ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] [...] successfully opposed the attempt at interlocutory review because the trial court correctly, faithfully, and properly fulfilled its duty in applying the proper, controlling law to these facts.  Plaintiffs simply could not and cannot sustain their burden of proof regarding the adequacy of [...]’s store operations without the aid of expert testimony.  Moreover, there is no proof that [...] had actual or constructive notice of any allegedly dangerous condition or breached any duty owed to Plaintiff.  Instead, Plaintiffs attempt to distract this Court from the fatal flaws in their case by raising red herrings and baseless allegations of spoliation of evidence, adverse inferences and jury charges.  However, the motion court correctly ruled that this matter should not be presented to a jury.
[brief] It hardly needs to be said that one set of facts may give rise to several different theories of recovery.  E.g., Nader v. Gen. Motors Corp., 292 N.Y.S.2d 514, 515 (Sup. Ct. 1968); People ex rel. Burris v. Progressive Land Developers, Inc., 151 Ill. 2d 285, 295 (Ill. 1992).
[brief] *Vincitore*, 169 N.J. at 122.  The *Vincitore* Court determined that decedent’s activity was reasonable as he was familiar with the operation of the gates at the crossing and could have approached the crossing and interpreted the open gates to mean that it was safe to cross.  *Vincitore*, 169 N.J. at 129.  The Court concluded that the railroad crossing exposed the objectively reasonable member of the general public to a substantial risk of injury.  Additionally, the Court found that since the Authority knew of the risk, knew that having guards to operate the gate eliminated that risk and knew that people who ordinarily traversed the crossing during the racing season would have believed the open gate meant it to be safe, that their conduct in not eliminating the dangerous condition was palpably unreasonable.
[brief] Defendant/Appellant [...] seeks appellate review of the lower court’s September 22, 2023 Order on that basis that the Trial Court mistakenly exercised its discretion in denying the motion to vacate.  “A court should view ‘the opening of default judgments … with great liberality,’ and should tolerate ‘every reasonable ground for indulgence … to the end that a just result is reached. ’”  Mancini v. EDS on Behalf of New Jersey Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993), quoting Marder v. Realty Constr. Co., 84 N.J.Super. 313, 319 (App.Div.), aff'd, 43 N.J. 508 (1964).  The decision rests in the “sound discretion of the trial court, where… there is a mistaken exercise of that discretion, reversal is in order. ”  Davis v. DND/Fidoreo, Inc., 317 N.J.Super. 92, 101 (App. Div. 1998) (quoting Mancini, 132 N.J. at 334, (citing Housing Auth. V. Little, 235 N.J. 274, 283-84 (1994)).  Where the application concerns a default judgment, the court’s discretion must be “guided by equitable principles, and in conformity with the prescription that ‘any doubt should be resolved in favor of the application to set aside the judgment to the end of securing a trial upon the merits. ’”  Davis, 317 N.J.Super. at 100-101 (quoting Goldfarb v. Roeger, 54 N.J.Super. 85, 92 (App.Div.1959) and Loranger v. Alban, 22 N.J.Super. 336, 342 (App.Div.1952)), see also Mancini, 132 N.J. at 334, (citing Arrow Mfg. Co. v. Levinson, 231 N.J.Super. 527, 534 (App.Div.1989)).  Typically, an abuse of discretion will only “arise[ ] when a decision is ‘made without a rational explanation, inexplicably depart[s] from established policies, or rest[s] on an impermissible basis. ’ ”  Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigr. and Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir.1985)).  Although this standard of review “defies precise definition,” the “functional approach … examines whether there are good reasons for an appellate court to defer to the particular decision. ”  *Ibid.*  Discretion, however, means legal discretion, “in the exercise of which the judge must take account of the law applicable to the particular circumstances of the case and be governed accordingly. ”  *Alves v. Rosenberg*, 400 N.J.Super. 553, 563 (App.Div.2008) (quoting *State v. Steele*, 92 N.J.Super. 498, 507 (App.Div.1966)).  “Obviously, if the trial judge misconceives the applicable law or misapplies it the exercise of legal discretion lacks a foundation and becomes an arbitrary act. ”  *Ibid.* (internal quotations omitted).  “In this regard, the trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference. ”  *Alves*, 400 N.J.Super. at 563 (quoting *Maglies v. Estate of Guy*, 193 N.J. 108, 116 (2007)).  **LEGAL ARGUMENT**
[brief] Id. at 298.  The Court found that it was problematic because [...] had a history of ADHD.  Id.  “Furthermore, the problem was compounded by the fact that [...] and his mother did not consult privately to consider the warnings that had just been administered. ”  Id.  The Court found that the “interrelated circumstances, viewed collectively and in light of [...]’s intellectual and cognitive limitations, [supported] his argument that he did not comprehend his right against self-incrimination and the implications of waiving that right. ”  Id.  Here, the majority of [...]’s answers with respect to whether he understood his Miranda rights were “yeah. ” (7T:281-25 to 291-9).  Similar to [...], [...] took almost no time to process the information.
[brief] The trial court’s clear errors in this regard merit vacating the Judgment against Defendant.  Plaintiffs’ arguments concerning their breach of contract, breach of covenant of good faith and unjust enrichment claims equally miss the mark.  Without citing any supporting case law, Plaintiffs urge this Court to overlook the trial court’s plain error in holding Defendant liable for breaching contracts (and implied covenants therein) that she was not a party to and holding her personally liable for [...]’s purported acts in the face of no credible evidence justifying piercing the entity’s corporate veil.  Equally confounding was the trial court’s decision to hold Defendant liable for unjust enrichment, which belied its finding that Defendant was liable for damages for breaching express contracts with Plaintiffs.  Plaintiffs did not even bother to address these arguments in their brief.  Again, the court’s errors of law demand reversal of the Judgment.
[brief] Conversion requires proof that a defendant wrongfully exercised dominion and control over property owned by another.  Commercial Ins. Co. v. Apgar, 111 N.J. Super. 108, 114-15 (Law Div. 1970).  “The crux of _____________________ is ironic [...] chooses to call this a Title Survey, but refuses to even reference either the [...] or its own [...].
[brief] Alternatively, the jury could not possibly properly deliberate on the facts of this case without knowing the *Moon* rule, but the jury instruction told them only to find whether [...] was left helpless or incapacitated, failing to inform the jurors that a dead victim does not fall under those statutory terms.  (32T 170-1 to 173-5)  As noted in Point II, supra, “[a]n essential ingredient of a fair trial is that a jury receive adequate and understandable instructions. ”  State v. McKinney, 223 N.J. 475, 495 (2015); State v. Concepcion, 111 N.J. 373, 379 (1988).  Moreover, a trial judge must depart from the model instruction when doing so, as here, is critical to preserving a defendant’s right to a fair trial.  That obligation requires tailoring the legal definitions in a jury instruction to the demands of a case.  Concepcion, 111 N.J. at 379; State v. Gartland, 149 N.J. 456, 475-476 (1997); State v. Martinez, 229 N.J. Super. 593-601-604 (App. Div. 1989).  Instructional errors on such essential matters, even in cases where those errors are not raised below, are traditionally deemed prejudicial and reversible error because they interfere with the jury’s proper assessment of the defendant’s culpability.  Id.; State v. Rhett, 127 N.J. 3, 5-7 (1992); Concepcion, 111 N.J. at 379.  This jury could not possibly fairly return a verdict on Count Four without determining whether [...] had died immediately after being shot, as the defense expert testified he had, and as the State appeared to concede, but they had not a clue that a dead victim is not an incapacitated one under Moon.  That omission was plain error and warrants a reversal of the conviction for Count Four and a remand for retrial if defendant is not acquitted of that count based upon the primary argument in this point.  POINT VI
[brief] The interests of justice require interlocutory review because the trial court incorrectly authorized the State’s use of “other crimes” evidence regarding statements made in a Union County indictment against the defendant.  Unlike other applications of N.J.R.E. 404(b), the “other crimes” evidence in question here were dismissed.  Rule of evidence 404(b) is “a rule of exclusion rather than a rule of inclusion. ”  *State v. Willis*, 225 N.J. 85, 100 (2016) (quoting *State v. Marrero*, 148 N.J. 469, 483 (1997)).  The rule prohibits the admissibility of other crimes, wrongs, or prior bad acts as propensity evidence, or evidence to suggest that a defendant acted in conformity with his prior behavior.  See N.J.R.E. 404(b).  “Prior-conduct evidence has the effect of suggesting to a jury that a defendant has a propensity to commit crimes, and, therefore, that it is ‘more probable that he committed the crime for which he is on trial. ’”  *Id.* at 97 (quoting *State v. Weeks*, 107 N.J. 396, 406 (1987)).  Due to the “‘unique tendence’ to prejudice a jury, [other crimes] must be admitted with caution.  *Id.* (quoting *State v. Reddish*, 181 N.J. 533, 608 (2004)).  It is because of this unique prejudice that interlocutory review is required and why this Court has granted leave in other cases involving “other crimes” evidence.
[brief] ”  The general standard for determining the admissibility of an expert’s opinion is whether the expert’s testimony will help the jury understand the evidence presented and determine the questions in issue.  *State v. Odom*, 116 N.J. 65, 71 (1989).  Under this standard of admissibility, an expert will be barred from testifying when the danger of prejudice, confusion and diversion of attention his or her testimony creates surpasses its helpfulness to the jury because it is not sufficiently reliable.
[brief] This was a “definite deadlock,” to quote Czachor, under these circumstances – i.e., in which one day of deliberation was all that was possibly going to occur and everyone knew the time was very late on that day -- and the answer to that deadlock was to declare a mistrial.  Alternatively, however, at a minimum, even if the second “redeliberate” order could somehow have been justified at 4:45 p.m., the way it was given here was simply too coercive to pass constitutional muster.
[brief] “No single factor is a necessary or sufficient condition to the finding of a deprivation of the right to a speedy trial. ”  State v. Tsetsekas, 411 N.J. Super. 1, 10 (App. Div. 2009).  “All factors are related, thereby requiring a balancing of all applicable factors while recognizing the fundamental right bestowed on a defendant to a speedy trial. ”  Cahill, 213 N.J. at 267.  Dismissal of the indictment with prejudice “is the only possible remedy” for a violation of the right to a speedy trial.  Barker, 407 U.S. at 522; accord Cahill, 213 N.J. at 276.  A trial court’s determination after “balancing all the relevant factors relating to the respective interests of the State and the defendant[] . . . should not be overturned unless clearly erroneous.
[brief] *Monell v. Dep’t. of Soc. Servs.*, 436 U.S. 658, 690 (1978).  The liability of a public entity under §1983 only attaches when “execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury. ”  Id. at 694.  A policy is created when a decision-maker with authority "issues an official proclamation, policy, or edict."  *Bielevicz v. Dubinion*, 915 F.2d 845, 850 (3d Cir. 1990).  A course of conduct may be considered a custom when the practice of municipal officials, though not authorized by state law, is "so permanent and well-settled" that it constitutes law.  *Monell*, supra, 436 U.S. at 691.  See also *Torres v. Kuzniasz*, 936 F.Supp. 1201, 1206 (D.N.J. 1996).  A policy cannot be established by a plaintiff’s naked allegation.
[brief] Defendant concedes plaintiff paid money to defendant on January 2019.  DB p. 32.  That payment included the origination fee and the “accrual rate (i.e. interest) charged do the preceding loans.  The 2019 loan functionally refinanced the prior loans.  The improper charges, liens and out of pocket costs suffered by plaintiff make her “aggrieved. ”  AA316 to AA366 Da 061.  II.
[brief] 17 POINT ONE  THE LOWER COURT PROPERLY EXERCISED ITS DISCRETION IN HOLDING THAT THE TERM “SALE” IN THE PARTIES’ PSA INCLUDED AN INVOLUNTARY SALE THROUGH EMINENT DOMAIN.  .................................................................  17 POINT TWO IN THE ALTERNATIVE, THE LOWER COURT’S RULING SHOULD BE UPHELD UNDER THE EQUITABLE THEORY OF CONTRACT REFORMATION.  .................................................................  20 SUBPOINT A THE PSA SHOULD BE REFORMED TO REFLECT THE PARTIES’ INTENT.
[brief] ”); State v. Lavary, 152 N.J. Super. 413, 418 (App. Div. 1977) (“A conspiracy is not the commission of the crime which it contemplates, and the conspiracy neither violates nor ‘arises under’ the statute whose violation is its object. ”); State v. Scherzer, 301 N.J. Super. 363, 401 (App. Div. 1997).  While aggravated assault carries a mens rea of purposeful, knowing, or reckless, conspiracy requires purpose to promote or facilitate a crime.  The court’s instruction, tracking the model jury charge, carries no “clear capacity to bring about an unjust result. ”  Koskovich, 168 N.J. at 529.  B.  Because there was neither potential for, nor evidence of, jury confusion, and the court made clear the verdict had to be unanimous, the overt-act jury instruction was proper.  Defendant’s argument that the court should have issued a specific unanimity instruction regarding the overt-act element is likewise unfounded.
[brief] Willoughby involved a political and legal quagmire in which the plaintiffs mounted an organized, successful campaign to unseat members of the Planning Board who supported the relevant ordinance—the new Board passed a new ordinance restoring the prior zoning.  Willoughby, 306 N.J. Super. at 271-72.  However, before that ordinance took effect the developer’s site plan application (based on the old zoning) was rushed to approval.  Id.  Faced with this mess and an incomplete record, the court determined the interests of justice supported enlarging the period to challenge the municipal action.
[brief] As discussed on Point II.B, supra, a contract that contains inconsistent indemnity clauses does not express the clear and unequivocal intent needed to permit indemnification for the indemnitee’s own negligence.  Englert, 389 N.J. Super. at 48.  The trial court therefore erred in attempting to harmonize those disparate clauses, 1T20:16-21:23, instead of applying case law that governs multiple conflicting indemnity provisions.  E.g., Englert, 389 N.J. Super. at 57.  Specifically, Paragraph 4 required [...] to indemnify [...] for losses caused by its negligent snow removal while Double O was physically on the premises, and it required [...] to indemnify [...] for losses arising from its premises, including the negligence of [...] or its agents, for ice caused by snow melting and refreezing.  Da45, ¶ 4.  Paragraph 4 did not require either party to be indemnified for its own negligence.  Ibid.  Paragraph 2 required [...] to indemnify [...] for claims of injury arising out of the use of the property, whether or not such loss is caused by the negligence of [...], [...], or others.  Da44-45, ¶ 2.  Simply put, those paragraphs have different indemnity requirements.  Da44-45, ¶ 2 & ¶ 4.  In using paragraph 2 to re-write paragraph 4 into a clause that required [...] to indemnify [...] for Double O’s own negligence, 1T19:22-22:6, the trial court erred.  Mantilla, 167 N.J. 262 (holding that inconsistent indemnity provisions renders contract ambiguous); Englert, 389 N.J. Super. at 48, 57 (same).
[brief] “A judge has discretion to require further deliberations after a jury has announced its inability to agree. ”  State v. Adim, 410 N.J. Super. 410, 423 (App. Div. 2009)(citing State v. Figueroa, 190 N.J. 219, 221, 235 (2007); State v. Harris, 457 N.J. Super. 34, 49-50 (App. Div.), certif. denied, 238 N.J. 510 (2019).  “A trial judge “may send a jury back for further deliberations when [she] is not satisfied that all possibilities of reaching a verdict have been exhausted,” and may do so without first inquiring “of the jury whether further deliberation will likely result in a verdict. ”  Harris, 457 N.J. Super. 50 (quoting Figueroa, 190 N.J. at 240; State v. Carswell, 303 N.J. Super. 462, 478 (App. Div. 1997)).  Forcing a jury to continue deliberation after the “jury has reported a definite deadlock after a reasonable period of deliberation” would constitute an abuse of discretion.
[brief] IV.  ANY REMAND ORDER SHOULD NOT BE ASSIGNED TO ANOTHER ALJ.  Appellant’s allegations of “inordinate delay” ignore the dire reality of the COVID-19 pandemic.  It is borderline inappropriate for Appellant’s attorney to suggest that delays in the instant matter would somehow call into question [...]’s integrity and impartiality.  Any “reasonably objective fully informed” person would undoubtedly understand that COVID-19 would cause substantial delays.  *State v. Dalal*, 221 N.J. 601, 606 (2015) (citation omitted).  This conclusion is supported by the fact that the Chief Judge of the Administrative Law Division granted fifteen (15) *nunc pro tunc* extensions, something that would only be done if appropriate.  Appellant’s attorney most certainly knew that the pandemic impacted every aspect of litigation practice especially considering that the OAL Trial occurred via the Zoom virtual meeting platform.  As previously discussed at length, [...]’s decision to sustain the charges against Appellant and his stern but fair criticism of Appellant’s selfish and deceptive behavior is supported by credible record evidence.  These allegations of bias or the appearance of impropriety are baseless and should be disregarded by this Court.
[directive] Employment Status  Drug testing may be categorized by the employment status of the individual being tested and the method by which the individual was selected for testing.  These methods include applicant testing, trainee testing, and officer testing.  Testing is required of all police applicants and trainees.  Pursuant to AG Directive 2018-2, law enforcement agencies are required to implement a random drug testing program for all sworn officers in their departments.  Further, law enforcement agencies have an independent obligation to undertake drug testing of individual officers and trainees when there is reasonable suspicion to believe that the officer or trainee is illegally using drugs or is under the influence of a controlled dangerous substance or cannabis during work hours.  1.  Applicant Testing  The Law Enforcement Drug Testing Policy recognizes that drug testing is an important component of a pre-employment background investigation.  Thus, prospective employees should be drug tested as a condition of employment.  The policy requires law enforcement agencies engaged in the hiring process to drug test prospective employees at any point during the pre-employment process.  In addition, applicants for employment may be tested as many times as the law enforcement agency deems necessary to ensure that the applicants are not engaged in the illegal use of drugs.  For example, applicants who have been drug tested as part of the application process may be tested again if a significant amount of time has elapsed since the previous step in the employment process.  2  During the pre-employment process, the agency must ensure that it complies with the provisions of the Americans with Disabilities Act (ADA) by refraining from making any medical inquiries.  Therefore, the Drug Testing Medication Information form should not be used at the applicant stage, unless a positive test result requires an explanation by the prospective employee.  The Drug Testing Medication Information form shall be used if a conditional offer of employment has been made to the applicant.
[brief] N.J.S.A. 4:22 – 17.1 is evidence of Legislative intent not rely exclusively on internet dictionaries to define material terms in N.J.S.A. 4:22 – 17, et seq such as “tether,” “proper shelter,” “unattended,” etc..  Unfortunately for the State, the Legislature’s definition section did not go far enough to save N.J.S.A. 4:22 – 17 and N.J.S.A. 4:22 – 24 from constitutional infirmity.  c.
[brief] 11  “I'll tell you this: The defense will prove that [...] is innocent.  We threshold of trial, to prove innocence primed the jury for incontrovertible proof that did not materialize, tainting his credibility and creating an impossibly high burden to prove a negative.  By so overplaying his hand on opening, counsel also invited the prosecutor to seize on his failure to produce the incontrovertible proof he suggested he had up his sleeve.  Rather than simply contesting the alibi evidence, the prosecution repeatedly underscored that the defense had failed to show where Earley was at the moment of the shooting.  This then segued to the prosecution contrasting the absence of evidence in Earley’s favor with the three State’s eyewitnesses who were clear from the outset, supposedly, that it was Earley they had seen shoot [...].  (See 15T83-1 to 14)¹²  Earley protested the prosecution’s burden shifting that so damaged his defense on direct appeal, but this Court rejected the argument, finding counsel’s ill-advised opening permitted the State a “fair” response.
[brief] Moreover, any actions taken by [...] after incurring those damages should not mitigate, much less extinguish, those damages.  The [...] should not be absolved of liability simply because [...] chose to take certain actions to protect itself from any further interference by the [...], [...] or anyone else.  [...] has never been accused of corporate waste or breach of fiduciary duty by its congregants or directors.  In fact, the congregation has been most pleased with [...]’s success in securing the Share.  Moreover, the propriety of [...]’s actions taken by its directors was never an issue before the Trial Court.  In its holding that the subsequent transfer to [...] was somehow improper, the Trial Court in essence shifted the burden to [...] to defend its actions when no individual or entity with the requisite standing to assert a claim of corporate waste has ever done so.  In fact, the record at trial does not factually support any claim that the transfer constituted corporate waste.
[brief] In Marmo, this Court found that Marmo’s pleadings “strongly” weighed as a “factor in favor of waiver.”  Id at 613.  In so finding, this Court paid close attention to Marmo’s Rule 4:5-1(b)(2) Certification which stated that no arbitration was pending and that “to the best of its belief” none was contemplated.  Id.  As previously noted, Marmo’s pleadings, including the Rule 4:5-1(b)(2) Certification, were prepared by its attorney.  By contrast, in this case [...], as a pro se litigant, chose to file an Answer using the Superior Court’s Form A answer found on the Court’s website.