ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] [...] and his mother [...] ([...] or collectively, the landlords), owned a three-unit residential building in Columbia.  Plaintiffs resided in the third-floor apartment; [...] resided in the second-floor apartment; and [...] resided in the first-floor apartment with his four Neapolitan Mastiff dogs.  The property's backyard was available to all the tenants.  On July 8, 2004, [...], then five [*3] years old, tripped over a stick in the backyard and fell down.
[brief] However, it should be noted that the defendant's Sixth Amendment claim on PCR that his trial attorney was ineffective for failing to file a suppression motion for the sneak and peek and failing to be properly prepared to argue such a motion is not the Fourth Amendment claim raised on direct appeal challenging the sneak and peek.  See State v. Johnson, 365 N.J. Super. 27 (App. Div. 2003), where the Appellate stated:  First, we reject outright the State's counter-argument that defendant waived his Sixth Amendment claim of ineffective assistance of counsel by not litigating below his Fourth Amendment claim to suppress the handgun found in his possession.  There is absolutely no merit to the contention that defendant should not be allowed to vindicate on appeal his constitutional right to effective assistance of counsel where counsel's primary error is failure to make a timely request for the exclusion of illegally seized evidence that is often the most probative information bearing on the defendant's guilt or innocence.  Although failure to move to suppress evidence constitutes a waiver of any objection at trial to the admission of evidence on the ground that it was unlawfully obtained, R. 3:5-7(f); State v. Cox, 114 N.J. Super. 556, 559-60 (App. Div.), certif. denied, 58 N.J. 93 (1971), and of the right to question the search on appeal on Fourth Amendment grounds, State v. Robinson, 224 N.J. Super. 495, 499 (App. Div. 1988), this procedural bar does not extend to Sixth Amendment claims of ineffective assistance of counsel where based on counsel's very failure to timely file a suppression motion.
[brief] \(^3\)  Between April 20, 2023, and February 12, 2024, student-petitioners’ attorneys sent 15 communications to the Acting Commissioner seeking a timetable for the court-ordered remand process, compliance with the specific terms of the remand order, expedited action, and identification of the Acting Commissioner’s attorneys for the remand process.  These communications included emails, letters and formal motions.  They preceded and followed this court’s November 27, 2023, order granting student-petitioners’ motion in aid of litigants’ rights and ordering the Acting Commissioner to comply with the remand order by April 1, 2024.
[brief] Where “parties specifically used the term, ‘shall,’” in an agreement, it conveys “they intended [such] provisions . . . to be mandatory,” whereas “use of the permissive term, ‘may,’” by contrast, “underscore[d] their intention that the . . . provision was permissive. ”  *Medford*, 459 N.J. Super. at 12.  Under these and similar precedents, the “Landlord shall pay” language in § 4.02 is “mandatory and not merely permissive.
[brief] The prosecutor vetoed and the Court deferred to the prosecutor.  Both reasoned, in writing, defendants with “mental illnesses” are only offered “mental illness probation” because “these people” need to stay on the State’s “Radar Screen” longer.  See, e.g., Pa130-133 (Conf.) (Discriminatory Explanation of Veto on Pa132 (bottom)-133).  People in PTI have no “record” upon completion.  Apparently, the conviction is an important part of the “Radar,” keeping “the mentally disabled” “on the map” for years.  Pa29, ¶131.  This practice is per se illegal under the NJ Law Against Discrimination, N.J.S.A. 10:5-12(1) to (42) and voluminous state policies.
[brief] (Pa79 to Pa81).  Plaintiff is also mistaken in its attempt to rely upon Weeden v. City Council of the City of Trenton, 319 N.J. Super. 214, 228 (App. Div.), cert. den. 192 N.J. 73 (2007), which Plaintiff relies upon for the general proposition that the LRHL does not supersede the MLUL.
[brief] [Pa1001 at 36:22 – 37:1].  The Landlord’s principal testified at deposition that the Landlord’s duty was to remove snow from the parking lot:  Q.  Since 1980, has it been your responsibility as the owner of the strip mall to make sure there is no dangerous snow and ice conditions in your parking lot at this strip mall; yes or no?  A.  Yes.  Q.  You also have leases with the tenants that if there was a problem, and you didn't fix it, they would have to step up and take care of snow and ice removal issues?  [Objections made by all tenant defendants and the question is read back].  A.  In the contract, it says that I am the one, I take care of the parking lot.  If there is any problem, they will call me.  And they never did it.  Nobody did it.  [Pa1002 at 184:3 – 185: 3].
[brief] *Midland Funding LLC v. Thiel*, 446 N.J. Super. 537, 549 (App. Div. 2016) (quoting *Douglass v. Convergent Outsourcing*, 765 F.3d 299, 303 (3d Cir. 2014)).  The first three elements determine whether the FDCPA applies to the debt collector’s conduct and the last element determines whether that conduct violates the consumer’s statutory rights.  Here, Defendant does not challenge that the Plaintiff is a consumer, Defendants are debt collectors, and that Defendant’s conduct involves an attempt to collect a covered debt.  Instead, the dispute is over the fourth element: whether Defendant violated a provision of the FDCPA.  As for damages, Plaintiff seeks statutory damages which are limited to a maximum of $1,000 for the Plaintiff and 1% of Defendant’s net worth for the class.  § 1692k(a).  Plaintiff’s damages are based on consideration of three factors which are “the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional. ”  15 U.S.C. § 1692k(b).  The Class’s damages involve consideration of those three factors as well as “the resources of the debt collector, [and] the number of persons adversely affected. ”  Id.  Additional factors may be considered.  Id. C.  The Bar Against Third-Party Communications.
[brief] (T. at 9:12-10:1).  The trial court repeatedly stated throughout its decision that the Limited Attorney Exemption is “presumed to be constitutional” and that Plaintiffs failed to meet their supposed “heavy burden” to overcome this presumption.  The trial court’s application of this presumption is erroneous because the Limited Attorney Exemption restricts a constitutionally protected right.  The New Jersey Supreme Court has held that “if an enactment directly impinges on a constitutionally protected right, the presumption in favor of its validity disappears. ”  Bell v. Stafford Twp., 110 N.J. 384, 395 (1988) (emphasis added).  In those situations, “[c]ourts are far more demanding of clarity, specificity and restrictiveness with respect to legislative enactments that have a demonstrable impact on fundamental rights. ”  Id. at 395; see also Planned Parenthood of Cent. N.J. v. Farmer, 165 N.J. 609, 612 (2000) (asserting that “when legislation impinges on a constitutionally protected right, we have looked more closely at the State’s purported justification”).  Courts require the enactor of such legislation to “shoulder the burden of proving its constitutional validity. ”  Bell, 110 N.J. at 395.  In Bell, the Supreme Court found no presumption in favor of the validity of a township ordinance prohibiting billboards within any township zoning district, as it encroached on a fundamental constitutional interest -- freedom of speech and expression -- and struck down the ordinance as facially unconstitutional.  Id. at 398; see also Planned Parenthood, 165 N.J. at 612 (finding statute that conditioned a minor’s right to obtain an abortion on parental notification unless judicial waiver was obtained, but imposed no corresponding limitation on a minor who sought medical care otherwise related to her pregnancy, violated the State Constitution).  As discussed herein, the Supreme Court’s right to be the exclusive regulator of attorneys engaged in the practice of law, and an attorney’s right to not have their right to practice law under their plenary license issued by the Supreme Court unilaterally stripped away by enacted legislation, are constitutionally protected rights upon which the Limited Attorney Exemption impinges.  As a result, the trial court erred by applying a presumption of constitutionality to the Limited Attorney Exemption and placing a heavy burden on Plaintiffs in this case.  B.  The Trial Court Improperly Dismissed Count One Of Plaintiffs’ Complaint In Holding That the Limited Attorney Exemption Does Not Violate the Separation of Powers Doctrine.
[directive] It is strongly recommended that the copy provided to the court be treated in the same manner as a presentence investigation report.  See State v. DeGeorge, 113 N.J. Super. 542, 544 (App. Div. 1971) (presentence reports should not be a matter of public record and should be filed with a notation that they are for the confidential use of the court).  The worksheet reproduced in Appendix IC bears a “confidential” watermark and this form should be used whenever a Downward Departure for Substantial Cooperation is made.  The Brimage software issued by the [...] will automatically include a “confidential” watermark on the computer generated worksheet when this feature is used.  Finally, it should be noted that the worksheets and appended schedules are designed to facilitate the process of determining an authorized plea offer.  The worksheets concisely summarize some, but not necessarily all, of the rules, procedures, criteria, conditions and definitions set forth in these Guidelines.  The worksheets are provided for the convenience of prosecutors and do not in any way amend or supersede the provisions of these Guidelines.  These Guidelines should be consulted to resolve any questions concerning how to complete a worksheet and determine an authorized plea offer.  Page 37  [...] 2 (2004 Revisions)
[brief] Ten Stary Dom P’ship v. Mauro, 216 N.J. 16, 33 (2013).  The trial court’s decision to uphold the Zoning Board’s decision is an issue of law that must be reviewed de novo.  See Gallenthin Realty Dev., Inc. v. Borough of Paulsboro, 191 N.J. 344, 358 (2007); see also Hodges v. Sasil Corp., 189 N.J. 210, 220–21 (2007) (the New Jersey Supreme Court reviewing the Appellate Division’s statutory interpretation de novo); Balsamides v. Protameen Chems., Inc., 160 N.J. 352, 372 (1999) (“[M]atters of law are subject to a de novo review.
[brief] In Kalway, the Arizona Supreme Court considered a homeowners’ association’s authority to amend its “covenants, conditions, and restrictions” pursuant to a declaration empowering the association to amend them by “majority vote of the owners. ”  Id. at 22.  The association amended the restrictions, without the plaintiff’s knowledge, and limited his ability to convey or subdivide his lot, among other things.  Id. at 23.  The Arizona Supreme Court concluded that a homeowners’ association “cannot create new affirmative obligations where the original declaration did not provide notice to the homeowners that they might be subject to such obligations.
[brief] See Roa, 200 N.J. at 575-76.  Applying the Roa holding to the instant matter, notwithstanding that Plaintiff’s claims as to defendants [...] and [...] should be dismissed because Plaintiff does not allege that she was subjected to an adverse employment action as a result of the investigation and because their only involvement in the matter was the authorization of an investigation they were duty-bound to authorize, dismissal of the claims should also be affirmed because the “petty slights” and “minor annoyances” Appellant alleges in her Complaint do not, as a matter of law, rise to the level of “materially adverse” actions.  The trial court properly dismissed Plaintiff’s LAD claims as to defendants [...] and [...] as a matter of law pursuant to Rule 4:6-2(e).
[brief] The Denial Order correctly denied Defendant-Respondent, [...]’s (“Respondent”), untimely Motion to Vacate the default judgment entered against him in the Collection Action (later defined herein).  After briefing and a plenary hearing, including the calling of Appellant as a witness, the Lower Court correctly held Appellant’s willful delay in moving to vacate its default invokes the doctrine of laches and, therefore, Appellant’s Motion to Vacate must be denied.  Indeed, Appellant’s Motion was not filed within a reasonable time, the Judgment is not void due to insufficient process, and the NJCFLA claims lack merit.  For all these reasons, the Lower Court did not abuse its discretion in denying Appellant’s Motion to Vacate and this Court should affirm the Denial Order.
[brief] ”  *N.J.S.A. 2C:20–2b(2)(a) and (3). *  “Amount involved” is defined in the Code's definitional section as “the fair market value at the time and place of the operative act. ”  *N.J.S.A. 2C:1–14m.*  Whereas the shoplifting statute is silent as to whether sales tax should be taken into account in determining the full retail value, the general theft statute provides that the “amount involved” in a theft “shall include, but shall not be limited to, the amount of any State tax avoided, evaded or otherwise unpaid, improperly retained or disposed of.
[brief] ”  *Pinelands Pres. Alliance v. N.J. Dep’t of Env’t Prot.*, 436 N.J. Super. 510, 524 (App. Div. 2014).  Thus, a court will not reverse an agency decision “because of doubts as to its wisdom or because the record may support more than one result. ”  *In re N.J. Pinelands Comm’n Resolution*, 356 N.J. Super. 363, 372 (App. Div. 2003).
[brief] The judge explained that these crimes were independent of each other, and involving distinct harms and time periods, constituting justification to deny merger consistent with the Davis\(^4\) factors.  Double jeopardy principles are not offended by denying merger for these concurrent fourth-degree sentences imposed based on the instant facts.  Our courts have rejected “technisms and inflexibility” when resolving merger issues.  State v. Cole, 120 N.J. 321, 326 (1990); State v. Davis, 68 N.J. 69, 81 (1987).
[brief] (10T 31-6 to 11, 31-12 to 19)  As a condition of his guilty plea, [...] was required to testify “truthfully” against [...], which meant that [...] was supposed to testify consistently with his second statement to police in which he implicated [...].  (10T 31-24 to 32-4, 32-8 to 13)  [...] received a similar plea agreement which also required him to testify “truthfully” against [...].  (10T 90-2 to 16)
[brief] Because Appellants’ policy discriminated on the basis of protected characteristics, the Attorney General and the Director of the Division on Civil Rights (DCR) filed an administrative complaint alleging LAD violations.  The Attorney General and the Director also sought relief from the Superior Court to preliminarily enjoin enforcement of the policy, and thus maintain the status quo, pending resolution of that action.  And while Appellants revised their policy, purportedly to cure the underlying LAD violations, the issue persisted: Appellants never denied that their students’ gender identity or sexual orientation would remain a key factor that could still require affirmative parental notification, and they continued to argue that such notifications are necessary to vindicate fundamental parental rights.  Because Appellants’ Revised Policy thus functioned as the Original Policy did, the State filed an amended complaint and an amended request to preliminarily enjoin both policies.  [...] did not abuse his discretion in enjoining these policies while DCR resolves the pending administrative proceeding.
[brief] In fact, [...] testified to the validity of the surveying methods performed and described by [...] and reviewed by [...] and [...].  Plaintiffs-Appellants also had the opportunity to call an expert witness, or professional surveyor as a rebuttal witness to the testimony and surveying methods presented and attested to by [...].  Plaintiffs-Appellants failed to either adequately raise issues as to any possible surveying or mathematical deficiencies in the Commissioners’ Report or utilize its witnesses/ potential witnesses to dispute [...]’s professional expertise, credentials, or surveying methods as applied to the Report.  Plaintiff-Appellants failed to present any evidence or testimony to the Trial Court which would undermine the validity or accuracy of the Boundary Commission’s Report or ultimate determination that the Worley Survey properly identifies the true location of the Boundary Line Dispute.  Thereby, the Trial Court did not have any independent basis on which to deny the Commission’s Report as “final and conclusive as to all parties. ”  N.J.S.A. 2A:28-2.  POINT III
[brief] \footnote{At the time of the motion, the State was specifically addressing the fact that defendant planned on calling the three officers who made these additional stops (9T 66-14 to 17), but, obviously, the court’s ruling also served to bar defendant himself from mentioning his conduct at those other stops when he testified.}  When asked by the judge for the legal basis to present such evidence, defense counsel replied that it was evidence of defendant’s “habits. . . when he was stopped. ”  (9T 69-1 to 3)  (emphasis added)  Nevertheless, the judge barred the evidence, holding it to be inadmissible and irrelevant.  (9T 69-18 to 71-4)  Because, in fact, the judge viewed the admissibility of competent habit evidence far too restrictively, and the improper exclusion of such evidence in this case cannot be deemed to be harmless beyond a reasonable doubt, defendant’s conviction must be reversed and the matter remanded for retrial.  The ruling was contrary to N.J.R.E. 406, as well as violative of defendant’s Sixth Amendment right to present a defense, his Fourteenth Amendment right to due process and a fair trial and his corresponding rights under the state constitution.
[directive] All property and evidence must be identified and marked to insure that it can be identified in the future.  In addition, the property must be securely packaged to preserve the contents and prevent accidental loss or deliberate tampering.  Methods of marking and packaging property will vary from department to department.  It is important that the department's methods are consistent and clearly defined by written policy.  It is essential the methods for marking and packaging property be in conformity with accepted practice.  The Evidence Manual published by the Division of State Police Special and Technical Services Section is an excellent source of information concerning the marking and packaging of property and evidence.  10
[brief] N.J.A.C. 7:7-12.5(b)9.  The record reflects that [...] and [...] made every effort to ensure compliance.  Appellant’s assertion that [...]’s dock was wrongfully permitted is unsupported and Appellant has presented no evidence to support that there was any alternative location for the dock which would have met [...]’s 4 ft. requirement for the mooring area at the end of the dock.  In connection with [...]’s application for the 2017 WFD Permit, [...] reviewed and addressed navigability and compliance with N.J.A.C. 7:7-12.5(b)9 and found, after reducing the size of [...]’s dock by nearly 18 ft., that [...]’s dock met all of the CZM Rules.
[brief] In explaining its reasons for rejection of the plea bargain, the court stated: “Due to their [referring to both [...] and defendant] conduct in court as well as the severity of ... each and every one of the armed robberies. ”  Although the trial court should have given a fuller statement of reasons, we conclude that the court did not abuse its wide discretion in rejecting defendant's original plea bargain with the State.  The presentence report disclosed that there were aggravating circumstances with respect to a number of the robberies that were not revealed by the factual bases defendant provided at the plea hearing held on May 22, 2006.  For example, defendant testified in giving the factual basis for his guilty plea to the robbery of the [...] in [...] that he did not use an actual gun in that robbery but only simulated possession of a gun.  However, the presentence report indicated that defendant not only possessed an actual gun in that robbery but that he had struck [...] on the side of the head with the gun, causing him to lose a tooth.  The presentence report further indicated that defendant had inflicted physical harm upon a number of other victims by striking them in the head or face with a gun or punching them.  In addition to these aggravating circumstances of several of the robberies disclosed by the presentence report, the trial court properly took into consideration that when defendant appeared for sentencing on August 25, 2006, he failed to show any remorse for the crimes he had committed, instead treating the proceedings as if it were a joke by “smirking” at the trial court, and when the court commented upon his bad attitude, stating “It's funny. ”  Such absence of remorse was an appropriate consideration, together with defendant's acts of physical violence toward the victims of some of the robberies, in the court's decision to reject defendant's plea bargain with the State.
[brief] All four of them drove around in the Durango for a while before returning to [...].  At some point, [...] showed them a gun and said that he had [...]’s gun and car until she got out of work.  [...] said that he wanted to keep the gun and that he would kill [...] if she would not let him keep it.  According to [...], [...] said that instead [...] should let [...] kill [...].  Eventually, [...] and [...] drove off in a Kia Sedan owned by [...]’s girlfriend [...], and Cezar drove off in [...]’s Durango.  (11T105-1 to 106-1; 11T109-1 to 110-16).
[brief] This time he stated:  **THE WITNESS:** -- I'm having a problem here because I don't know if I am allowed to be sending internal documents from my company to just all these different people.  I really don't know.  I mean, I'm being put into such a position here as an insurance agent that I just don't know what to do without my own legal representation.  (21T 26, 15-21)  After [...] appeared frightened and announced that he might need his own legal representation, [...] stated: [...], you're only required to tell the truth.
[brief] This Court then articulated a pleading standard rooted in a long line of authority.  It held that to survive a motion to dismiss, a complaint must contain “allegations which, if proven, would constitute a valid cause of action. ”  Id. at 390 (quoting Kieffer v. High Point Ins. Co., 422 N.J. Super. 38, 43 (App. Div. 2011) and Leon v. Rite Aid Corp., 340 N.J. Super. 462, 472 (App. Div. 2001)).  The Neuworth Court then applied these settled principles to the element of actual malice, required for any defamation claim arising from statements on matters of public concern.
[brief] ” (citing sources))  [Da563].  For example, in *Knecht v. 225 River St., L.L.C.*, the Appellate Division affirmed the trial court’s decision to set aside an arbitrator’s award that found that the plaintiff was entitled to the return of her deposit in a failed real estate transaction.  *Id.* at *1 [Da553-54].  The Appellate Division affirmed the trial court’s finding that the arbitrator exceeded the scope of his authority by making “a better contract for plaintiff than that for which she bargained. ”  *Id.* at *4 [Da555].  Specifically, the arbitrator “add[ed] new terms[,] looked beyond the four corners of the agreement and altered unambiguous terms” by ignoring the specific time limitations expressly stated in the parties’ agreement concerning plaintiff’s ability to obtain a mortgage or the return of her deposit.  *Id.* at *3 [Da555]; see also *Pepper ex rel. Pepper v. Sadley*, No. A-3459-11T2, 2013 WL 2257842, at *2 (N.J. Super. Ct. App. Div. May 24, 2013) (“Arbitrators exceed the scope of their powers when they disregard the terms of the parties' contract or rewrite the contract for the parties.