ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Respondents have chosen not to rebut or even acknowledge the “common knowledge doctrine” as an argument in this appeal, despite having ample opportunity to address it in their Opposition Brief.  We could argue that by their silence, Respondents concede the validity of our arguments.  However, we are aware that this Appellate Court is free to address this issue sua sponte and even to hypothetically refuse to consider it as “not raised below. ”  Therefore, to make a complete record, we argue that the “common knowledge doctrine” is an essential element in this case, that the Court should fully consider and address the doctrine, and in fact reinstate Appellants’ case based on the doctrine, despite it not having been raised below in explicit terms.
[brief] ” (4T, at 143:11-15).  From there, Defense counsel openly mocked Plaintiff’s testimony:  We saw him testify during direct examination.  We saw machinations that he was going through.  His testimony, I have to sleep when I do – I have to lay down when I’m doing my work.  I can’t and he had several jobs after this – he was going, ah, ah, ah, I can’t sleep, ah, ah, ah, all related to his back.  Okay.  Hmm.  But he couldn’t sit down in court, but there were several times – or at least two times that he did sit down in court.  Once, before the jury came in and he was talking to his attorney and he was sitting in that chair.  Another time, because I asked him, he was sitting on the bench outside, but yet in here, always standing.  (4T, at 144:14-145:2).  Defense counsel then concluded by reasserting their theme of common sense (4T, at 155:14-18).  In Plaintiff’s closing argument, counsel began by rearticulating their theme of accountability, specifically the notion that although Defendants stipulated liability, they must still be held accountable for the damages they caused (4T, at 156:24-5).
[directive] Office of Trial and Criminal Justice Process.  2.  There is established an Office of Trial and Criminal Justice Process (OTCJP), which shall coordinate and set policy for crime victims as they navigate the criminal justice process in order to enhance access to services.  OTCJP shall advise the New Jersey State Office of Victim Witness Advocacy (SOVWA) and the County Victim Witness Advocates (CVWA) entities operated by each of the 21 county prosecutor offices.  SOVWA shall remain in and under the supervision of the Division of Criminal Justice.  The Office of Victim-Witness Advocacy and CVWAs shall coordinate their functions with OTCJP and be subject to any practices and protocols applicable to the rights of crime victims as may be established by the Attorney General through OTCJP.  OTCJP will set statewide policy, identify best practices and receive reports regarding performance and compliance with policies and rules for both SOVWA and the CWVAs.  OTCJP will also develop policy for witnesses and victims of crime who are not currently served by SOVWA or the CVWAs.  OTCJP will also identify best practices, set policies for informing and empowering crimes victims, advance restorative justice approaches, and coordinate with VIVA’s organizational units regarding services affecting victims in the criminal justice process.  Office of Victim Support and Assistance.
[brief] ALTHOUGH DEFENDANT’S INITIAL PRO SE APPLICATION WAS COUCHED IN TERMS OF INEFFECTIVE ASSISTANCE OF PLEA COUNSEL, ASSIGNED PCR  COUNSEL ABANDONED THAT APPROACH AND INSTEAD ARGUED THAT DEFENDANT WAS INITIALLY THE RECIPIENT OF WHAT AMOUNTED TO AN ILLEGAL SENTENCE UNDER N.J.S.A. 2C:44-5(h), WHICH IN TURN RESULTED IN DEFENDANT BEING SUBJECTED TO AN ILLEGAL EXTENDED TERM SENTENCE UNDER N.J.S.A. 2C:44-3(a).  AT THIS TIME THE ILLEGAL SENTENCES IMPOSED ON BOTH INDICTMENTS MUST BE VACATED AND THE MATTER REMANDED FOR RESENTENCING.
[brief] A.  May I answer?  Q.  Sure.  That's the idea.  A.  Okay.  He never asked me again about money.  He has, at least he had at the time my telephone number.  He never called me.  He never said anything to me about any sums that we still owe him.  After that conversation.  Q.  Do you know if he -- do you have a number that you believe would have been owed [...] if the $10,000 that you paid him was not a complete settlement?
[brief] Plaintiff makes three arguments in opposition to the appeal filed by Defendant [...], Defendant [...], and Defendant [...].  First, Defendants are not entitled to a new trial because the jury’s allocation of fault against Defendant Kline for his negligent operation of the Dish Network van is adequately supported by the evidence.  Second, the trial court below did not abuse its discretion in (1) excluding evidence of [...]’s prior criminal conviction, (2) excluding [...]’s not-to-scale crash diagram, or (3) admitting the audio portion of the police dash cam video.  The trial court properly exercised its discretion in making these evidentiary rulings.  Finally, Defendants are not entitled to a remittitur because the damages award does not shock the judicial conscience.  POINT
[brief] Da - Defendant’s appendix Db - Defendant’s brief.  1T = April 4, 2019 Motion to Suppress transcript.  2T = May 21, 2019  Motion to Suppress transcript.  3T = September 23, 2019  Motion to Suppress transcript.  4T = December 23, 2019  Motion to Suppress transcript.  5T = March 2, 2021  Miranda Motion transcript.  6T = April 5, 2021  Miranda motion transcript April 5, 2021  7T = December 8, 2021  Motion for Reconsideration transcript.  8T = March 15, 2022  Trial transcript.  9T = March 16, 2022  Trial transcript.  10T = March 17, 2022  Trial transcript.  11T = March 21, 2022  Trial transcript.  12T = March 22, 2022  Trial transcript.  13T = March 23, 2022  Trial transcript.  14T = March 24, 2022  Trial transcript.  15T = October 7, 2022  Sentencing transcript.  Pa = State’s Appendix.  PSR = Pre-Sentence Report  COUNTER-STATEMENT OF PROCEDURAL HISTORY
[brief] (Consumer Fraud Act) | 4, 11 | *  Note that the Respondents’ brief cites two (2) unpublished opinions, *Moche v. Levy*, 2016 NJ. Super. Unpub. LEXIS 928, 29 and *D’Agostino v. Appliances Buy Phone, Inc.*, 2016 N.J. Super. Unpub. LEXIS 504 (App. Div. 2016).  Yet they fail to attach either of those unpublished opinions as an appendix to their Respondent brief, which is violation of Rule 1:36-3.  PRELIMINARY STATEMENT
[directive] Parent, Guardian/Caregiver or Designee’s and Juvenile’s Initials:  ___________  ___________  I understand that I have the right to have my matter processed by the Family Court and a request a hearing or a trial.  By agreeing to participate in the stationhouse adjustment program, I am waiving my right to a hearing or trial in this matter, provided that the below terms and conditions are satisfied.  Parent, Guardian/Caregiver or Designee’s and Juvenile’s Initials:  ___________  ___________  I understand that information regarding this incident may be released to any other law enforcement agency, the Family Court, and/or any agency or department connected to the Family Court.  Parent or Guardian/Caregiver or Designee’s and Juvenile’s Initials:  ___________  ___________  I, ______________________________, agree that I will abide by the following terms juvenile’s name and/or conditions of the stationhouse adjustment program: Terms and Conditions  1.  _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________  2.  _______________________________________________________________________ _______________________________________________________________________  Attorney General Guidelines - Stationhouse Adjustments Page 9  _______________________________________________________________________ _______________________________________________________________________  3.  _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________  4.  _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________  5.  _______________________________________________________________________ _______________________________________________________________________ _______________________________________________________________________  Juvenile’s Certification (Read to Juvenile)  I, __________________________________, do hereby certify that I have read this juvenile’s name entire agreement.  I agree to the terms and conditions of this agreement and wish to have the above-captioned offense(s) processed by the stationhouse adjustment program.
[brief] It is sufficient at this stage to make preliminary observations.  Below, Defendant contended that the FDCPA expressly allows debt collectors’ use of telegrams and telephone calls which implies the use of mail vendors.  Defendant overstates the point.  The FDCPA does not prohibit the use of telegrams or telephones so long as the use complies with the FDCPA’s restrictions and the FDCPA contains a few explicit rules governing the use of those regulated utilities.  Moreover, *Khimmat*, 585 F. Supp. 3d at 715, expressly distinguished the FDCPA’s treatment of phone and telegram operators from the use of mail vendors.  Second, Defendant suggested that § 1692c(b) was intended to restrict communications with a consumer’s family, neighbors, friends, and employers.  The legislative history and agency commentary on communications those in close contact with the consumer has nothing to do with the general proscription against third-party communications under § 1692c(b).  Instead, that extrinsic material concerns a different section of the FDCPA, § 1692b, which regulates a debt collector’s communications with those who might have information on how to contact the consumer.
[brief] See Wilson v. Amerada Hess Corp., 168 N.J. 236, 243, (2001); Sons of Thunder v. Borden, Inc., 148 N.J. 396, 420 (1997); Association Group Life, Inc. v. Catholic War Veterans, 61 N.J. 150, 153 (1972).  The implied duty of good faith and fair dealing means that "neither party shall do anything which will have the effect of destroying or injuring the right of the other party to receive the full fruits of the contract; in other words, in every contract there exists an implied covenant of good faith and fair dealing."  Association Group Life, 61 N.J. at 153; see 13 Williston on Contracts § 38:15 (4th ed. 2000) (stating that an implied covenant of good faith and fair dealing means that "neither party will do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract").  In order to succeed on a claim for breach of the covenant of good faith and fair dealing, a plaintiff must plead: (1) a contract exists between the plaintiff and the defendant; (2) the plaintiff performed under the terms of the contract, unless excused; (3) the defendant engaged in conduct, apart from its contractual obligations, without good faith and for the purpose of depriving the plaintiff of the rights and benefits under the contract; and (4) the defendant's conduct caused the plaintiff to suffer injury, damage, loss or harm.  Wade v. Kessler Inst., 343 N.J. Super. 338 (N.J. Super. Ct. App. Div. 2001), aff'd as modified, 172 N.J. 327 (2002).  Plaintiffs sufficiently plead that a contract existed, the CNAs and MOAs, Plaintiffs performed their obligations by working the promoted positions, Defendant engaged in bad faith for purposes of denying contractual benefits, and Plaintiffs suffered damages from unpaid wages.
[brief] Da259-62.  In addition, Appellants were to continue to collect and deposit rent and pay ordinary, necessary and recurring expenses related to the Property; Appellants were required to provide monthly Income Statements to [...]; [...] was required to provide monthly contributions towards the Property’s operating expenses.  *Ibid.*  Such a benefit was reaped by [...] as a direct result of her forum shopping to the Chancery Court over arbitration.  On December 6, 2023, the Parties engaged in mediation with the Hon. [...], J.S.C. (Ret.), but it was unsuccessful.
[brief] This testimony was testimonial hearsay that should not have been admitted.  Hearsay is “a statement, other than one made by the declarant while testifying at the trial, . . . offered in evidence to prove the truth of the matter asserted,” and is inadmissible unless a recognized hearsay exception applies.  N.J.R.E. 801, 802.  Hearsay is testimonial when its primary purpose is to establish facts potentially relevant to later criminal prosecution.  State ex rel. J.A., 195 N.J. 324, 345 (2008).
[brief] The person who served the complaint and summons must submit proof of service in the form of an affidavit.  Rs. 4:4-3(a) and -7.  Proof of service consistent with Rule 4:4-7 governing the Return of Service "raises a presumption that the facts recited therein are true."  Resol. Tr. Corp. v. Associated Gulf Contractors, Inc., 263 N.J.Super. 332, 343 (App. Div. 1993) (quoting Garley v. Waddington, 177 N.J.Super. 173, 180 (App. Div. 1981)); see also Jameson, 363 N.J.Super. at 426 (finding the submission of competent evidence in the form of an affidavit of service showing "compliance with the pertinent service rule" is "prima facie evidence that service was proper").  The presumption can be "rebuted only by clear and convincing evidence that the return is false."  Resol. Tr. Corp., 263 N.J.Super. at 344 (quoting Garley, 177 N.J.Super. at 180-81).  The "uncorroborated testimony of the defendant alone is not sufficient to impeach the return."  Ibid. (quoting Goldfarb v. Roeger, 54 N.J.Super. 85, 90 (App. Div. 1959)).
[brief] ”  *RSI Bank v. Providence Mut. Fire Ins. Co.*, 234 N.J. 459, 478 (2018).  However, when there is “no dispute as to the amount ordered or defendant’s ability to make restitution ... [n]o restitution hearing is required ....”  *State v. Orji*, 277 N.J. Super. 582, 589-90 (App. Div. 1994) (emphasis added).  At the motion hearing to correct the sentence, restitution came up, specifically about the amount in that there had been an error in a minimum fine.  (37T:6-22 to 7-18).  When the amount was clarified, the trial court expressly asked if defense counsel had anything further to add, and defense counsel answered that he did not.  *Ibid.*  Thus, defendant never disputed his restitution amount, nor raised any indication that he had an inability to pay even when expressly asked to place such an argument on the record.  No hearing is thus necessary.
[brief] \(^1\) --- \(^1\)  Much is made by the Appellants about work being done at [...] without appropriate construction permits.  (See, e.g., pages 6-7).  That issue is moot inasmuch as the appropriate permits were eventually obtained and the Borough, which is entity which enforces construction requirements, not only did not bring any complaints against either [...] or [...], but was dismissed from this action and neither the zoning official nor the construction official was called upon to testify.  Indeed, the only Borough official who was called upon to testify was the Police
[brief] (173a [54:16-22]).  [...] sent an email to [...] on May 15, 2019, over a month after the purported closing, telling Matuschat: “Attached per your request is a copy of the Title Commitment and the Affidavit of Title” but that “I don’t believe the second Deed was signed at Closing.  The copy that I have in my file was not prepared correctly”]).  (169a [38:1-23]; 327a).  [...] simply disbursed funds without having an executed deed to its client, the Plaintiff.
[brief] When the State and the defendant enter into --- 6  Again, though it was unnecessary for [...] to explicitly preserve his right to appeal from the suppression decision, his decision to do so underscores the conditional nature of his guilty plea.  a plea agreement, they “reach a meeting of the minds,” and “consideration is present,” i.e., the defendant agrees to plead guilty to certain charges, and the State agrees to recommend a certain disposition.  *Ibid.*  The agreement is based on the information available to both parties at the time the defendant decides to plead guilty.  When a defendant successfully appeals from a pretrial ruling, the defendant is in a different – and better – negotiating position.  The conditional plea rule recognizes this change by permitting the defendant to reevaluate whether he would like to maintain his plea, renegotiate, or go to trial.  *Diloreto*, 362 N.J. at 616.  The conditional plea rule also aligns with the well-established notion that a defendant who pleads guilty based on misinformation should be permitted to withdraw from his plea agreement.  See *State v. Taylor*, 80 N.J. 353, 365 (1979).  When a defendant pleads guilty based on an erroneously decided pretrial ruling, he is essentially pleading guilty based on “misinformation,” as his plea is based on an inaccurate understanding of the State’s leverage against him.  Thus, it would be “manifestly unjust to hold the defendant to his plea” after a successful appeal from a pretrial ruling.
[brief] The information relevant to the [...]’s WQMP consistency determination is actually set forth in N.J.A.C. 7:8-9.2(c) and includes information on the proposed method of wastewater treatment, amount of wastewater flow in gallons per day, and water supply demand for the proposed development.  See N.J.A.C. 7:8-9.2(c).  All of this information was provided to [...] as part of [...]’s HAD application and is, in fact, required to complete the HAD application form.
[brief] (1T 6-1 to 32-11, 6T 6-6 to 20)  The only evidence in this case that inculpated [...] was the fingerprint comparison.  After first moving to exclude any fingerprint expert testimony in its entirety, defense counsel attempted to ensure that this evidence was handled appropriately by the judge, and at every turn counsel was rebuffed.  Fingerprint analysis is a subjective discipline that has errors.  If the expert testimony was to be admitted at all, it had to be carefully managed, which was not done in this case.  The failure to ensure that the jury would be capable of considering evidence of the discipline’s unreliability, to ensure that the examiner did not testify beyond the bounds of reliable science, and the failure to guide the jury’s considering of the weight of the supposed match through an appropriate jury charge violated [...]’s rights to a fair trial and to due process.
[brief] First, a defendant can show that “he was laboring under such a defect of reason, from disease of the mind as to not know the nature and quality of the act he was doing. ”  N.J.S.A. 2C:4-1.  Second, even if the defendant did know the nature and quality of the act, he can still establish legal insanity if, because of “disease of the mind,” “he did not know what he was doing was wrong. ”  Ibid. Singleton, 211 N.J. at 174-75.  [...] testified on direct examination that, to a reasonable degree of psychological certainty, in her professional opinion, defendant was laboring under the mental disease of early onset schizophrenia and was actively in a psychotic state and a dissociative state at the time he killed his family.  (11T24-7 to 22).  [...] concluded that: (1) defendant was “not capable of understanding the nature of his actions” and (2) defendant “did not understand the wrongfulness of his actions. ” (11T24-23 to 25-17, 26-3 to 7, 121-14 to 20).  On cross-examination, the AP questioned [...] about her written report (D-6) in which she concluded only that defendant “was laboring under a defective reason to the extent that he did not know or recognize the nature or quality of his actions,” thus meeting the first prong of the insanity defense.
[brief] One such case is *[...] Corp.*, *supra*.  There, beginning in November 1908, [...] replaced several of the poles that had been erected in the Town and erected additional poles on other streets without authorization from the Town.  Then, in December 1908, the Town notified [...] that it must remove all poles that were erected without the Town’s consent.  [...] declined to remove any of the poles, claiming that consent of the Town was no longer necessary under several laws that had been passed by the Legislature subsequent to the 1892 Agreement.  In March 1909, the Town’s governing body held a meeting and adopted a resolution pursuant to which the Town Clerk advised [...] that it had erected posts and poles on certain public streets in [...] without first obtaining a designation of streets and the manner of placing them from the Town, and the Town Clerk was directed to notify [...] that it must remove the posts and poles by a date certain—and, if they failed to do so, the overseer of the roads for the Town would be directed to remove them.  Upon receiving this notice, [...] initiated a lawsuit against the Town by filing a Complaint in the Court of Chancery to enjoin the Town from removing the poles.  Using the 1898 Act as its basis, the *Court of Chancery held that the 1892 Agreement allows the Town to dictate where new poles are installed on its streets and highways*, except for those poles and lines that existed prior to 1903 (when the Town was incorporated), *as well as what type of poles may be installed.*
[directive] Bail Schedule 2  STATUTES WHERE BAIL MAY BE SET BY A SUPERIOR COURT JUDGE OR A MUNICIPAL COURT JUDGE OR, IN THE MUNICIPAL COURT JUDGE’S ABSENCE, THE MUNICIPAL COURT ADMINISTRATOR OR DEPUTY COURT ADMINISTRATOR, PURSUANT TO RULE 3:26-2 requires warrants  Rule 3:3-1(c)(1) on the Bail Schedule 2 charges of robbery, criminal sexual contact, second degree aggravated assault, aggravated arson, arson, burglary, first or second degree violations of Chapter 35 (drug offenses), any crime involving the possession or use of a firearm, or conspiracies or attempts to commit such crimes.  Rule 3:3-1(c)(2-6) (indictable offenses) and Rule 7:2-2(b)(1-6) delineate factors regarding whether a warrant or summons should issue for other offenses.  Rule 3:26-1 (indictable offenses) and Rule 7:4-1 (non-indictable offenses) delineate factors to be considered when setting bail and provide for the option of R.O.R. bail where appropriate.  Bail  Ranges for attempts or conspiracies should generally be the same as the actual substantive crime.
[brief] ”  U.S. Const. amends.  IV, XIV; N.J. Const. art. I, ¶ 7.  A warrantless stop or search is prima facie invalid unless it falls within one of the specific exceptions to the warrant requirement.  State v. Patino, 83 N.J. 1, 7 (1980).  The State bears the burden of proving by a preponderance of the evidence that a warrantless search or seizure is legal.
[brief] STATEMENT OF FACTS  A.  Introduction  On November 1, 2020, defendant [...] and two friends, [...] and codefendant [...], drove from Georgia to New Jersey in a red Chrysler 300 that Davis rented.  (13T 55-10 to 55-11; 13T 59-14 to 60-9)  Ware and Davis were living in Georgia at the time; Smith was visiting form New Jersey.  (Da 21; 10T 12-12 to 13-11; 10T 61-10 to 61-16)  Ware, originally from New Jersey, had been living in Augusta for several years, where he was pursuing a career in music as a battle rapper.  Ware and Smith knew each other high school, but lost contact with after graduation.  (Da 28; 10T 58-12 to 58-19; 14T 128-2 to 128-17; 14T 129-6 to 129-22)  Ware attended college for one year and then joined the Army; he was honorably discharged in 2012.  He had no prior convictions.  (14T 125-4 to 125-17; 18T 15-17 to 16-4)  Smith spent close to ten years in prison for robbery and violating parole.  (10T 12-12 to 13-11; 10T 56-8 to 57-11)  Smith and Ware reconnected through Facebook after Smith was released from prison in 2019.  (10T 56-8 to 57-1)  Ware and his friends arrived in New Jersey on November 2, 2020, and checked into the [...] in Fords for two nights.