ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The Court Erred as a Matter of Law When It Found No Suspicious Circumstances Were Present (P34a)  "Undue influence" has been defined as a mental, moral, or physical exertion of a kind and quality that destroys the free will of the testator by preventing that person from following the dictates of his or her own mind as it relates to the disposition of assets...."  In re Estate of Folcher, 224 N.J. 496, 512 (2016).  Undue influence is exerted where there is importunity which cannot be resisted and is yielded for the sake of peace.  In re Weeks, 29 N.J. Super. 533 (App. Div. 1954) citing Trumbull v. Gibbons, 22 N.J.L. 117, 136, 158 (Sup Ct. 1849).  The influence must be such that, instead of following the dictates of his own mind, the testator accepts instead the domination and influence of a person he is unable to resist or overcome.  See Pascale v. Pascale, 113 N.J. 20, 30 (1988).  The clarifying test is whether the testator's mind, when he made the will, was such that, had he expressed it, he would have said: "This is not my wish, but I must do it."  In re Weeks, 29 N.J. Super. 533 (1954), citing Wingrove v. Wingrove, 11 P.D. 81 (High Court 1885).  Two elements are required to raise a presumption of undue influence.  First, there must be a "confidential relationship" between the testator and the beneficiary.
[brief] Defendant first argues that the sentencing judge improperly engaged in double-counting when he found aggravating factors because he considered the fact that defendant pointed a gun at another person and pulled the trigger.  This is a misreading of the judge’s comments.  [...] appropriately discussed the facts of the case, including defendant’s actions, in explaining why he believed defendant posed a risk of reoffending.  As he correctly explained, “part of that is defined by the interactions and the description of how things happened in this case. ” (18T78-11 to 13).  [...] explained that:  So when I talk about risk, I do so from the assessment of what I saw during trial, what I know about the interactions here and, let’s face it.  And the gravity of the action.  Anyone who’s ever fired a handgun has some idea of how much power that actually is.  And to point a gun in the direction of anybody and pull the trigger requires more than youthful exuberance.  It requires a level of something that not everybody has.  I would dare to say, most people don’t.  * * *  You have to be a certain kind of person to do that and it’s not a function of youth.  . . .  So it’s not an indictment of you personally, it’s an assessment of risk and when a person can reach that point that they can do that, they can reach that point again.  [(18T78-22 to 79-21). ]
[brief] Rb28 (citing U.S. ex rel. Integra Med Analytics LLC v. Providence Health & Servs., No. CV 17-1694 PSG (SSx), 2019 WL 3282619, at *4, *16 (C.D. Cal. July 16, 2019)).  Once again, Relator is making a legal argument about the standards for determining what counts as “news media,” and that argument fails in light of the great weight of federal authority broadly construing news media without regard to the Integra Med factors.  Integra Med, 2019 WL 3282619, at *11.  Relator says nothing about the wide array of federal authority, cited in Defendants’ brief, recognizing that “news media” includes sources whose primary purpose is to widely disseminate information to the public, including online searchable databases, an online crowd-sourced encyclopedia, and government websites.  See Ab38–39, Ab42–44; see also U.S. ex rel. Berkley v. Ocean State, LLC, C.A. No. 20-538-JJM-PAS, 2023 WL 3203641, at *4 (D.R.I. May 2, 2023) (rejecting the “multilayered analysis of what constitutes ‘news media’ in the Integra case [as] unconvincing”).  It is true that, in reliance on state-specific authority, two state decisions have departed from the approach of the Massachusetts Supreme Court and the weight of federal authority and concluded that [...] is not “news media.
[brief] As stated in SL Industries at 212:  “Assuming the wrongdoer subjectively intends or expects to cause some sort of injury, that intent will generally preclude coverage.  If there is evidence that the extent of the injuries was improbable, however, then the court must inquire as to whether the insured subjectively intended or expected to cause that injury.  Lacking that intent, the injury was ‘accidental’ and coverage will be provided.
[brief] (3T 155-7 to 158-21)  [...] testified that the gun was loaded with hollow-point ammunition.  (3T 169-12 to 14)  [...] did not use any gloves when handling the gun.  (3T 165-5 to 166-2, 173-3 to 177-9)  His MVR was played for the jury and admitted into evidence.  (3T 166-3 to 169-21; Da 21)  The officers admitted that there was no evidence aside from what happened on the MVR linking [...] to the gun.  (2T 140-5 to 143-16; 3T 178-13 to 179-13)  The gun was tested for [...]’s fingerprints and DNA, and neither was found.  (2T 143-5 to 16)  [...] never made any statements regarding the gun, his cell phone was never searched, and there were no third-party statements connecting him to the gun.  (2T 140-5 to 143-4; 3T 178-13 to 179-13)  The State also called [...], a detective with the [...], who authored a report about the gun found in the Suburban.
[brief] See also, N.J.R.E. 901 (to authenticate evidence the proponent must present evidence that supports a finding that the item is what its proponent claims).  Here, [...] testified that she last observed [...]’s signature when she worked in a law firm, between 1976 to 2001 but could not remember the year.  (10T12:19-22; 10T22:17-23).  During her deposition, [...] was given four signatures on exhibits that she stated were not the signatures of [...].(P357a, P359a, P363a, P367a).  At trial, [...] compared the same signatures from the deposition exhibits against the recorded documents from which the signatures of [...] came, and she acknowledged that they matched, they “looked the same. ” (10T29:6 to 31:15; 10T 27:16-26; P357 to P372a).  [...] was wrong about [...]’s signature on four separate occasions during her deposition, confirming she lacked familiarity with that signature to authenticate it.  The Court’s finding to the contrary disregards the undisputed facts which was obviously due to her bias in favor of a co-worker.
[brief] \(^3\)  Those factors are: (I) the type of record requested; (2) the information it does or might contain; (3) the potential for harm in any subsequent nonconsensual disclosure; (4) the injury from disclosure to the relationship in which the record was generated; (5) the adequacy of safeguards to prevent unauthorized disclosure; (6) the degree of need for access; and (7) whether there is an express statutory mandate, articulated public policy, or other recognized public interest militating toward access.
[brief] Moreover, the motion court’s enforcement of the express terms of the parties’ stipulated remedies clause is consistent with settled New Jersey law.  “Sophisticated parties acting under the advice of counsel often negotiate stipulated damages clauses to avoid the cost and uncertainty of litigation.  Such parties can be better situated than courts to provide a fair and efficient remedy. ”  Wasserman’s Inc. v. Twp. of Middletown, 137 N.J. 238, 253 (1994).  Under settled New Jersey law, by demanding the recovery of its deposit, Plaintiff made an irrevocable election to terminate the contract.
[brief] Applying current rates at the time the fee application to account for that risk and the delay in collection caused by Defendants’ conduct was fully equitable.  [...]’s contention that current rates should not be used is supported solely with a citation to an unpublished Appellate Division case from 2012 (Db32) and is simply incorrect.  Rendine has been applied, when appropriate, in many contexts other than civil rights.  See, e.g., New Jerseyans for Death Penalty Moratorium v. New Jersey Dep’t of Corr., 185 N.J. 137, 157 (2005) (providing for fee enhancement in an OPRA matter and explaining “unusual circumstances” may justify fee enhancement where, for example, “the attorney did not receive a fee from his client,” “the risk of failure was high,” and “the attorney achieved an excellent result” with “exemplary competence and commitment. ”); JHC Indus. Servs., LLC v. Centurion Cos., Inc., 469 N.J. Super. 306, 316, n.5 (App. Div. 2021) (remanding to determine if an increased award should have been made where defendants’ conduct increased fees and directing that Rendine’s current-rate rule be applied on remand).
[brief] JUROR 12 SHOULD HAVE BEEN DISMISSED BECAUSE SHE AND HER HUSBAND KNEW THE VICTIM’S FAMILY, A STATE’S WITNESS, AND THE CHIEF OF POLICE OF THE [...], AND BECAUSE SHE RECEIVED INFORMATION ABOUT THE CASE FROM HER HUSBAND.  (Not Raised Below)  ...........................................25  TABLE OF CONTENTS (cont'd)  POINT III
[brief] ..................  19  Shark River Cleanup Coalition v. Twp. Of Wall, 47 4th 126 (3d Cir. 2022) ...........................................  19, 20  State ex rel. Wm. Eckelmann, Inc. v. Jones, 4 N.J. 207 (1950), rehearing denied 4 N.J. 374 (1950).  ...............  27  RULES OF PROFESSIONAL CONDUCT RPC 1.9 ............................................. 1, 4, 5, 7, 12, 13, 14, 15, 17, 18, 19, 20, 21 RPC 1.10
[brief] Indeed, over multiple pages of their brief Appellants address the basic standards governing motions to dismiss under Rule 4:6-2(e) and when such a motion is to be treated as a motion for summary judgment [Pb21-25].  The Appellants contend that the presentation of materials outside the Complaint required [...]’s motion to be treated as one for summary judgment, relying on Rule 4:6-2, which provides that “[i]f, on a motion to dismiss based on defense (e) [failure to state a claim upon which relief can be granted], matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided by R. 4:46…”  Although consideration of matters outside the pleadings may result in a motion to dismiss for failure to state a claim becoming a summary judgment motion, New Jersey’s Supreme Court has nonetheless made clear that “[i]n evaluating motions to dismiss, courts consider ‘allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim. ’”  Banco Popular N. Am., supra, 184 N.J. at 183 (quoting, Lum v. Bank of Am., 361 F.3d 217, 221 n.3 (3d Cir. 2004)).  “‘The purpose of this rule is to avoid the situation where a plaintiff with a legally deficient claim that is based on a particular document can avoid dismissal of that claim by failing to attach the relied upon document. ’”  Lerner, supra, 2019 N.J. Super. Unpub. LEXIS, at * 7 (quoting, Lum, supra, 361 F.3d at 221 n.3).  Accordingly, “in reviewing a motion under Rule 4:6-2(e), a court may consider documents referred to in the complaint, matters of public record, or documents explicitly relied on in the complaint, without converting the motion to dismiss into one for summary judgment.
[brief] Ordinarily for quasi-judicial or rule-making final agency action, there is a substantial body of material comprising the record.  In appeals from final agency action outside of such settings, there similarly must be a sufficiently developed record to permit a reviewing court to engage in meaningful review.  See In re Issuance of Permit by DEP, 120 N.J. 164, 173 (1990) (relying on State v. Atley, 157 N.J. Super. 157, 163 (App. Div. 1978)) (noting necessity of agency fact-finding to facilitate appellate review).
[brief] But even if defendant’s interpretation were correct, [...] did nothing improper because he did in fact attribute some mitigating weight to the first factor.  In analyzing Miller, the judge stated:  I don’t find that there was a great deal of failure to appreciate the consequences.  Maybe there was some.  Maybe there was some....  So there is some aspect of that lack of consideration of what happens if I get caught.  Okay.  I can see that with both of these individuals.  [5T81:3-15.]  The above statement makes clear that the judge accorded weight to defendant’s age.  Defendant complains that the judge found his crime not to be the result of impetuousness, but that finding is proper and supported by the record.
[brief] \textbf{The Motion for Reconsideration.}  On February 13, 2023, defendant, after acquiring new counsel, moved for reconsideration of the denial of his suppression motion, for which Judge \textsuperscript{11}  In fact, at the reconsideration hearing on May 11, 2023, the prosecutor stated that she thought the unmarked door to the third floor was closed and the police opened it.  (4T39-11 to 19).  [...] heard argument on May 11, 2023.  (Da8; Da10; 4T).  In urging for reconsideration, defense counsel inaccurately represented that the door to the third floor was “on the far right of the house. ”\(^{12}\) (4T41-25 to 42-24).  (This is factually inaccurate, as shown by the photographic and video evidence of the building’s structure.  See (Rb7 to 8)).
[brief] ”  *State v. Willis*, 225 N.J. 85, 97 (2016) (internal quotation marks and citation omitted); see also State v. Blakney, 189 N.J. 88, 93 (2006) (noting “the danger that other-crimes evidence may indelibly brand the defendant as a bad person and blind the jury from a careful consideration of the elements of the charged offense”).  When such prejudicial evidence is admitted at trial, the jury charge must be precisely worded to explicitly tell the jury that “the proper use of such evidence is to prove a relevant issue in dispute and not to impugn the character of the defendant. ”  Blakney, 189 N.J. at 92; see also State v. G.S., 145 N.J. 460, 472 (1996) (“On admission of other-crime evidence, the court must not only caution against a consideration of that evidence for improper purposes, it must through specific instruction direct and focus the jury’s attention on the permissible purposes for which the evidence is to be considered. ”).  The instruction “must include . . . ‘sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere.
[directive] See seek preventive not to decision detained; presumption that the defendant will be established a Legislature has the cases where ordinary murder or otherwise are subject to an with are charged defendants where that is, cases N.J.S.A. 2A:162-19(b).  imprisonment.  See of life term or extended flexible where Directive establishes a more situations this with category deals third  The designated detention unless a supervisory prosecutor pretrial will seek State presumption that the maximum Division of Criminal Justice finds that of the or Director Prosecutor County by the where the by defendant's release, or control the risks posed adequately will of release conditions pretrial of justice would not be served by interests that the determines supervisor otherwise where third category applies to cases 7.4.2.b, and 7.4.3.
[brief] The Disciplinary Action Complaint**  On December 9, 2013, the OAE filed a complaint against [...] in the Supreme Court of New Jersey, see *OAE v. Richard D. [...], Esq.*, Docket No. [...] (the “Disciplinary Action”) [Pa463a, ¶ 2], which is captioned “Disciplinary Action COMPLAINT” (the “Disciplinary Action Complaint”).  [Pa332a]  Count One of the Disciplinary Action Complaint alleged that [...] made false statements of material fact to disciplinary authorities in violation of RPC 8.1(a), and engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation in violation of RPC 8.4(c).  [Pa333a-337a]  Count Two asserted that [...] commingled funds in violation of RPC 1.15(a), failed to deposit earned fees into the business account in violation of R. 1:21-6(a)(2) and RPC 1.15(d), and left inactive balances in the trust account in violation of R. 1:21-6(d) and RPC 1.15(b) and (d).  [Pa338a-340a]  C.
[brief] Here, there is no dispute that the continuous water intrusion into [...]’s condominium resulting from the insured’s negligence and its violation of New Jersey’s Condominium Act was a covered cause of loss.  [...] cites this Court’s unpublished opinion in Sherwood v. Kelido, Inc., 2009 WL 1010988 (App. Div. Apr. 15, 2009) as the “only” New Jersey case to consider Appleman’s Rule in connection with CGL coverage.
[brief] ”); see also Stoeckel v. Twp. of Knowlton, 387 N.J. Super. 1, 22 (App. Div. 2006) (finding July 1, 1994 amendments to N.J.S.A. 59:8-8 and -9 abrogated earlier court decision that six-year statute of limitations applied to malpractice claims against publicly employed attorneys); see also Michaels v. State, 955 F. Supp. 315, 326 (D.N.J. 1996) (“Because the [...] is a public entity within the meaning of the New Jersey Tort Claims Act, however, all of plaintiff's state law claims asserted against it, including plaintiff's malicious prosecution claim, are subject to the Act's two-year statute of limitations, N.J.S.A. 59:8–8(b).”).  The legislative enactment of N.J.S.A. 59:8-8(b) is significant.  To the extent that any conflict exists between N.J.S.A. 59:8–8(b) and Earl, our Supreme Court has recognized that the duly enacted legislation controls.  See Farmers Mut. Fire Ins. Co. of Salem v. New Jersey Prop.-Liab. Ins. Guar. Ass'n, 215 N.J. 522, 545 (2013) ("Legislative enactments are never subservient to the common law when the two are in conflict with each other.").
[brief] **32a.**  [...] holds Board Certifications in General Surgery, Vascular Surgery and Surgical Critical Care, which are the distinct medical disciplines in which he specializes.  **32A.**  [...]’s Board Certifications were issued by the American Board of Surgery.  **34A.**  Following his graduating from Medical School, [...] completed a residency in surgery and a vascular fellowship.  **34A.**  Defendant holds Board Certifications in Internal Medicine, Pulmonary Medicine and Critical Care Medicine, which were issued by the American Board of Internal Medicine.
[brief] (18T76-19 to 14).  As a result, the sentencing judge felt that the best indicator of how defendant was likely to behave in the future was how he behaved the last time he was in that environment, which was the night of the homicide.  (18T78-1 to 25).  The judge likewise was unable to find that the need for deterrence had lessened because defendant was in a controlled environment.  (8T80-15 to 19).  Given that defendant’s prison record reflected no infractions the entire time he was incarcerated, rather than improved behavior as he matured or responded to prison programs, this was a reasonable conclusion supported by the evidence before the court.
[brief] The officer testified that based on his knowledge and experience, cigarette packs are sometimes used to transport drugs, that the two men were not smoking at the time, that he had information the defendant was a suspected drug dealer, and that the defendant began to cry when he was stopped and asked to produce the cigarette pack.  While the Court held that the officer had reasonable suspicion justifying an investigatory stop under the circumstances, it deemed these facts insufficient to raise the level of suspicion to probable cause.  *Id.* at 25.  The Court concluded that “[t]he sum of the evidence was merely the officer’s prior general narcotics training and experience, and his conclusory testimony that he knew that cigarette packs are used to transport drugs because he had seen that type of activity before. ”  *Id.* at 28-29.  The Court further noted that the passing of the cigarette pack might have been nothing more than an innocent transfer and that there was no evidence that currency had changed hands, which would indicate a drug deal.  *Id.* at 28  In *State v. Moore*, 181 N.J. 40 (2004), decided on the same day as *Pineiro*, the Court reached the opposite conclusion.
[brief] However, Plaintiff-Appellant chose not to do so.  Instead, Plaintiff-Appellant dismissed the underlying case and chose, instead, to file a separate lawsuit against Defendant-Respondent, [...], one year and fifteen days after the time period to bring such suit had expired.  Defendant-Respondent, [...], never asserted that Plaintiff-Appellant, [...], did not qualify for UIM benefits when she first notified [...] of her claim for underinsured motorist benefits and requested consent to settle.  Plaintiff’s letter requesting consent to settle was sent on May 2, 2022.  Therefore, as stated, Plaintiff-Appellant still had one year under the suit limitation clause to file suit against Defendant-Respondent.
[brief] *Parker v.* Marcus, 281 N.J. Super. 589, 593 (N.J. Super. Ct. App. Div. 1995) (citing Jansson v. Fairleigh Dickinson Univ., 198 N.J. Super. 190, 195 (N.J. Super. Ct. App. Div. 1985)).  The court agrees with the Chapter 13 Trustee in his pleading.
[brief] U.S. Const. amends.  V, VI, VIII, XIV; N.J. Const. art. I, ¶¶ 1, 9, 10, 12.  The Court Rules provide that a defendant has the right to a presentence investigation that produces a report which “shall contain all presentence materials having any bearing whatever on the sentence. ”  R. 3:21-2(a).  This requirement that the presentence report including all relevant information is “mandatory. ”  State v. Mance, 300 N.J. Super. 37, 65-66 (App. Div. 1997).  See also State v. Randolph, 210 N.J. 330, 343 (2012) (“[T]he trial court must consider all current information that is relevant to an appraisal of aggravating and mitigating factors”); State v. Jaffe, 220 N.J. 114, 121 (2014) (“[T]he Legislature requires the sentencing court to give ‘due consideration to a presentence report, prepared after a defendant’s conviction, which includes individualized information pertaining to a defendant’s … psychiatric … history’”).
[brief] For the foregoing reasons, it is respectfully urged by the plaintiff that this Court reverse the holding of the Hon. [...], J.S.C.  From the factual circumstances of the accident, a jury should have been permitted to assess whether the probability was that the plaintiff either slipped or tripped on the plywood strewn in front of the dumpster causing his fall and resulting injuries.  Respectfully submitted, GARRITY GRAHAM  MURPHY GAROFALO & FLINN, P.C.  Attorneys for Plaintiff-Appellant /s/ [...]  Dated: September 19, 2023  [...] [...], Plaintiff-Appellant, v. [...]; [...]; JOHN DOE #1-10 AND ABC CORP. #1-10, Defendants-Respondents.  SUPERIOR COURT OF NEW JERSEY  APPELLATE  DIVISION  DOCKET NO.: [...]  CIVIL ACTION  SUPERIOR COURT OF NEW JERSEY LAW
[directive] The program is to include semi-annual qualification with handguns and semi-annual qualification with the agency authorized shotgun utilizing standardized courses of fire under daylight and night firing conditions.  Shotgun.  A smooth bore firearm that is specifically designed and capable of firing shotgun cartridges.  9-9 Revised (5/03)  Semi-Annual Firearms Qualification and Requalification Standards  Shotgun Qualification Course (SQC).  A standard course of fire for semi-annual qualification for shotguns as prescribed in this manual.  (Appendix D).  Shotgun Night Qualification Course (SNQC).  A standard course of fire under subdued light conditions for semi-annual qualification for shotguns as prescribed in this manual.  (Appendix D).  Shotgun Slug Qualification course (SSQC).  A standard course of fire for semi- annual qualification both day and under subdued light conditions utilizing shotgun slugs.  (Appendix D1).  Supervising Firearms Instructor.
[brief] ”  *McKeown-Brand*, 132 N.J. at 563; see also *Deutch & Shur, P.C. v. Roth*, 284 N.J. Super. 133, 138 (Law. Div. 1995).  Even when a complaint is dismissed on a motion for summary judgment, that dismissal “does not predetermine that plaintiff ‘commenced, used or continued’ [its] complaint ‘in bad faith, solely for the purpose of harassment, delay or malicious injury’ in violation of N.J.S.A. 2A:15-59.1b(1). ”  *Ibid.*  When a prevailing defendant's allegation is based on the absence of “a reasonable basis in law or equity” for the plaintiff's claim, an award cannot be sustained if the “plaintiff did not act in bad faith in asserting” or pursuing the claim.