ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] ”  Id. at 554.  The Supreme Court of Ohio has recognized that the results of standardized field sobriety tests performed without strict compliance with the standard procedure does not provide probable cause for arrest for DWI.  State v. Homan, 732 N.E.2d 952, 955 (2000), mod. as stated in State v. Boczar, 863 N.E.2d 155, 160 (Ohio 2007).  Although the Supreme Court of Ohio subsequently modified the holding to change the standard from strict compliance to substantial compliance, the Supreme Court of Ohio recognized the need for standardization of field sobriety tests in order for the tests to have meaning.
[brief] In Plaintiffs’ Amended Complaint, Paragraph 52 notes that “The Noise Ordinance is *overly inclusive*, overly vague, and fails to specify the activity that it seeks to prohibit. ”  Da42 (emphasis added).  And during the hearing on March 5, 2019, overbreadth was raised by Plaintiffs numerous times, and addressed by Defendants and the trial court. \(^3\) --- \(^3\)  Such examples include:  A.  Noise ordinances cannot regulate conduct until it exceeds the bounds of reasonableness and acceptable behavior.  “[A]n ordinance proscribing conduct which causes loud, disturbing noise is violated when the conduct to which the ordinance is to be applied constitutes a nuisance. ”  State v. Friedman, 304 N.J. Super. 1, 6–7 (App. Div. 1997)(citing State v. Holland, 132 N.J. Super. 17, 25-26 (App. Div. 1975)); see also State v. Clarksburg Inn, 375 N.J. Super. 624, 634 (App. Div. 2005).  The Appellate Division in Holland additionally found that:  From the beginning our cases dealing with nuisances based upon noise have held that the matter is a relative one, requiring the weighing of the competing interests and rights of the parties in each case, and that to constitute a nuisance and a disturbance of the peace a noise must be an unreasonable one in the circumstances or cause material annoyance.
[brief] E.O. 110 confirms that while the Lindbergh items must be made available to the public for “inspection and examination and available for copying[,]” NJSP has an obligation to ensure there is no risk of damage or mutilation.  E.O. 110, Section 2.  [...]’s interest does not tip the scale.  Indeed, [...] specifically required the Superintendent of NJSP to implement procedures to protect the Lindbergh historical items from risk of damage or mutilation to ensure the historical items’ future existence.
[brief] CRIMINAL ACTION Sat Below: The Honorable [...], J.S.C. REPLY BRIEF ON BEHALF OF THE DEFENDANT-APPELLANT TABLE OF CONTENTS  Cover Page.................................................................................................................................i Table of Contents.......................................................................................................................ii Table of Authorities..................................................................................................................iii Preliminary Statement.............................................................................................................1 Legal Argument.......................................................................................................................1 POINT I......................................................................................................................................1  THE ATTENUATION ARGUMENT, NOW RAISED BY THE STATE IN POINT II OF ITS RESPONSE BRIEF FOR THE FIRST TIME, SHOULD BE REJECTED AS IT WAS NOT RAISED BELOW.  POINT II......................................................................................................................................3  SHOULD THE APPELLATE COURT CONSIDER THE STATE’S ATTENUATION ARGUMENT, IT SHOULD BE REJECTED AS IT IS NOT SUPPORTED BY THE CASE LAW.  Conclusion.................................................................................................................................6
[brief] The State argued that [...] said if he was killed in a car, there would be blood everywhere.  I showed him every picture from inside that Toyota Forerunner, every picture that crime scene had taken.  . . .  He looked through all of those pictures.  He said, well, I see red stains, you know, that I’m assuming are blood.  He said looking at all this there’s no way he was stabbed in this car.  He said that.
[brief] Moreover, the passion/provocation manslaughter instruction, if requested and supported by the evidence, must be given “regardless of whether the charge [of passion/provocation] is consistent with the defense. ”  *State v. Carrero*, 229 N.J. 118, 121 (2017) (emphasis added), citing *Brent*, 137 N.J. at 118.  In the Third Circuit, the failure to charge an appropriate lesser-included offense is a violation of the constitutional guarantee of due process.
[brief] (1T 36-21 to 37-13)  Because the Court found that the evidence connecting [...] to the April 20 robbery was weak and tenuous, when weighing the purported relevance of that evidence against the prejudice, the Court concluded that the State was trying to bootstrap the weaker April 20 robbery case by trying it with the April 23 carjacking and joinder would prejudice [...].  (1T 27-15 to 22)  The Court found that even the clearest cautionary or limiting instruction could not cure this prejudice.  (1T 37-19 to 20)  The Court found that the allegation that the Audi Q5 was stolen was not relevant to prove whether [...] was in the Audi Q5 that was used to carjack the Mercedes on April 23 and thus was not admissible; however, the Court found that the evidence on [...]’s phone suggesting he was in possession of an Audi similar to the one used in the carjacking was relevant and the State would be permitted to introduce that evidence.
[directive] 1.  Você entende que em decorrência da sua declaração de culpa por [Sim/Yes]  [Não/No]  Do you understand that because of your plea of guilty to (Indicar o(s) crime(s) violentos de primeiro ou segundo grau sujeitos à Lei NERA) (List First or Second Degree Violent Crime(s) to Which Applies) NERA você será obrigado a cumprir 85% da pena imposta para este(s) crime(s) para ser elegível à liberdade condicional por este(s) crime(s)?
[brief] Conclusions of law are reviewed de novo, without deference given to the motion judge.  *Calco Hotel Management Group, Inc. v. Gike*, 420 N.J.  Super. 495, 503, (App. Div. 2011), *Balsamides v. Protameen Chemicals*, 160 N.J. 352, 372 (1999).  Prior to 1995, summary judgment motions in New Jersey under R. 4:46-1, et seq., were governed by the standard expressed in Judson v. Peoples Bank & Trust Company of Westfield, 17 N.J. 67 (1954).
[brief] D)  The court’s finding of my being creative (with arguing my position of enforcing a settlement agreement) does not warrant sanctions.  I argued in detail why I believed the settlement we reached in mediation should be enforced.  (Pa56 – Pa57).  To summarize those arguments herein, ordinarily verbal settlement agreements are binding.  (I cited *Pascarella v. Bruck*, 190 N.J. Super. 118 (App.Div. 1983), *Green v. John H. Lewis & Co.*, 436 F.2d 389, 390 (3rd.Cir.1971), and *Williams v. Vito*, 65 NJ Super. 225 (Law Div. 2003)).  I also mentioned the exception for court-appointed mediation, where the settlement is not final until the parties sign the mediator's form (I cited *Lehr v. Afflitto*, 382 NJ Super. 376 (App. Div. 2006)).  But since our mediation was done virtually, we could not physically sign anything; instead we would have to wait to go back on the record.  Thus it unfairly created a "cooling off period", where either party could then experience buyer's remorse and want to rescind - and this is exactly what happened in *Willingboro Mall, Ltd. v. 240/242 Franklin Ave., LLC*, 215 NJ 242 (2013), where one party experienced buyer’s remorse only moments after verbally agreeing to the settlement terms.  I argued that due to the uncharted new area of virtual mediation (which in turn was a result of COVID), this may be a matter of first impression.  The trial court rejected this argument, and explicitly found this position to be “creative”.  (1T6:14)  However, "honest and creative advocacy should not be discouraged."  *Iannone v. McHale*, 245 NJ Super. 17, 28 (App.Div. 1990).  Thus my “creative” position / argument certainly did not justify sanctions.
[brief] “A contractual term that rewards a defaulting party by placing it in a better pecuniary position than it would have been had it performed its promise defeats common sense and encourages unreasonable economic waste. ”  Saxon Const. & Mgmt. Corp. v. Masterclean of N. Carolina, Inc., 273 N.J. Super. 231, 238 (App. Div. 1994).  Third, the trial court’s reading of PSA Section 13.1 is also inconsistent with settled canons of construction, which prohibit a reading of a contract that renders one or more of its terms meaningless.  As noted, the trial court adopted Defendants’ disjunctive (“either-or”) interpretation of highlighted language in Section 13.1.  However, the words “in addition to its termination right” dictate a conjunctive (“and”) reading of the remedies clause.  Defendants urge that, once Plaintiff terminated, they owed Plaintiffs no further duties, but the phrase “in addition to its termination right” eviscerates this argument.  In fact, anything but a conjunctive reading reduces the aforementioned “notwithstanding the foregoing” and “in addition to its termination right” phrases to be entirely meaningless, depriving Plaintiff of the benefit of the bargain – a result that is impermissible under settled principles of contract construction.  See cases cited in Plaintiff’s opening brief, at Point II(C).  C.
[brief] Thus, while it was not necessary for [...] to explicitly condition his plea on his right to appeal the suppression motion, he did so anyway.  (Da 54)  5  [...] also pleaded guilty to three violations of probation in exchange for a sentence of time served.  (2T 15-2 to 8; Da 54, 56)  The State agreed to dismiss the remaining counts in the Pharmacy and 7-Eleven cases, as well as a fourth-degree charge in another indictment.  (2T 15-8 to 11; Da 56) the Pharmacy case, concurrent to a 12-year NERA sentence on the 7-Eleven Case.  (2T 16-13 to 24-22; Da 63-70)  [...] appealed from his pretrial rulings, and on April 12, 2019, the Appellate Division affirmed in an unpublished opinion.  [...], 2019 WL 1581430, at *4-9.  The New Jersey Supreme Court subsequently granted certification limited to the suppression issue, and on January 25, 2022, the Supreme Court reversed the denial of [...]’s suppression motion, finding that the police lacked reasonable suspicion to stop the car that [...] was a passenger in and that all evidence found as a result of the stop must be suppressed.
[brief] We do not fault the defense tactic but note that it was the voluntary product of a deliberate choice made during trial.  Assuming, however, that the instruction did direct extra attention to the fact that defendants were in custody because they had decided not to post bail, this information did not have a clear capacity to produce an unjust result.  R. 2:10–2.  [...] takes particular issue with the following portion of the limiting instruction:  It is the procedure of the courts to require defendants standing trial to post bail in order to assure their presence in court on the date of trial.  If a defendant chooses not to post bail, they are transported by the Sheriff's Office to the courtroom in order to assure their appearance.  It is a regular, common, and required procedure for the sheriff's officer to place the defendant's in handcuffs while they're being escorted into the courtroom.  He urges that this instruction effectively “deemed defendant to pose an enhanced risk of non-appearance because he chose not to post-bail” and suggested that “defendant was especially dangerous in that he would rather be in jail than post an amount of money which only served to ensure his appearance at trial. ”  These contentions are unfounded.  First, the trial court made clear that escorting defendants into court in handcuffs was a “regular, common, and required procedure,” that had nothing to do with a particular defendant.  The purpose of the instruction was to remind jurors that any evidence of a defendant being in handcuffs was not to be considered in its finding of guilt or innocence.
[brief] Is that correct?  A. Yes.  Q.  And just to be clear, [...] at this time was approximately six weeks old, correct, when she died?  A. Yes.  Q.  And your son, at that time, was approximately 15 months old.  Is that correct?  A. Yes.  (1T 15-1 to 16-24)  This factual basis was deficient for a number of reasons.  Even though [...] agreed that covering his child’s mouth was reckless, he did not admit to awareness of or consciously disregarding a risk of death, much less a probability that death would result.  (1T 15-1 to 16-15)  See State v. Ruiz, 399 N.J. Super. 86, 98 (App. Div. 2008) (explaining that “[a] jury could find that defendant struck [the child] with his elbow to quiet him down, but did so without any intention or awareness that his actions would probably cause the child’s death” and thereby infer “that although he struck [the child], he did so under circumstances indicative of a “mere possibility of [the child’s] death”).  Instead, [...] affirmatively denied an essential element of the offense – awareness of a substantial risk of death – by saying he only covered the child’s mouth because he mistakenly believed that covering her mouth would not hurt her.  See State v. Gorman, 454 N.J. Super. 343, 348–49 (App. Div. 2018) (finding the defendant did not establish a factual basis for theft by deception because “[c]ontrary to the State’s argument that defendant ‘purposely misled the victims to believe he had the Giants tickets,’ defendant stated that he did not have the tickets when he took the victims’ money and ‘did not know [he] wasn’t getting the tickets until [he] had taken all the money”); see also Urbina, 221 N.J. at 528–30 (explaining that where a defendant suggests he was acting in self-defense, the trial court is obliged to make further inquiry and determine whether the defendant would like to knowingly and voluntarily waive that defense, before accepting the guilty plea).  In addition, because [...] said he only covered the child’s mouth because he believed she would only fall asleep, the factual basis does not demonstrate that he was indifferent to the child’s life or did not care whether she lived or died.  Compare Curtis, 195 N.J. Super. at 366-67 (“Recklessness which must be so extreme as to demonstrate an indifference to human life or is so indifferent to human life that the actor does not care whether the victim lives or dies is a degree of recklessness which is functionally equivalent to a high probability that the actor's conduct would cause the death of [the victim].”).  Finally, [...] never even admitted that he caused [...]’s death by covering her mouth – another missing critical element.  For all of these reasons, the factual basis was insufficient for aggravated manslaughter, and the plea must be vacated.
[brief] TABLE OF CONTENTS  TABLE OF AUTHORITIES ...........................................................................................................  ii  APPENDIX TABLE OF CONTENTS .......................................................................................... v TABLE OF JUDGMENTS, ORDERS AND RULINGS ......................................................  vi  PRELIMINARY STATEMENT .................................................................................................  1 REPLY ARGUMENT ..................................................................................................................  2 POINT I.  FOR THE PURPOSES OF APPEAL, AN ORDER COMPELLING ARBITRATION OF ALL CLAIMS IS A FINAL ORDER .............................................  2 POINT II.  PLAINTIFF HAS CHALLENGED THE VALIDITY OF THE DELEGATION CLAUSE AND ARBITRATION PROVISION BY CHALLENGING THE VALIDITY OF THE CONTRACT  ............................................  4  POINT III.  DEFENDANTS  WAIVED ARBITRATION THROUGH PROLONGED AFFIRMATIVE LITIGATION CONDUCT INCONSISTENT WITH A DESIRE TO ARBITRATE  PLAINTIFF’S CLAIMS  ...............................................................................................................................  8  POINT IV.  DEFENDANTS  WAIVED ANY OPPOSING ARGUMENTS AS TO THE ISSUES OF VOIDNESS UNDER THE NJCFLA AND DISCOVERY INTO ARBITRABILITY BY FAILING TO RESPOND TO POINTS III AND IV OF PLAINTIFF’S OPENING  BRIEF ..................  13  CONCLUSION ..........................................................................................................................
[brief] ”  *Butler v. Acme Mkts., Inc.*, 89 N.J. 270, 283 (1982).  Plaintiffs agreed with [...] that in cases where professional negligence is alleged and where the negligence of an engineer is at issue, an affidavit of merit and expert opinion may be necessary.  However, those cases which require expert opinion deal with “engineering” issues which are beyond the ken of an average juror.  The Plaintiffs have never alleged [...] breached a professional standard of care.  [...]’s purported negligence in this matter was more obvious, and Plaintiffs did not seek to elicit any complex engineering principles.  Just because a claim is asserted against a professional does not mean that an affidavit of merit is required, or that expert opinion is needed, to prevail on a negligence claim where the negligence is readily obvious to a lay person.
[brief] Lack of Clear and Convincing Evidence of Likelihood of Success on Overcoming Constitutional Parental Rights.  The court concluded that the Revised Policy invites state interference with parents’ rights to raise their children “because the Revised Policy actually implies an obligation on school staff to investigate and verify information before disclosure” (p. 19) (Da411).  The court’s conclusion is contrary to the Policy’s express language that it “does not create a duty … for any staff member to investigate, substantiate or validate the issue and/or behaviors giving rise to” the parental notification (Da110).  The court also concluded that “enjoining the Revised Policy would not infringe upon parental rights” because Plaintiffs are “not targeting parental rights per se....” (p. 19) (Da411).  This conclusion ignores that excluding parents from matters affecting their children hinders parents’ exercise of their Constitutional autonomy.
[brief] As it happens, Rule 3:22-4(a)(2) expressly states that where “enforcement of the bar to preclude claims, including one for ineffective assistance of counsel, would result in fundamental injustice,” its objective will be relaxed.  Ibid.  A fundamental injustice occurs “when the judicial system has denied a defendant with fair proceedings leading to a just outcome or when inadvertent errors mistakenly impacted a determination of guilt or otherwise wrought a miscarriage of justice.
[brief] The significance of this cannot be overstated.  [...] admits that its goals were to “enable the Property to be developed with commercial uses to complement the nearly-completed Residential Tract,” (Db11) and the steps it took toward actualizing those goals are not in dispute.  It is bewildering that [...] asserts, in other points of its brief, that the steps it took toward condemnation were somehow negligible or correctable (see Db23-Db26), or that, “[i]n short, condemnation is not imminent. ” (Db13).  Condemnation involves multiple steps, but [...]’s assertion that it is not trying to actually condemn the property should be dismissed outright.
[brief] THE TRIAL COURT’S HOLDING THAT DEFENDANT WAS LAIBLE FOR BREACHING THE COVENANT OF GOOD FAITH AND FAIR DEALING WAS MANIFESTLY UNSUPPORTED BY THE EVIDENTIAL RECORD (36T50-1 to 51-21)  Under New Jersey law, a covenant of good faith and fair dealing (e.g., as alleged in in the Eleventh Count of the Amended Complaint) is implied in every contract.
[brief] …………………………………………………………………………  35  (Raised Below: 7T 7:18-25 through 14:1-7; 37:14-20; 46:2-25 through 52:1-21)  A.  Defendant Unreasonably Rejects Credible And Unrebuted Expert Testimony………………………………………………………………………  35  1.  [...]’s Traffic Testimony.  …………………………………………  39  2.  [...]’ Planning Testimony…………………………………………………  44  3.  [...]’s Testimony On The Three-Dimensional Renderings………  46  B.  Defendant’s Denial Of The Height Variance Is Not Supported By Substantial Credible Evidence In The Record…………………………………
[directive] Investigation of Internal Complaints .........................................................  24 6.1  Time Limitations .................................................................................................................... 24 6.2  Investigation and Adjudication of Minor Complaints ............................................................  26 6.3  Investigation and Adjudication of Serious Complaints .......................................................... 28 6.4  Domestic Violence Incidents Involving Agency Personnel .................................................... 31  7 Internal Affairs Investigation Procedures .................................................. 33 7.1 Interviewing the Complainant and Civilian Witnesses .......................................................... 33 7.2 Reports, Records and Other Documents ............................................................................... 34 7.3
[brief] **[...]’s Case Law is Inapplicable**  [...] relies solely on *Meadowbrook Carting Co. v.  Borough of Island Heights*, 138 N.J. 307 (1994) and its progeny in support of its disqualification of [...]’s Bid.  It is an argument that starts with the false premise that there was something defective in [...]’s Bid, which there is not.  [...] misses: (1) [...] did not fail to submit a Consent of Surety or submitted an ambiguous Consent of Surety; (2) the issue at hand is not about curing or waiving a defect; and (3) these decisions do not require this Court to defer to [...] or provide a “wide berth. ”  *Meadowbrook* involves a contractor who failed to submit a Consent of Surety.  That is not what happened here, as [...] unquestionably did submit a Consent of Surety.  [...] agrees it is required to submit a Consent of Surety – which it did.  [...] concocts an issue by asserting [...]’s Bid without two Powers of Attorney is akin to submitting a bid without a Consent of Surety.  That is not what happened.  *Meadowbrook* is inapplicable.  The same holds true for its progeny.  In *Mayo, Lynch & Associates, Inc. v. Pollack*, 351 N.J. Super. 486 (App. Div. 2002) of bid-rigging, bribery, and racketeering, the contractor submitted a blank bid so that a public official could write in an amount lower than any other bidder.  The contractor did not submit a consent of surety, and its bid bond was also blank.  Then the contractor submitted a consent of surety from a surety that was neither licensed in New Jersey nor listed on the Treasury Circular.  The facts within *Mayo, Lynch* are grossly inapplicable.  In *De Sapio Construction, Inc. v. Township of Clinton*, 276 N.J. Super. 216 (Law. Div. 1994) the letter from the surety did not unequivocally state that the surety would provide the contract bonds if the contractor was low bidder.  The surety’s letter of consent contained qualifications as to the surety’s ability or willingness to provide the contract bonds.  This is not the issue in this case.  [...]’s Consent of Surety unequivocally and without qualifications affirmed that [...] would issue the necessary Contract Bonds if [...] was the low-bidder.