ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] TABLE OF CONTENTS | Section | Page | |------------------------------------------------------------------------|------| | PRELIMINARY STATEMENT | 1 | | LEGAL ARGUMENT | 4 | | I.  RESPONDENT’S ARGUMENT THAT [...] HAD A REASONABLE, ARTICULABLE SUSPICION  SUFFICIENT TO EFFECT  A STOP OF APPELLANT  IGNORES  CRUCIAL TESTIMONY  ESTABLISHING THAT THE COMMUNITY CARETAKING FUNCTION WAS INAPPLICABLE | 4 | | II.  RESPONDENT DID NOT ESTABLISH THAT APPELLANT OPERATED A VEHICLE BEYOND A REASONABLE DOUBT | 6 | | III.  RESPONDENT DID NOT MEET ITS BURDEN OF ESTABLISHING THAT APPELLANT OPERATED A VEHICLE WHILE INTOXICATED BEYOND A REASONABLE DOUBT UNDER EITHER THE PER SE OR OBSERVATIONAL STANDARDS OF LIABILITY | 7 | | IV.  APPELLANT’S CLAIM THAT THE STATE VIOLATED THE DISCOVERY RULES IS NOT WITHOUT MERIT | 11 | | V.  IF THE COURT DOES NOT REVERSE APPELLANT’S CONVICTION, THE COURT SHOULD REMAND FOR RE-SENTENCING TO A MORE REASONABLE MONTHLY PAYMENT PLAN | 12 | | VI.  THE LAW  DIVISION’S SENTENCING OF APPELLANT UNDER THE INCORRECT VERSION OF N.J.S.A. 39:4-50 IS SUFFICIENT FOR THIS COURT TO REMAND THIS MATTER FOR RE-SENTENCING | 12 | | CONCLUSION | 14 | # TABLE OF AUTHORITIES | Cases | |-------| | **Miranda v. Arizona,**<br>384 U.S. 436 (1966) | 9 | | **State v. Chun,**<br>194 N.J. 54 (2008) | 2, 7, 8 | | **State v. Smith,**<br>251 N.J. 244 (2022) | 5 | | Statutes | |----------| | N.J.S.A. 39:4-50 | 1, 3, 11, 12, 13, 14 | | Rules | |-------| | R. 3:13-3 | 3, 11 | | Other Authorities | |-------------------| | Administrative Directive #25-19, “Implementation of New DWI Law (L. 2019, c. 248) - Includes Expanded Use of Ignition Interlock Devices for First-Time Offenders” (Dec. 4, 2019) | 13
[brief] (1T  [...] and his wife were inside the store for “[a]bout an hour, hour and ten minutes. ”  (1T 109-22 to 23)  [...] explained that after he and his wife had walked out of the store, he was standing next to his Jeep talking to another man about the gym and getting a personal trainer.  (1T 110-2 to 6)  He saw some police officers approaching.  (1T 110-15 to 16)  [...] testified that [...] walked up with “some cuffs in his hand and he told [the] guy that I was talking to, if you don’t want to go [to] jail, I suggest you get out of here now.  So the guy took off. ”  (1T 110-17 to 22)  [...] testified that [...] told him, “they got my buddy [...] down the highway and he said he caught him with five bags of heroin and he said he bought them from you.
[brief] The overwhelming and largely uncontradicted testimony of Petitioner adduced at the time of the OAL Hearing demonstrates she was eligible for the intra-fund transfer as an employee in [...] under Chapter 92(b).  Respondent’s Brief further demonstrates Petitioner was a bona fide employee of [...] from 2015 to the present and the ALJ’s decision was clearly arbitrary and capricious and lacked fair support in the record.  Saccone v. Bd. of Trs. of the Police & Firemen’s Ret. Sys., 219 N.J. 369, 380 (2014) (quoting Russo v. Bd. of Trs. of the Police & Firemen’s Ret. Sys., 206 N.J. 14, 27 (2011)).  Neither Chapter 92(b) nor its legislative history prohibit prosecutors, even ones who are part-time, from being eligible for a pension under PERS.  (Rb2).  If the legislature wanted to prohibit part-time municipal prosecutors from its sweeping pension reform, it could have said so, but it chose not to.  In fact, the Petitioner herself is eligible and enrolled in PERS as a part-time municipal prosecutor in the [...].  The ALJ’s decision lacks any support in the record as the totality of the IRS 20 Factor Test weighs heavily in favor of the Petitioner being an employee.
[brief] The Trial Court Did Not Err In Considering [...]’s Motion To Dismiss The Appellants’ Complaint Under R. 4:6-2(e) As Opposed to R. 4:46-2 ..............................................................45 CONCLUSION ..................................................................................49 | Cases | Page | |----------------------------------------------------------------------|------| | Aiello v. Knoll Golf Club, 64 N.J. Super. 156 (App. Div. 1960) | 30 | | Allen v. Seymore, 2010 N.J. Super. Unpub. LEXIS 1376 | 19 | | (App. Div. June 24, 2010) | | | Banco Popular N. Am. v. Gandi, 184 N.J. 161 (2005) | 44, 46| | Bauer v. Nesbitt, 198 N.J. 601 (2009) | 44 | | Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448| 23 | | (App. Div. 2012) | | | Bonczek v. Carter-Wallace, Inc., 304 N.J. Super. 593 (App. Div. 1997)| 25 | | Branch v. Emery Transp. Co., 53 N.J. Super. 367 (App. Div. 1958) | 25 | | Brown v. Town of Old Bridge, 319 N.J. Super. 476 (App. Div. 1999) | 23 | | Capps v. Rowan Univ., 2021 N.J. Super. Unpub. LEXIS 2753 | 27 | | (App. Div. Nov. 12, 2021) | | | CDK Global, LLC v. Tulley Auto Group, Inc., | 31 | | 2016 U.S. Dist. LEXIS 57186 (D.N.J. April 29, 2016) | | | Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman and Stahl, P.C., | 20, 44| | 237 N.J. 91 (2019) | | | Du-Wel Prods., Inc. v. U.S. Fire Ins. Co., 236 N.J. Super. 349 (App. Div. 1989), certif. denied, 121 N.J. 617 (1990) | 19 | | E. Brunswick Sewerage Auth. v. E. Mill Assocs., Inc., 365 N.J. Super. 120 | 40 | | (App. Div. 2004) | | | Filmlife, Inc. v. Mal “Z” Ena, Inc., 251 N.J. Super. 570 (App. Div. 1991) | 31 | | Fisher v. Yates, 270 N.J. Super. 458 (App. Div. 1994) | 23 | Fox v. Mercedes-Benz Credit Corp., 281 N.J. Super. 476 (App. Div. 1995) .. 22, 24 Globe Motor Car Co. v. First Fid., 291 N.J. Super. 428 (App. Div. 1996)  ...........23  Higgins v. Polk, 14 N.J. 490 (1954) .................................................................19
[brief] This Court disagreed and held that Plaintiffs’ …rationale is flawed because the next sentence of N.J.S.A. 40:55D:10g provides that “The municipal agency shall provide the findings and conclusions through:  …(2)  A memorializing resolution....”  Read together, these provisions establish that it is the resolution that “provides” the required findings of fact and conclusions.  There is no mandatory two-step procedure.  We do not mean to suggest that discussion among board members is inappropriate.  They are public officials, entrusted with the responsibility of deciding issues affecting the public.  Discussion by board members in the public forum is beneficial.  We do not deem it mandatory.  Individual members do not act.  The board acts as a body.  The resolution provides the body's findings and conclusions, expressed by those who vote to adopt the resolution.  This rationale is conditioned, of course, on the premise that those who vote to adopt have read the resolution, understand it and agree with its contents.  Every presumption should be indulged that those conditions have been met.  The burden is on the opponent to show otherwise.  (Id. at 311-12.)
[brief] The evidence presented at trial must bear that assertion out.  While the charge need not be in line with defendant’s theory of self-defense, it must still be rational.  As to the first issue, defendant’s own parents, called as witnesses as a part of his own defense, both admitted that the entire story that [...] had brought a gun to their home was complete fabrication in order to shield defendant from liability.  (29T:163-4 to 176-12; 31T:39-25 to 51-4, 131-15 to 134-9).  On top of that, [...] identified the gun used that night as the one he had given to defendant.  (25T:159-11 to 160-4).  This completely negates any “rational” claim that defendant was provoked by the possession of a gun by the decedent.  Defendant claims this is irrelevant because the charge need not comport with the defense theory of the case (Db39) — but, what defendant ignores is that it must comport with the evidence at trial.
[brief] D.  Conspicuousness.  Even if the customer was fortunate enough to find the deposit agreement, the arbitration clause appears on pages 35-36 (Pa 73-74) and the only mention that it exists is on page three in the table of contents in an indistinguishable font.  (Pa 41).  New Jersey law requires reasonable notice as a predicate to enforceability of any provision in a contract, including arbitration clauses, Hoffman v. Supplements Togo Mgt., L.L.C., 419 NJ Super 596, 609 (App. Div. 2011); Noble supra 682 F’App at 116 -
[brief] [...] inserts this unsupported conclusory statement at the end of its lengthy diatribe on [...]’s discussion of the Hackensack Project issues, likely in the hopes the Appellate Court ignores the fact that it fails to support such an outlandish claim with either an affidavit or support in the record.  [...] misleadingly quotes [...]’s claim for business loss damages and then adds its own unsupported conclusion (“which included the above-referenced alleged losses at the Hackensack Project”), but disingenuously places the citation to [...]’s Statement of Counterclaim at the end of its sentence, to make it seem as though [...] included the Hackensack Project claims in its business loss claim.
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[brief] See 24T34:23-35:3, 36:16-17, 36:23-37:4.  In fact, the “support” for all but three of the [...] and [...] transactions appears to be the extremely limited testimony [...] gave – over objection – during his second re-direct examination.  11T11:1-13:3.  As defense counsel argued, the testimony amounted to “cherrypicking random fund transfers that don't relate to anything that's in Mr. [...]'s report. ”  11T24:1-3.  He could have added that the transactions did not relate to anything in [...]’s testimony, either.  [...], the only fact witness presented by plaintiffs, did not testify about any of these transactions.
[brief] The Township and the Board agree to cooperate with [[...]] in processing the applications with outside agencies which the Parties acknowledge will benefit the Project.  **The Township and the Board agree to use all commercially reasonable efforts** to assist [[...]] in its undertakings to obtain the Required Approvals, provided that the taxes are current and [[...]] is in compliance with this Agreement.  [Pa052-Pa053 (emphasis added)].  Pursuant to Section 6(d) of the Settlement Agreement, the “Township and the Board recognize that the Required Approvals and this Agreement all contemplate the development of an “Inclusionary Development” within the meaning of the Mount Laurel doctrine.  Therefore, in accordance with N.J.A.C. 5:93-10, the Township and Planning Board **will not impose development standards and/or requirements that constitute unnecessary ‘cost generative features.
[brief] The obligation to provide proper notice even applies beyond policy changes.  *Cf. Erie Ins. Exch. v. Lobenthal*, 114 A.3d 832, 839 (Pa.Super.2015) (reservation of rights invalid as to resident relative additional insured who was not separately advised of the reservation); *Knox-Tenn Rental Co. v. Home Ins. Co.*, 2 F.3d 678, 682 (6th Cir.1993) (denial ineffective where reservation of rights issued to company did not also provide notice thereof to an insured employee).
[directive] INTERNAL AFFAIRS POLICY & PROCEDURES | August 2020  Therefore, in the event a County Prosecutor has initiated a criminal investigation of an internal affairs matter, the internal affairs function must remain in contact with the County Prosecutor on a regular basis to determine the investigation’s progress.  Where a County Prosecutor has decided to terminate a criminal investigation and return the matter to the agency for appropriate disciplinary action, the internal affairs investigator and County Prosecutor must be able to document the date on which the County Prosecutor disposed of the criminal investigation.  6.1.9
[brief] (See 1T20:11-1T21:5).  If [...] had merely neglected to sign her mail-in ballot, she would have had an opportunity to cure that defect.  However, [...] did not just fail to sign the inner certificate of her mail-in ballot, she left it completely blank.  (1T23:3-9; Da10-11).  Neither N.J.S.A. 19:63-17 nor any other part of Title 19 allows for the Board to provide a voter to cure her mail-in ballot when the certificate is left completely blank.
[brief] Torres, 342 N.J. Super at 435.  In Torres, the trial judge rejected the defendant’s expert opinion on the value of shares in a closely-held corporation and the plaintiff did not present any expert opinion.  The trial judge then assigned a value for the oppressed shareholder’s stake based on the value set forth in a prior loan application.  Id.  The Appellate Division rejected this approach, and vacated and remanded the matter to the trial court.  Specifically, the Appellate Division held, the trial court “[w]here the parties fail to present sufficient expert testimony, the trial judge must seek assistance from other sources to aid his decision of fair value”
[brief] Indeed, in light of the New Jersey legislature’s 2010 amendment to the NJFPA expressly warning that New Jersey courts have been construing the NJFPA too narrowly, [...] respectfully submits that there is no basis to construe a “written arrangement” under the NJFPA any narrower than the federal Franchise Rule.  To be sure, as set forth in detail above, the Trial Court had several documents before it that would readily satisfy the NJFPA’s minimal “written arrangement” requirement.  In addition to multiple invoices, which, as noted above, would “check the box” for the FTC’s Franchise Rule *(see e.g., Pa16)*, [...] submitted, by way of example and without the limitation, the following: (a) an email from [...] to [...] in 2009 wherein Mr. Straubel expressly states that [...] and [...] are “trusted partners” in the development of the [...] brand (Pa789); (b) multiple [...]-owned websites referring to [...] as [...]’s East Coast point of contact, distributor, Director of Sales, or the like (Pa194-Pa196); (c) written catalogues, produced by [...], expressly titled as “[...] . . . by [...] Furnishings” (Pa650, Pa778); and (d) [...]’s own letter referring to the “distributor arrangement” that existed between [...] and [...] (see Pa97-Pa98).  It was therefore error to determine that [...] could not satisfy – as a matter of law – the NJFPA’s “written arrangement” requirement.
[brief] Indictment No. [...]  Criminal Action: On Motion for Leave to Appeal from an Order of the Superior Court of New Jersey, Law Division, Union County.  Sat Below: Hon. [...], J.S.C.  Honorable Judges: Pursuant to R. 2:6-2(b), and R. 2:6-4(a), this letter in lieu of a formal brief is submitted on behalf of the State.
[brief] In fact, in FY2021, [...] received 133.3% more aid than it would have received under the SFRA formula.  (Aa1109; Aa1458-59; Aa1872).  [...] does not dispute any of this.  Ibid.  Although [...] argues that the “levy gap” between its actual local levy and the LFS is widening, the facts demonstrate otherwise.  In FY2020, [...]’s local levy of $136,504,704 was 28% of its LFS of $474,039,468.  (Aa1112; Aa1873).  In FY2023, its local levy of $426,247,606 was more than 80% of its LFS of $532,016,412.  Ibid.  Thus, [...] has demonstrated it is entirely capable of contributing its local share, and its artificially-created levy gap is decreasing.  Chapter 68 has also assisted [...] while it raised its local tax levy.  [...] received ample funds from [...] through the payroll tax provision to offset the yearly loss in state aid pursuant to the SFRA amendments.  (Aa2089-2190).  The annual amount deposited into the City’s payroll tax account has been consistent and is rising.  Ibid.  Specifically, in the partial year of FY2019, $18.6 million was deposited into the account; $65.8 million was deposited in FY2020; $73.4 million was deposited in FY2021; and $75.0 million was deposited in FY2022.  Ibid.  [...] has at its disposal the tools to ensure that it can meet its local contribution and receive its proportionate share of State aid resources, and [...] has demonstrated it is capable of contributing its local share.
[brief] (4T:168:18-25).  Outside the presence of the jury, the trial court made it clear to plaintiff’s counsel that the court found that [...]’s behavior was “willful and it is wrong” and advised plaintiff’s counsel that the Court would instruct plaintiff, and then instruct the jury to disregard his conduct.  (4T:171:16-17).  The Court instructed [...] regarding the laughing and snickering he was doing, which was not appropriate.  (4T:172:12-25).  The Court instructed [...] to behave in the courtroom without laughing and snickering while someone was testifying.  (4T:172:20-25).  [...] was instructed not to do it anymore.  The jury was instructed to disregard [...]’s laughing and snickering, and that they should not consider it in their deliberations.  (4T:173:1-7).  The Court found that [...]’s behavior on the stand was unacceptable.  (3T:93:20-21).  Additionally, during [...]’s cross examination by [...]’ counsel, Mr. [...] refused to answer simple questions regarding who was the party to the lawsuit and on numerous occasions, called counsel for [...] a liar.
[brief] As the crowd entered the parking lot, [...] heard gunshots.  She could not say how many shots, but everyone started running.  She saw [...], who, she said, was known as “[...]” and “[...],” hit his head against --- 2  [...] confirmed that, “late in the evening,” there was a “disturbance on the dance floor” and the lights were turned up.  (11T 22-23 to 23-14)  [...] did not see the subsequent shooting in the restaurant parking lot.  (11T 23-15 to 23)  3  A member of the [...] party, [...], said she heard two shots in the parking lot.  (13T 40-22 to 22)  4  To avoid confusion, [...] is referred to in the brief as “[...]” and [...] as “[...].” a pole and fall.  (6T 141-16 to 25, 149-4 to 152-6)  When [...] reached [...], she saw that he had been shot; she did not see who shot him.  (6T 153-14 to 19, 167-25 to 168-2)
[brief] See Icon-IP Pty Ltd. v. Specialized Bicycle Components, Inc., No. 12CV03844JST (MEJ), 2014 WL 5387936, at *1 (N.D. Cal. Oct. 21, 2014) (explaining that the party seeking apex deposition bears the burden to show, inter alia, that the deponent has unique first-hand knowledge).  It is [...]’s position that depositions of [...] or [...] are not warranted in this case.  There is thus no reason to depart from [...]’s Order that [...] and [...] shall not be made custodians, certainly not before [...]’s document production is substantially complete, and certainly not for anything more than “very targeted” collections.  Swanson Decl., Ex. 3 at 48:8-11; Dkt 588.  If the Special Master nevertheless determines that [...] and [...] may possess unique relevant documents, [...]’s determination that searches of their files would be “very targeted,” should still be respected.
[directive] Internal Affairs Index File  9.2.1  The purpose of the internal affairs index file is to serve as a record control device to maintain an inventory of internal affairs case files and to summarize each case’s status for authorized personnel.  The instrument used for such an index file will vary by agency and could include a log book, index cards or a computerized data base.  9.2.2  All internal affairs complaints shall be recorded in the index file.  Entries should record each case’s basic information, including the subject officer, allegations, complainant, date received, investigator assigned, disposition and disposition date for each complaint.  A unique case number assigned to each internal affairs complaint will point to the complete investigation file’s location and will simplify case tracking.  54  INTERNAL AFFAIRS POLICY & PROCEDURES | August 2020
[brief] A.  The Standards Applicable to OPRA Cases  Our Supreme Court has held that “Those who enacted OPRA understood that knowledge is power in a democracy, and that without access to information contained in records maintained by public agencies citizens cannot monitor the operation of our government or hold public officials accountable for their actions. ”  *Fair Share Housing Ctr, Inc. v. N.J. State League of Municipalities*, 207 N.J. 489, 502 (2011).  OPRA mandates that government records shall be readily accessible for inspection, copying, or examination by the citizens of this State, with certain exceptions, for the protection of the public interest, and any limitations on the right of access accorded [under OPRA] as amended and supplemented, shall be construed in favor of the public’s right of access.  *[Libertarian Party of Cent. N.J. v. Murphy*, 384 N.J. Super. 136, 139 (App. Div. 2006) (alterations in original) (citing N.J.S.A. 47:1A-1)].  “The purpose of OPRA ‘is to maximize public knowledge about public affairs in order to ensure an informed citizenry and to minimize the evils inherent in a secluded process. ’”  *Times of Trenton Publ’g Corp. v. Lafayette Yard Cmty. Dev. Corp.*, 183 N.J. 519, 535 (2005) (quoting *Asbury Park Press v. Ocean Cnty. Prosecutor’s Off.*, 374 N.J. Super. 312, 329 (Law Div. 2004)).  The burden of proof in showing that a denial of access was justified rests solely with the records custodian.  N.J.S.A. 47:1A-6; *Asbury Park Press v. Monmouth Cnty.*, 406 N.J. Super. 1, 7 (App.  Div. 2009), aff’d o.b., 201 N.J. 5 (2010).  Under OPRA, a “government record”: means any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data processed or image processed document, information stored or maintained electronically or by sound-recording or in a similar device, or any copy thereof, that has been made, maintained or kept on file in the course of his or its official business by any officer, commission, agency or authority of the State or of any political subdivision thereof, including subordinate boards thereof, or that has been received in the course of his or its official business by any such officer, commission, agency, or authority of the State or of any political subdivision thereof, including subordinate boards thereof.  [N.J.S.A. 47:1A-1.1.]  In this case, the parties agree that the standard of review in this case is de novo, primarily because the matter below was heard based on undisputed facts and no live testimony was taken.  “[D]eterminations about the applicability of OPRA and its exemptions are legal conclusions and are therefore subject to de novo review. ” Simmons v. Mercado, 247 N.J. 24, 38 (2021) (alterations in original; internal citation and quotation marks omitted).  The Trial Court’s legal conclusions and interpretations of law are reviewed de novo.  Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).  This Court owes no deference to findings that are not based on witness testimony or credibility findings.  Yueh v. Yueh, 329 N.J. Super. 447, 461 (App. Div. 2000).  B.
[brief] “For standing purposes, Article I, Paragraph 7 provides broader protection to the privacy rights of New Jersey citizens than the Fourth Amendment. ”  State v. Brown, 216 N.J. 508, 528 (2014).  “Under New Jersey law, the State bears the burden of showing that defendant has no proprietary, possessory, or participatory interest in either the place searched or the property seized. ”  Randolph, 228 N.J. at 582 (citing Brown, 216 N.J. at 528).  Significantly, a defendant charged with a possessory offense of the evidence seized, as in this case, has automatic standing to challenge a search or seizure, unless the State establishes an exception to that rule.  Id. at 581, 585; State v. Lamb, 218 N.J. 300, 313 (2014); State v. Alston, 88 N.J. 211, 228 (1981).
[brief] This new exception, like the change adding the “subcontractor exception” to the “your-work” exclusion in Cypress Point, is outcome determinative.  Quite simply, if the exception applies, the mold exclusion “does not apply. ”  There is no language in the exception stating that it applies “only if the fungi-containing good or product includes a mycotoxin that is actually consumed and causes a distinct, identifiable injury. ”  ([...] could certainly have drafted such language into the policy, but the Court should not do so.)