......................  1  A. Trial Facts..................................................................................  1  1.  [...] Home Invasion................................................................. 1  2.  [...] Robbery........................................................................... 2  3.  Car Stop.................................................................................... 2  4.  The Plea Deals of the Cooperating Witnesses.............................  3  B.  The First Sentencing......................................................................  4  C. Prior Appellate Proceedings..........................................................  7  D. Re-Sentencing..............................................................................  9  E. Post Re-Sentencing Appellate Proceedings....................................  15 LEGALARGUMENT.............................................................................
[brief] 20th Avenue Realty LLC v. Alessandro Roberto | 477 N.J.Super. 339 ........... 30,31,32,46,47,48,49 (App. Div. 2023) | | Berkeley v. Berkeley Shore Water Co. | 213 N.J.Super.. 21 524, 553 (App. Div. 1986) | | Bron v Weintraub | ............................................. 18  42 N.J. 87, 91-92 (1964) | | BV001 REO v. 53 West Somerset | 467 N.J.Super.117.. 24,26 126-127 (App. Div. 2021) | | Carol L. Baron v. Lisa Youngbroker, et al | 2021 N.J.Super.................................  30
[brief] In this case, after first determining that [...] was a successful claimant entitled to recover attorneys’ fees, the trial court turned to its determination of the amount of the fees that [...] was entitled to recover.  (Pa 52).  The court began its calculation of [...]’s recoverable attorneys’ fees with a discussion of the principles enunciated in Empower our Neighborhoods.  (Pa 53).  The court concluded its discussion stating, “notwithstanding these principles, the Court is given wide discretion to apportion fees in an equitable manner. ”  (Id.)  [...] ultimately concluded that [...] was entitled to recover $511,005 in attorneys’ fees from U.S.  Fire.
[brief] (11T134-5 to 135-3).  The officers told her that they knew she was lying and that she would get arrested and have her baby in jail if she kept lying.  (11T140-13 to 23).  During the trial, [...] said that she lied about [...] being home with her because she feared [...] and [...] and was afraid of being a single mother.  (11T134-16 to 135-5).  The State also presented information they obtained from cell phones they seized.
[brief] ”).  convoluted than the “undifferentiated passel of two hundred documents” held to be improper by the Supreme Court in *Skeete*, 184 N.J. at 9 – especially when juxtaposed against the clear and specific single-page cancellation of the workers compensation policy that [...] itself communicated to the [...].  The inadequacy of [...]’s claimed “notice” is confirmed by the material [...] cites.  It refers **only** to [...]’s August, 2015 work, and says nothing about [...]’s subsequent work, which [...] was unaware that [...] even performed.  (Tb27, Dta875.)  [...]’s letter of September 25, 2015, which advised [...] that it was “CCIP-approved” led [...] to believe it continued to be covered under the CCIP policies, as [...] repeatedly testified.  (Tb24-27.)  Indeed, [...]’s receipt of the September 25 reconfirmation of its initial August enrollment was well within the 90-day notice of cancellation requirement in the [...] policy, expressly rescinding any “notice” that the August communications may have arguably implied.  (At a minimum, even if [...]’s --- 7 [...]’s silence regarding [...]’s testimony is deafening, and its minimization of the import of [...]’s letter is telling.
[brief] The Board Improperly Evaluated the Public Interest at Stake  The Board’s identification of the public interest at stake in [...]’s application is confined to a few sentences on two pages of the Resolution.  [Da133, ¶ 23; Da140, ¶ 42].  It paid no attention to the detailed, specific and critical testimony of [...]’s needs expert, [...] and undertook no analysis of [...]’s voluminous planning testimony that stretched over multiple hearings with numerous exhibits.  It bears mentioning that [...]’s proposed community was not simply a senior housing development.  Instead, it was designed specifically for the frail elderly who need assistance with activities of daily living and, in the case of the memory care component, who are cognitively disabled.  Caselaw established the critical need for senior housing decades ago.
[brief] (1)  For the purpose of giving due notice of the within farm rights to new residents of the municipality, the Planning Board shall require an applicant for every major and minor subdivision, as a condition of approval of such application, to provide every purchaser of a lot within said subdivision with a copy of the ordinance codified in this section; and (2)  Whenever a new major or minor subdivision abuts a farm, as defined herein, or a new major or minor subdivision contains space which was not owned by individual homeowners or a homeowners' association, and said space is at least five acres in size, then the following language shall be inserted in the deed of all lots:  Grantee is hereby noticed that there is presently, or may in the future be, farm use near the described premises from which may emanate noise, odors, dust, and fumes associated with agricultural practices permitted under the "Right to Farm" section of the Municipal Zoning Regulations.  All other portions of this Section shall remain unchanged.
[brief] Thus, this Court’s review of the trial court’s determination below is limited to evaluating the trial court’s legal conclusions de novo and then determining whether the trial clearly abused its discretion in reaching the ultimate outcome.  See Feigenbaum, 402 N.J. Super. at 17; Ocwen, 450 N.J. Super. at 397; N.Y. Mortgage Tr., 466 N.J. Super. at 397.  II.
[brief] A party may request the production of any document within the scope of Rule 26(b), Fed. R. Civ. P. 34(a).  “For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. ”  Id. at 34(b)(2)(B).  The responding party is responsible for all items in “the responding party’s possession, custody, or control. ”  Id. at 34(a)(1).  Actual possession, custody or control is not required.  Rather, “[a] party may be ordered to produce a document in the possession of a non-party entity if that party has a legal right to obtain the document or has control over the entity who is in possession of the document. ”  Soto v. City of Concord, 162 F.R.D. 603, 619 (N.D. Cal. 1995).
[brief] The Trial Court reiterated that there were no witnesses and that any such arguments had to be in Plaintiffs’ papers to give Respondents proper notice:  This is on the papers.  So you had to put it in the papers for it to be arguable in the record.  And to the extent that’s in there, I’ll hear plaintiff point to it, and I’ll consider whether to reconsider.  But for now, and for the record, for purposes of moving forward, I’m barring it because it’s not part of the *Hirth* record, period.
[brief] Here, despite and ignoring its prior findings in granting the 2016 Approval, the Board argues that it justifiably rejected the opinions of Respondents’ experts, specifically Respondents’ planner - the same planner whose testimony it accepted and adopted in granting the 2016 Approval.  Similar to its findings then and especially applicable here, the Board was provided with no evidence that the requested variances will have a detrimental effect on the surrounding area, or that they could not be granted without substantial detriment to the public good and without substantially impairing the intent and purposes of the Township’s identical Master Plan and Zoning Ordinance.  However, the Board’s reasons for its decision, as set forth in its Resolution of Denial, were merely conclusory assertions not supported by any factual evidence or professional opinions, were not based upon substantial, credible evidence in the record, and the Board’s findings were completely impeached by the uncontroverted evidence presented by Respondents during the Zoning Board hearing.
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[brief] (13T 131-10 to 24; 13T 163-16 to 164-7)  When [...] later reported the incident to the NJSP -- which was after he recalled defendant’s name as a suspended trooper (13T 104-24 to 106-1) -- he told [...] that what he saw was a “wallet bifold” containing an ID, and when he was shown the different types of official NJSP ID on cross-examination, he could not say which one he was shown except to say that it said, “New Jersey State Police” and “had a triangle on it. ”  (13T 154-15 to 24; 13T 157-2 to 9)  He agreed that defendant did not say anything about his status as a trooper, but that [...] assumed it from whatever he was shown.  (13T 157-12 to 21)  [...] found defendant to be “cocky and condescending” during the stop, which, he admitted, “had a lot to do with” why he pursued the matter by reporting it to the NJSP.
[brief] A constructive trust is the formula through which the conscience of equity finds expression.  When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.  The *Restatement, Restitution* § 163 at 661 (1937) explains that "[w]here the owner of property transfers it as a result of a mistake of such a character that he is entitled to restitution, the transferee holds the property upon a constructive trust for him."  Section 16 of the *Restatement, Restitution* at 69 recognizes one type of mistake which entitles a person to restitution as:  A person who [***17] has paid money to another because of an erroneous belief induced by a mistake of fact that in so doing he is performing a contract with the other which is not subject to avoidance, is entitled to restitution of the amount so paid if the transaction is voidable by either party because of the mistake and is avoided.  This is in accord with the holding of our Supreme Court that, "[g]enerally all that is required to impose a constructive trust is a finding that there was some wrongful act, usually, though not limited to, fraud, *mistake*, undue influence . . . which has resulted in a transfer of property."
[brief] In denying Defendants’ motion for a new trial, however, the Court recalled being advised that Plaintiff had walked in and out of the courtroom but was not made aware that he had interacted with or in any way attempted to influence any of the prospective jurors.  *Ibid.*  Although Plaintiff provided no certification, affidavit or other statement concerning his actions, opposing the motion, his attorney argued that it was “speculative” that his client did anything other than “just walk down the aisle to stretch his legs …[a]nd [on] some of those trips he went to the bathroom. ”  *Id.*, at 13:1 to 14:1.  On Defendants’ subsequent motion for reconsideration, the adjuster monitoring the case for Defendants’ insurer submitted a certification describing her observations of Plaintiff during voir dire.
[brief] 2.  [...] distorts this Court’s rulings in Haylett v. Baladi, 2010 WL 2346713, and also points to distinctions that are immaterial to its applicability to the facts here in this instant matter.  [...] argues that Haylett v. Baladi, 2010 WL 2346713 is not applicable, arguing that the only reason why Haylett had standing was “because Baladi had written a check in her name”.  However, this Court did not rule that a written check was a prerequisite for standing.  Instead, this Court’s ruling simply noted that the check served as proof/evidence “that Baladi dealt with her”.  Here in this case, my transcript and audio recording is proof that [...] “dealt with me”.  This fact is also admitted to in the Respondent’s brief.  (See Pa40-Pa41; Db4, Db7-Db8)  Moreover, as [...] readily acknowledges, that Baladi check was for a different car.  So if a written check was a requirement for her to have standing, then Haylett would have been deprived of standing as soon as she informed the trial court that the check she received was for a different vehicle.  (See Pra1 and Pra2).
[brief] A sustained attack typically appears unprovoked and is impossible to predict unless the horse has previously attacked in this manner.  [Pa 900, 955-56, 980].  [...] characterized these types of attacks as unrelated to and qualitatively distinct from \(^1\) [...] admitted she has been involved in the oversight of stallion breeding operations services at the [...] for nearly 40 years.  She testified she was aware of only 3 instances in which a stallion attacked a handler during breeding operations in what she calls an “unprovoked” and “sustained” attack, similar to the attack at issue in this case.  [Pa 970-74].  the “everyday” type of aggressive behavior stallions normally exhibit, which though it creates a risk of injury, is usually not sustained.  [Pa 900].  She concluded that, “to a reasonable degree of scientific probability, that all stallions should be considered capable of [a sustained attack similar to the one suffered by [...]], particularly when being managed in a breeding environment. ”  [Pa 900].  In short, Plaintiffs argued before the trial court that every stallion owner is strictly liable under New Jersey law for any injury caused by their stallion in a breeding environment, regardless of that stallion’s particular traits or propensities.  The trial court properly rejected Plaintiffs’ novel claim.
[brief] “OPRA requires a party requesting access to a public record to specifically describe the document sought. ”  New Jersey Partners, L.P. v. County of Middlesex, 379 N.J. Super. 205, 212 (App. Div. 2005).  A “proper request” describes the records being sought “with reasonable clarity. ”  Bent v. Township of Stafford Police Department, 381 N.J. Super. 30, 37 (App. Div. 2005).
[brief] At that time, [...] was wearing blue jeans and a white T-shirt.  Defendant was wearing a black short sleeve T-shirt with a white Nike insignia on the left breast.  (11T:76-3 to 17).  The video of the shooting was played for the jury.  (11T:40-1 to 14).  The parties also stipulated that both guns found at [...] were operable and that all the shell casings, bullets and cartridges found at the crime scenes had been fired from the Smith & Wesson firearm.
[brief] Defendant’s final argument with respect to mitigating factor (11) – imprisonment of the defendant will entail excessive hardship to himself or his dependents – should also be rejected by this Court.  Defendant argues that the “trial court should have considered the support that [defendant] provides for the individuals in his various communities” and that “an extended removal of [defendant] from his support system . . . will certainly have a deleterious effect on his sobriety”.  (Da16-17).  His arguments are, once again, misplaced.  The trial court correctly noted that “[the standard is] not a hardship.  It’s an excessive hardship.  What is presented here in terms of the work he’s doing is not such a hardship that I find it to be excessive, and I don’t find mitigating factor 11 applies. ” (3T22-20 to 24).  For mitigating factor (11) to apply, a defendant must show that he would be suffering a hardship distinct from one suffered by similarly placed defendants.  See Locane, 454 N.J. Super at 129-30 (where this Court questioned the weight given to mitigating factor (11) where the hardship suffered by the defendant’s children was not distinct from those suffered from any other incarcerated defendant’s children).  Defendant stands in no different position than any other individual facing incarceration upon conviction.  Defendant makes absolutely no showing of a distinct hardship in the instant case, and therefore the trial court correctly ruled that mitigating factor (11) did not apply to defendant.  Because the sentencing court properly considered mitigating and aggravating factors under N.J.S.A. 2C:44-1(a) and (b), this Court should affirm defendant’s sentence.
[brief] Plaintiff fails to identify, much less support any possible error in the trial court’s grant of summary judgment based on the New Jersey Tax Sale law.  Further, the Trial Court gave particular consideration of the breach of contract claim based on the Commitment for Title Insurance, and properly found that Plaintiff did not have a viable breach of contract claim since the conditions precedent in the Commitment for Title Insurance were not satisfied, such that a valid, binding, enforceable contract was never formed.  Neither Plaintiff’s new argument on appeal, nor the same argument rejected by the trial court, are availing.  Plaintiff altogether fails to demonstrate any possible error in this aspect of the trial court’s decision.  A.
[brief] On May 6, 2022, the attorney for Plaintiff-Appellant, [...], forwarded correspondence demanding $300,000.00 “to amicably resolve this mater. ” (Da019).  On May 9, 2022, correspondence was sent to counsel for Plaintiff-Appellant, [...], acknowledging receipt of the May 6, 2022 correspondence and requesting additional information.  (Da022).  On May 9, 2022 correspondence was sent to Defendant-Respondent, [...], by Counsel for Plaintiff-Appellant with the requested information.  (Da024).