ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Co. | 270 N.J. Super. 569, 587, 637 A.2d 915 (App. Div.) | | | certif. denied, 136 N.J. 295, 642 A.2d 1004 (1994)  | | Eden v. Conrail | 175 N.J. Super. 263 (App. Div. 1980) | | Flagg v. Essex Cty. Prosecutor | 171 N.J. 561 (2002) | | Gittleman v. Cent. Jersey Bank & Tr. Co. | 103 N.J. Super. 175 (App. Div. 1967), rev’d on other grounds, 52 N.J. 503 (1968)  | | Green v. N.J. Mfrs. Ins. Co. | 160 N.J. 480, 495, 734 A.2d 1147 (1999)  | | Hisenaj v. Kuehner | 194 N.J. 6, 20 (2008) | | Hisenaj v. Kuehner | 387 N.J. Super. 262, 277, 903 A.2d 1068 (App. Div. 2006) | | Masone v. Levine | 382 N.J. Super. 181 (App. Div. 2005) | | Matter of Corbo | 238 N.J. 246 (2019)  | McLean v. Liberty Health System, 430 N.J. Super. 156 (App. Div. 2013)  .........................................................6  Milne v. Goldenberg, 428 N.J. Super. 184 (App. Div. 2012)  ..........................................................1  New Century Financial Services, Inc. v. Oughla, 437 N.J. Super. 299 (App. Div. 2014)  ...........................................................12  Serenity Contracting v. Fort Lee, 306 N.J. Super. 151 (App. Div. 1997)  ............................................................2  St. James AME Dev. Corp. v. City of Jersey City, 403 N.J. Super. 480 (App. Div. 2008)  .............................................................1  State v. Matulewicz, 101 N.J. 27, 29, 499 A.2d 1363 (1985), cert. denied, 557 U.S. 934, 129 S. Ct. 2858, 174 L. Ed. 2d 601 (2009)  ..............................................................................12  State v. Morton, 155 N.J. 383, 453, 715 A.2d 228 (1998) ..........................................................7  State v. Sweet, 195 N.J. 357, 370, 949 A.2d 809 (2008)  ..........................................................12  State v. Torres, 183 N.J. 554 (2005)  .......................................................................................1  Torres v. Sumrein, 2017 N.J. Super. Unpub. LEXIS 3020 ............................................................9  RULES  N.J.R.E.403 ........................................................................................................6, 7 N.J.R.E. 407 ........................................................................................................3, 4, 5, 6, 7, 9, 10  N.J.R.E. 803 .......................................................................................................11  PROCEDURAL HISTORY
[brief] On April 23, 2019, [...] filed an adjudicatory hearing request regarding the [...] Technical Modification Permit.  (Aa349-382).  On March 14, 2023, [...] denied [...]’s request for two separate adjudicatory hearing requests: the 2017 Permit Modification, and the Technical Modification Permit, and forwarded a copy of that decision to [...] and [...].  (Aa132).  In that decision, DEP determined that [...] lacked standing to demand an adjudicatory hearing regarding the initial [...] 2017 Modification Permit and the Technical Modification Permit.  (Aa135).  It rejected [...]’s claim that it had a navigation right entitling [...] to an adjudicatory hearing.
[brief] **THE TRIAL COURT ERRED IN ENTERING RESTRAINTS DESPITE A LACK OF CLEAR AND CONVINCING EVIDENCE OF SUBSTANTIAL AND IMMINENT IRREPARABLE HARM**  (Da393-417)  The burden is on the party seeking injunctive relief to show “irreparable injury … [that is] is substantial and imminent. ….”  *Brown*, 424 N.J. Super. at 183.  The trial court did not find substantial and imminent irreparable harm but only concluded that “irreparable injury may result” (p. 16)  *(Da408)* and “Students may be subject to irreparable harm” if the Revised Policy were enforced because they “may find themselves concerned that personal information regarding sexuality, sexual orientation, transitioning, gender identity or expression … may be disclosed to their parents. ”  (p. 15)  (emphasis added)  *(Da407)*.  The court based its conclusory finding on general studies indicating that: (1) 40% of transgender respondents had neutral or unsupportive families, 10% reported that an immediate family member had been violent towards them and 15% ran away from home or were kicked out of the house; and (2) LGBTQ youth are more likely to be apprehensive about a policy requiring parental disclosure of LGBTQ identification or use of a different name or pronoun (p. 15-16) (Da407-408).  In analyzing irreparable injury, the court concluded that these generalized studies “provided unrefuted evidence of disparate impact” (p. 16) (Da408) -- as opposed to imminent, irreparable harm from the policy.  Moreover, the court’s finding presumes, without proof, that parents who are notified will inflict irreparable harm upon their children thereby prejudging all parents as unfit -- diametrically opposed to the law’s presumption that fit parents act in the best interests of their children.  Troxel, 530 U.S. at 68.  “The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition. ”  Parham, 442 U.S. at 603.  “That some parents may at times be acting against the interests of their children … creates a basis for caution, but is hardly a reason to discard wholesale those pages of human experience that teach that parents generally do act in the child's best interests. ”  Id., at 602–603.  “The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents….”  Santosky v. Kramer, 455 U.S. 745, 753 (1982).
[brief] APPELLANTS DID NOT RAISE THE ISSUE OF DUE PROCESS OR ANY DENIAL OF CONSTITUTIONAL RIGHTS ISSUES BELOW.  A.  Claims of Denial of Due Process Should Not be Considered.  Appellants did not raise any arguments of a denial of due process at the court below.  It is a well-established principle that our appellate courts will not consider questions not properly presented to the trial court when an opportunity for such presentation was available, unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest.  Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234-35 (1973); Krieger v. Jersey City, 27 N.J. 535 (1958); Howard v. Mayor and Bd. of Finance of City of Paterson, 6 N.J. 373 (1951); Morin v. Becker, 6 N.J. 457 (1951); State ex rel. Wm. Eckelmann, Inc., v. Jones, 4 N.J. 207 (1950), rehearing denied 4 N.J. 374 (1950).  Here, Appellants raise, for the first time on appeal, the issue of denial of due process and claims under the Fourteenth Amendment of the United States Constitution and the First Article of the New Jersey Constitution.  Appellants’ arguments should be rejected where the issues were never raised below.
[brief] The Improper Admission Of The Witness’s Confidence Statement Is Harmful Error.  The State concedes that it was improper for [...] to testify to that he “was 100 percent certain” in his identification, and to repeat his extreme confidence in response to the prosecutor’s question, “Is there any doubt in your mind that that person you picked on three was the person that you saw?”  (6T 113-1 to 5, 113-15 to 19; Sb 12-14)  However, the State asserts that this error was harmless beyond a reasonable doubt.  (Sb 12-14)  The State inexplicably claims that “[t]he photo identification was not an essential element of the State’s case” such that “[t]here can be no reasonable doubt that had the photo identification been excluded, the jury would have reached the same conclusion.  (Sb 13)  --- 4  The defense brief in support of its motion for a Wade hearing is submitted because the question of whether an issue was raised below is germane to the appeal.  R. 2:6-1(a)(2).  But without [...]’s testimony that he was absolutely certain that he saw [...] shoot the victim, the prosecutor’s case would have been much, much weaker.  The State would have been left with an unreliable dying declaration, some surveillance video that does not show the shooting, and an identification by a witness who first failed to identify [...] as the shooter, and where there was a real risk that the identification was tainted by unconscious transference — where witnesses “who, prior to an identification procedure, have incidentally but innocently encountered a Defendant may unconsciously transfer a familiar Defendant to the role of a criminal perpetrator in their memory.
[brief] *See State v. Orecchio*, 16 N.J. 125, 129 (1954); *State v. Scher*, 278 N.J. Super. 249, 267-68 (App. Div. 1994), *certif. denied*, 140 N. J. 276 (1995); *cf.* *State v. Bey*, 129 N.J. 557, 625 (1992) (errors committed during penalty phase of capital murder trial, considered both individually and cumulatively, were clearly not capable of affecting the sentence of death).  A review of the entire trial proceedings shows that no other type of error is present on this record and reversal on this ground is unwarranted.  As detailed in POINTS I through IV of the State’s brief, defendant has not raised arguments that require reversal.
[directive] EXAMPLES OF OPEN-ENDED QUESTIONS - CRIMINAL  1.  How do you feel about testimony of law enforcement officers as opposed to testimony by other witnesses who are not law enforcement officers?  For example, do you think a law enforcement officer is more likely, less likely, or as likely to tell the truth as a witness who is not in law enforcement?  What makes you feel the way you do about this?  2.  What do you think about the principle that the defendant on trial is presumed to be innocent and must not be found guilty unless each and every essential element of an offense is proved by the State beyond a reasonable doubt?  Would you have any difficulty follow that principle?  What makes you feel the way you do about this?  3.  What was you reaction when you first heard me explain the nature of the charges against the defendant in this case?  Is there anything about the nature of the charges that will make it difficult for you to consider the evidence, the arguments of the attorneys, and my instructions on the law, with an open mind?  What makes you feel the way you do about this?  4.  Do you have any feelings about the fact that the defendant was arrested and charged with a criminal offense in an indictment?  Do these circumstances cause you to have any preconceived notions about the defendant's guilt?  What makes you feel the way you do about this?  5.  Do you understand that a defendant in a criminal trial does not have to prove his or her innocence, does not have to present any evidence, does not have to testify, and does not even have to be present during the trial if he or she chooses not to be?  How do you feel about these principles of our legal system?  Will you be able to abide by them in deciding this case?  6.  Do you believe the criminal justice system is fair and effective?  Please explain.  7.  How do you feel about the so-called war on drugs?  For example, do you think the amount of resources the government devotes to enforcing the criminal drug laws and prosecuting suspected offenders is too much, not enough, or about right?  Do you think resources could be more effectively used in other ways to address the drug problem?  Why do you feel this way?  8.  How do you feel about gun control laws?  9.  Do you believe that you will make a good juror for this case?  Please explain.  Directive # 4-07
[brief] 19T – Mar. 5, 2020 (Jury Sel. vol. 1)  20T – Mar. 5, 2020 (Jury Sel. vol. 2)  21T – Mar. 5, 2020 (Miranda)  22T – Mar. 10, 2020 (Jury Selection)  23T – Mar. 10, 2020 (Mot. Tattoos)
[brief] [...]’s protected complaints began on May 21, 2012 when [...] made a formal complaint that his supervisor, [...], was creating a hostile work environment.  (Pa323).  After an investigation, the [...] agreed and in its letter to [...] dated July 26, 2012, the [...] stated that [...] “did create a hostile environment” and “engaged in conduct unbecoming a public employee. ”  (Pa329).  Unfortunately, the [...] failed to protect [...] from further retaliation which is synopsized below.
[brief] In its Appellate Brief the [...] argues that:  "Although this history is both long and complex, the underlying legal principle of any land conveyance is the same principle that applies to any contract interpretation- to determine and to give effect to the intention of the parties."  (Db 22).  The [...] then goes to great lengths to cite examples of how the [...] acted and a defunct corporation – [...] – did not act to purportedly establish the “intent” of the “land conveyance” to the [...].  The problem with this position is two-fold: (1) the [...] did not acquire title through a bargained for sale and contract/arm’s length transaction but rather obtained the property through an in-rem tax foreclosure; and (2) the clearest intent of what property the [...] acquired is what was conveyed from [...] to [...] by Deed dated April 8, 1920.  (J- 5, Pa923)  That Deed did not convey the Riparian Grant acquired by [...], being the substantial majority of Lot 3.01.
[brief] Id.  In a brief opinion, the trial court ([...], J.S.C.) denied both motions.  Da156a.  [...] filed a Motion for Reconsideration of the decision and [...] filed a limited Cross-Motion for Reconsideration, requesting that the trial court declare that the Mold Exclusions barred coverage unless the Consumption Exception applied.  Da937a; Da943a.  In October 2019, the trial court denied [...]’s Motion for Reconsideration and granted [...]’s Cross-Motion.  Da154a.  In a 33-page opinion, the trial court rejected [...]’s reliance on Appleman’s rule and held that the Mold Exclusion barred coverage to [...] for the Underlying Action unless the Consumption Exception restored coverage.
[brief] 49  ## TABLE OF AUTHORITIES  ###  Case Law  **Armstrong v. Manzo,** 380 U.S. 545, 550 (1965).........................................................  36  **Blair v. Vetrano,** 12 N.J.Misc. 462 (Sup.Ct.1934)..............................................  37  **Berger v. Paterson Veterans Taxi,** 244 N.J. Super. 200, 204-05 (App. Div. 1990).......................... 43 **Blocker, LLC v. 53 W. Somerset St. Props., LLC,** 467 N.J.Super. 117, 125 (App Div. 2021)............................... 33 **Bucholz v. Hutton,** 153 F. Supp. 62 (D.C. Mont. 1957)........................................... 43 **Driscoll v. Burlington-Bristol Bridge Co.,** 8 N.J. 433 , 493, 86 A.2d 201 (1952), cert. den., 344 U.S. 838, 73 S.Ct. 25, 97 L.Ed. 652 (1952).................................................................... 42, 43 **Federal Title, c., Guaranty Co. v. Lowenstein,** 113 N.J. Eq. 200, 209 (N.J. 1933)............................................. 49, 50 **Fistel v. Christman,** 13 F.R.D. 245 (D.C.W.D. Pa. 1952).......................................... 41 **Garley v. Waddington,** 177 N.J.Super. 173, 180 (App. Div. 1981)............................... 34, 35, 36 **Goldfarb v. Roeger,** 54 N.J.Super. 85, 90 (App. Div. 1959).................................... 35, 36
[brief] After passing two iterations of amendments to the statute, once on April 14, 2020, and again on June 29, 2020, the Legislature failed to create or imply a remedy for private contractors who believed the school district was not complying with the statute. \(^{38}\)  Also, providing for a remedy under *N.J.S.A.* 18A:7F-9(e)(3) was unnecessary because any private party could petition the Commissioner of Education for relief from a violation of the school laws under 18A statutes.  Consistent with the precedent, since no remedy exists, there can be no private right to a cause of action.
[brief] A.  [...] Has Standing To Challenge The Warrantless Stop Of [...]’s Car Because He Has A Participatory Interest In The Narcotics Seized.  The trial court erred in ruling that [...] lacked standing to challenge the warrantless stop of [...]’s car.  (4T 8-7 to 9-10)  The court concluded that because [...] was not charged with possessing the narcotics seized from [...]’s car during the stop, he lacked a sufficient connection to that evidence for standing purposes.  (4T 9-3 to 10)  In so doing, the court failed to consider whether [...] has a participatory interest in the evidence seized in light of its relationship to the underlying criminal activity being investigated: the delivery and distribution of heroin to and from [...]’s storage unit.  Because [...] plainly has a participatory interest in the seized evidence, the court’s ruling must be reversed.
[brief] With this in mind, plaintiff alleges that the defendant’s conduct here rose to the same level as in those cases and that had the trial court properly considered the totality of the facts here in a light most favorable to plaintiff, it would have found that reasonable jurors could conclude that the defendant conducted constituted an intentional wrong.  However, we submit that there is nothing about the defendant’s conduct from the totality facts contained in the record which would allow anyone to conclude that the defendant committed an intensional wrong within the meaning of N.J.S.A. 34:15-8.  Indeed, there is nothing in this record by which reasonable jurors could conclude that the defendant knew of any dangerous condition in its parking lot, or that if it did, the defendant knew it was substantially certain that a non-management employee would be injured or killed by being compelled to park in a designated area of the lot which may have had less pedestrian safeguards than other areas of the lot.
[brief] She had filed within the system a request for a meeting with him and he said he never got (1T; 142:9).  She confronted him to indicate that she never said what he said she said (1T; 142:16).  And he said, “I thought you said that” (1T; 142:17).  Then, he said, “I don't know what’s going on between you and the captain but I’m trying to stay out of the middle of it” (1T; 142:21).  He apologized for not training her (1T; 143:1).  He actually said, “I'm tired of being in the middle” (1T; 143:10).  What he put into the evaluation was “a lie” (1T; 143:22).  He admitted, “I should have been there more to train you” (1T; 144:8).  He told her that he “didn’t want to be in the middle so he decided that basically not be there to train me and he apologized” for not training her (1T; 144:17).  Plaintiff confronted him about the MAPPS entry, and he never discussed it with her, and the MAPPS entry was done way after the fact (1T; 145:6).  LEGAL ARGUMENT POINT I
[brief] ”  Butler, supra, 89 N.J. at 275-276; see also NJ Model Jury Charge 5.20F, Duty Owed – Conditions of Premises.  The Supreme Court added, “[n]egligence is tested by whether the reasonably prudent person at the time and place should recognize and foresee an unreasonable risk or likelihood of harm or danger to others. ”  *Ibid.*  “The duty of due care requires a business owner to discover and eliminate dangerous conditions, to maintain the premises in safe condition, and to avoid creating conditions that would render the premises unsafe.  *Nisivoccia v. Glass Gardens, Inc.*, 175 N.J. 559, 563 (2003) (internal citations omitted).  Additionally, “[o]rdinarily an injured plaintiff asserting a breach of that duty must prove, as an element of the cause of action, that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident. ”  *Ibid.* citing *Brown v. Racquet Club of Bricktown*, 95 N.J. 280, 291 (1984).  Thus, Plaintiffs must demonstrate that there was a dangerous condition and that [...] had actual or constructive notice of the allegedly dangerous condition in order to prevail.
[brief] . . .”  See Compl. ¶¶ 34-38 (Pa7-Pa8).  They later sued [...] on the void debt.  See Compl. ¶ 55 (Pa10).  On April 23, 2020, [...] initiated a lawsuit against Defendants in the United States District Court for the District of New Jersey; however, due to changes in Article III standing jurisprudence the District Court dismissed [...]’s Complaint without prejudice on January 3, 2023.  See Compl. ¶¶ 18-20 (Pa4-Pa5); see also [...] v. [...], [...], 2023 U.S. Dist. LEXIS 200, at *12 (D.N.J. Jan. 3, 2023) (Pa129) (“[...] 2”).
[brief] Monmouth County, New Jersey, Denial of Replacement Walkways | 20a | | Exhibit 2: | Resolution Number: [...] – Dated: March 3, 2022 Resolution of the Zoning Board of Adjustment of the [...] Denying Applicant’s Appeal of the Decision of the Historic Preservation Commission | 24a | ### [...] Land Development Ordinance | Section | Page | |-------------------------------------------------------------------------|------| | 200 Word Usage | 29a | | 201 Definitions | 29a | | 413.02 Flared Open Space Areas | 52a | | 508 Historic Preservation Design Guidelines | 53a | | 603 Powers of the Zoning Board of Adjustment | 55a | | 604 Establishment of the Historic Preservation Commission | 56a | | 605 Powers and Responsibilities of the Historic Preservation Commission | 58a | | 706 Appeals and Applications to the Zoning Board of Adjustment | 61a | | 900 Application Procedure in Historic Zone Districts and for Designated Historic Sites | 63a | | 902 Application for Certificate of Appropriateness | 64a | PROCEDURAL HISTORY On March 15, 2019, the [...] swore out the following [...] Complaints against plaintiff-appellant (Municipal Court defendant below)
[brief] Nester v. O'Donnell, 301 N.J. Super. 198, 210, 693 A.2d 1214 (App. Div. 1997).  A contract is ambiguous if it is reasonably susceptible to two interpretations.  Potomac Ins. Co. of Illinois ex rel. OneBeacon Ins. Co. v. Pennsylvania Mfrs. Ass’n Ins. Co., 425 N.J. Super. 305, 324, 41 A.3d 586 (App. Div. 2012).  Contract terms must be given their plain and ordinary meaning.  *Nester*, 301 N.J. Super at 210, 693 A.2d 1214.  Courts should not “torture the language of a contract to create ambiguity. ”  *Stiefel v. Bayly, Martin & Fay, Inc.*, 242 N.J. Super. 643, 651, 577 A.2d 1303 (App. Div. 1990).  *Sullivan ex rel. Sylvester L. Sullivan Grantor Retained Income Tr. v. Max Spann Real Est. & Auction Co.*, 465 N.J. Super 243, 265-266 (App, Div. 2020), aff’d as modified, 251 N.J. 45 (2022).
[brief] As the transcript of Defendant’s Wade hearing indicates, the state of the law was in flux and confusion arose as to which procedures were applicable.  4T.  Although not foreclosing the possibility of expert testimony, the Henderson Court deferred the question for case-by-case determination at trial.  Henderson, at 298 (“We leave to the trial court the decision whether to allow expert testimony in an individual case. ”).  Defense counsel’s decision not to call an expert appropriately reflected the state of the law at the time of the case and was a logical course of action given the way such issues at that time were adjudicated.  Defendant merely claims that an identification expert would have strengthened the jury’s understanding of the type of evidence offered.  Such a claim falls short of the requirement for a prima facie case of ineffectiveness, particularly given the declination to call an identification expert constitutes a strategic decision by trial counsel.