ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] \textbf{CONCLUSION}  For the foregoing reasons, it is respectfully submitted that this Court should reverse the Trial Court’s Orders granting the Defendant’s motions to dismiss under R.4:6-2(e) and denying the Plaintiffs’ cross-motion for summary judgment, and remand the matter to the Law Division with directions to enter an Order granting to the Plaintiffs the relief requested in the Conclusion to their original Brief.
[brief] *Id.* at 1860-61 ([...], C.J., concurring).  On this point, Chief Justice [...] drew upon the principal dissent by Justice [...], who noted that “[i]n any case that has not become final, the relevant appellate court can apply harmless-error analysis. ”  *Id.* at 1866 (Kavanaugh, J. dissenting).  The lower court assessed a defendant who was previously convicted of three burglaries committed on different dates against different victims at different locations.
[brief] This Court need not, should it so determine, decide the State Constitutional limits, expanded or same, as to the Federal curtilage prohibition or the GPS parameters, impacting an individual’s expectation of privacy.  The State’s brief in opposition implicates at least two issues: any State Constitutional limits, either expanded or simply similar, to that reflected in the Federal Supreme Court’s sphere may (or may not) be determined by this Court.  That determination could very well coincide with any Federal curtilage prohibition.  This State’s constitutional GPS parameters, procedural or otherwise, which would supplement one’s Federal expectation of privacy may well expand or replicate that Federal analysis or any expansive impact on New Jersey’s expectation of privacy, *State v. Adkins*, supra.  POINT III
[brief] For the reasons set forth above, [...] and [...] respectfully submit that the trial court’s Order granting summary judgment and dismissing all claims against them with prejudice should be affirmed.  [...]  Attorneys for Respondents  [...] and [...] LLP  By: /s/ [...]  [...], Esq.  Dated: April 26, 2023  [...], [...] [...], and [...], Plaintiffs/Appellants, v. [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; JOSEPH ROCCO, ESQ.; [...]; and ABC CORPORATION 1-10, JOHN DOES 1-10, and JANE DOES 1-10 (names being fictitious as true identities are unknown), Defendants/Respondents.
[brief] (Pa37)  The interim award also directed the [...] -- without contractual authorization or cited precedent -- to pay the entire arbitration fee to the Arbitrator, and further required [...] in turn to reimburse the [...] for [...]’s portion of the Arbitrator’s fee by check payable to the [...].  (Pa38)  In doing so, [...] ignored the plain language of the CBA stating that “the cost of the arbitrator shall be borne equally by the [...] and the Authority and all other expenses incurred by either side, including the presentation and witness, will be borne by the party incurring same. ”  (Pa49)  Thus, in addition to a decision that, once again, created a new and unprecedented work rule divorced from the CBA’s plain language, the Arbitrator fashioned an unusual and unauthorized payment procedure without any basis in, and in fact directly contradicting, the CBA.
[brief] (4T:65-8 to 12; 70-13 to 71-3).  On March 17, 2023, defendant filed a Notice of Appeal with the Superior Court, Criminal Division.  (Da87).  Defendant also filed an Order to Show Cause to stay the tattoo requirement pending appeal.  (Da92).  On April 3, 2023, [...] issued a temporary stay of the tattoo requirement.  (Da119).  On August 3, 2023, the municipal appeal was argued before [...], J.S.C.  On August 21, 2023, the Court affirmed the municipal court, vacated the stay on the tattoo requirement, and ordered defendant to make a genuine effort to tattoo [...] by September 21, 2023.
[brief] ’”  Fuentes, 217 N.J. at 79 (quoting Jarbath, 114 N.J. at 405).  Generally, to sustain a finding of aggravating factor nine, a court must explain “what special need for deterrence or non-depreciation of the offenses differentiates this case from other cases” of the same class or category.  Martelli, 201 N.J. Super. at 385-86.  A court cannot simply rely on the need to “send a message” to prevent other people in the community from committing the same crime.  See State v. Hooper, 459 N.J. Super. 157, 185 (App. Div. 2019) (reversing because the trial court “failed to explain how its expressed desire to make defendant’s sentence an extreme example so as to serve as a warning for others was consistent with a ‘focus on the fairness of the overall sentence’”) (quoting State v. Miller, 108 N.J. 112, 121 (1987)).  Accordingly, the Court’s exclusive reliance on general deterrence to find aggravating factor nine cannot be sustained.
[brief] Reply to Planning Board's Preliminary Statement ........................................  Prb2  Reply to Procedural History Statements ..................................................  Prb3  Reply to Counterstatements of Fact .........................................................  Prb3  Reply to Legal Argument  I.  REPLY TO DEFENDANTS' ARGUMENTS REGARDING THE GRANT OF VARIANCE RELIEF .........................................................  Prb6 II.  REPLY TO DEFENDANTS' ARGUMENTS REGARDING PUBLIC NOTICE  ......................  Prb8  Conclusion .............................................................................................
[brief] A plaintiff is barred from asserting a cause of action based on res judicata where: (1) a final disposition is reached on the merits in a prior action; (2) the prior action involved the same parties or their privies; and (3) the subsequent suit is based on the same transaction or occurrence as the earlier action.  See Watkins v. Resorts Int’l Hotel & Casino, Inc., 124 N.J. 398, 412 (1991); Velasquez v. Franz, 123 N.J 498, 505 (1991).  Notably, res judicata applies to all claims that were or could have been litigated in the prior action.  Woo-Padva v. Midland Funding, LLC, 2019 N.J. Super. Unpub. LEXIS 1735, 2019 WL 3540494 (N.J. App. Div. Aug. 5, 2019) (holding decision in prior collection action barred subsequent class action); VW Credit, Inc. v. Coast Auto. Group, Ltd., 2006 N.J. Super. Unpub. LEXIS 417, *11, 2005 WL 3750752 (Sup. Ct. N.J. App. Div. 2005).  And, as relevant here, res judicata also applies to a default judgment.  Koons v. Edpatco, Inc., 2007 N.J. Super. Unpub. LEXIS 2668, at *4, 2007 WL 2403545 (Sup. Ct. N.J. App. Div. Aug. 24, 2007) (“[f]irst, the default judgment, unless and until it is set aside, is res judicata with respect to the parties and the issues joined therein. ”).
[brief] “[P]rosecutorial misconduct can be a ground for reversal where the prosecutor’s misconduct was so egregious that it deprived the defendant of a fair trial. ”  State v. Frost, 158 N.J. 76, 83 (1999) (citation omitted).  Accord State v. Gorthy, 226 N.J. 516, 540 (2016).  When considering whether a prosecutor’s summation constitutes misconduct, the reviewing court must consider the tenor of the entire trial.  State v. Terrell, 452 N.J. Super. 226, 276-77 (App. Div. 2016).  A  “Prosecutors should confine their summations to a review of, and an argument on, the evidence, and not indulge in improper expression of personal or official opinion as to the guilt of the defendant, or [otherwise engage] in collateral improprieties of any type, lest they imperil otherwise sound convictions. ”  State v. Thornton, 38 N.J. 380 (1962).
[brief] There is no reason to address the arguments at Db38 to Db39.  The argument at Db39 to Db40 is repeating what was set forth at Db28.  Defendants were not in "peaceable possession" for purposes of a quiet-title action.  At Db41 to Db43, defendants argue that [...] engaged in the unauthorized practice of law by preparing the deed.  Even if that were true, it does not undo plaintiff's true ownership of the property and it does not vest title in the defendant.  The act of an unauthorized attorney is merely voidable, not void.
[brief] On the brief and of counsel: [...] (020042000)  [...]  [...]  [...]  Phone: [...]  Counsel for Plaintiffs  #  TABLE OF CONTENTS – BRIEF | Section | Page | |------------------------------------------------------------------------|------| | TABLE OF CONTENTS - BRIEF | i | | TABLE OF JUDGMENTS, ORDERS AND RULINGS | ii | | TABLE OF TRANSCRIPT DESIGNATIONS | ii | | TABLE OF CONTENTS - APPENDIX | iii | | TABLE OF AUTHORITIES | vi | | PRELIMINARY STATEMENT | 1 | | PROCEDURAL HISTORY | 2 | | STATEMENT OF FACTS | 6 | | LEGAL ARGUMENT | 32 | | **POINT I: THE ORDERS ON APPEAL ARE SUBJECT TO DE NOVO REVIEW.
[brief] Specifically, as set forth in L.I.M.A. Partners, 219 N.J. Super. at 519-520, the Appellate Division held that a zoning board’s denial of a variance was merely conclusionary and that the board statements contained in the transcript of the proceedings were an inadequate substitute for appropriate findings of fact and conclusions of law.  Id.  When a board denies a variance, it must set forth in a resolution a statement of the specific findings of fact on which the board reached the conclusion that the statutory criteria for a variance were not satisfied.
[brief] See R. 4:42-2; Lawson v. Dewar, 468 N.J. Super. 128, 134 (App. Div. 2021) (“Until entry of final judgment, only ‘sound discretion’ and the ‘interest of justice’ guides the trial court, as Rule 4:42-2 expressly states. ”); Sensient Colors, Inc. v. Allstate Ins. Co., 193 N.J. 373, 390 (2008) (“The determination of whether to grant a comity stay or dismissal is generally within the discretion of the trial court. ”).  Accordingly, this court should review the Judgment under an abuse of discretion standard.  See Sensient Colors, 193 N.J. at 389-90 (2008) (“A trial court’s decision to apply the doctrine of comity requires ‘a fact-specific inquiry that weighs considerations of fairness and comity,’ which we review under an abuse of discretion standard. ”); Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015) (“[A] trial court’s reconsideration decision will be left undisturbed unless it represents a clear abuse of discretion. ”).  As explained in detail below, the Judgment was a proper exercise of the trial court’s broad discretion, based on a rational, and well-thought out and explained, application of the facts to established law.  Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (“Although the ordinary ‘abuse of discretion standard defies precise definition, it arises when a decision is ‘made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis. ”).  ARGUMENT I.
[brief] 366, 378, 658 A.2d 1230 (1995) | | | State v. Koskovich, | 36 | | 168 N.J. 448, 486 (2001) | | | State v. Thompson, | 36 | | 59 N.J. 396, 569 (1971) | | | Seoung Ouk Cho v. Trinitas Reg'l Med. Ctr., | 25 | | 443 N.J. Super. 461, 472 (App. Div. 2015), certif. denied, 224 N.J. 529 (2016)  | | | Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, | 24 | | 224 N.J. 189, 199, 129 A.3d 1069, 1075 (2016) | | | W.J.A. v. D.A., | 23 | | 210 N.J. 229, 237–38, 43 A.3d 1148 (2012) | | | Vill. of Ridgewood v. Shell Oil Co., | 28, 29 | | 289 N.J. Super. 181, 195-96 (App. Div.  1996) | | | Rules | | | N.J.R.E 104(a) | 34 | | N.J.R.E. 401 | 34 | | N.J.R.E. 403 | 35, 36 | | N.J.R.E. 403(b) | 36 | | N.J.S.A. 2A:25-1 | 27 |  INTRODUCTORY STATEMENT
[brief] For example, in order for defendant to be eligible for an extended term as a persistent offender, N.J.S.A. 2C:44-3a requires in pertinent part that he must have “been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age…”  If defendant were successful in negotiations by getting the State to downgrade the charge contained in Count Five of [...] from the third-degree crime of “[r]ecklessly causes bodily injury to another with a deadly weapon” N.J.S.A. 2C:12-1b(3), to the disorderly persons offense of “[n]egligently causes bodily injury to another with a deadly weapon” N.J.S.A. 2C:12-1a(2), he would no longer be eligible as a persistent offender as he would no longer have been guilty of committing “two crimes. ”  See N.J.S.A. 2C:1-4b (“Disorderly persons offenses and petty disorderly persons offenses are petty offenses and are not crimes within the meaning of the Constitution of this State. ”)  In that case, defendant’s aggregate sentence on [...] would go from 50 years with an 85% parole bar on the armed robbery conviction to 30 years with an 85% parole bar on the kidnapping conviction.  F.
[brief] [...] testified that he had worked with [...] prior to July 11, 2014.  Pa1425.  [...] further testified, "He’s just a dangerous operator.  * * *  He moved around a lot faster than other sweeper drivers.  And he always had his back broom down when he was backing up, which I wasn't used to.  * * *  Drove around faster.  Backed up faster.  Turn around faster. ”  *Ibid.*  [...] had heard [...] complain about [...] approximately three or four times.
[brief] However, Plaintiff argues that “railroad property” under (b)(5) “[r]efers to railroad real estate or real property” and that it does not include [...]’s “railroad right of way”.  Pb3, 22.  Plaintiff does not provide any authority for this conclusion as to how railroad property must be defined.  Instead, Plaintiff cites to ancient case law interpreting the statute long before it was substantially amended by the Legislature in 1998 as proof that the phrase “the property of a railroad” cannot include a “railroad right of way”.  Plaintiff’s argument is that the phrase “railroad right of way” cannot be included in the meaning of “the property of any railroad”, because prior to the 1998 amendments, the immunity statute was never interpreted to apply to claims involving collisions that occurred at railroad crossings.  Pb18-19.  However, Plaintiff ignores the Legislative history as well the specific language that was changed by the 1998 amendments, which nullify this argument.  Before it was amended in 1998, N.J.S.A. 48:12-152 read as follows:  It shall not be lawful for any person other than those connected with or employed upon the railroad to walk along the tracks of any railroad except when the same shall be laid upon a public highway.
[directive] 40-4  If any local unit does not carry out the provisions of this chapter by reason of the failure of the governing body thereof to institute and complete such audit within the time provided herein, the director may, by his employees and agents or by auditors employed for that purpose, conduct an audit of the books of such local unit and such audit shall be taken to be the statutory audit of the local unit and shall be paid for by the local unit on bill rendered therefor.  For the services of the said director, or his employees or agents, or the pay of the auditors employed by him, whether permanent employees of the division or not, there shall be paid to him by the local unit for deposit in the State treasury, a per diem allowance not to exceed $75.00 for each person for work done in connection with the audit or examination of the accounts.
[brief] A.  Defendants violated the Takings Clause of the New Jersey Constitution by depriving Plaintiffs of their previously vested property rights.  (1029a-1031a); (1T13:3-21; 1T14:7-15:2; 1T20:6-22; 1T21:3-15; 1T22:1-24; 1T22:25-23:10)………………………………………24  i.  Plaintiffs [...] and [...] both retired before Defendants' initial effective date of March 15, 2017.  (1029a-1031a); (1T13:3-21; 1T14:7-15:2; 1T20:6-22; 1T21:3-15; 1T22:1-24; 1T22:25-23:10)…………………………………………………………30  ii.  Plaintiffs [...], [...], [...], and [...] retired before the Trial Court lifted its temporary restraints against Defendants on June 7, 2017, which was Defendants' second implementation date.  (1029a-1031a); (1T13:3-21; 1T14:7-15:2; 1T20:6-22; 1T21:3-15; 1T22:1-24; 1T22:25-23:10)……………31  iii.  Plaintiffs [...], [...], [...], [...], and [...] retired while the parties to the First Police Matter negotiated a settlement of that lawsuit which was ultimately settled on December 14, 2017.  (1029a-1031a); (1T13:3-21; 1T14:7-15:2; 1T20:6-22; 1T21:3-15; 1T22:1-24; 1T22:25-23:10)……………………………32  B.
[brief] Diller & Fisher Co. v. Architectural Review Bd., 246 N.J. Super. 362, 367–68 (Law Div.1990)  Dolan v. DeCapua, 16 N.J. 599, 612 (1954).  Faghiarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)  Fuchilla v. Layman, 109 N.J. 319, 334, cert. denied, 488 U.S. 826 (1988)  Griggs v. Zoning Bd. of Adjustment of Princeton, 75 N.J. Super. 438, 446 (App. Div. 1962).  Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 96 (1990)  Hernandez v. Region Nine Hous. Corp., 146 N.J. 645, 651-52 (1996)  I/M/O Tp. of South Brunswick, 448 N.J. Super. at 441, 467 (Law Div. 2016)  In re Adoption of Baby T., 160 N.J. 332, 340 (1999)  In re Camden Cnty., 170 N.J. 439, 449 (2002)  In the Matter of the Adoption of the Township of Monroe Housing Element and Fair Share Plan and Implementing Ordinances, Docket No. [...]  Kramer v. Board of Adjustment, Sea Girt, 45 N.J. 268, 296 (1965)  Kramer v. Sea Girt Board of Adj., 45 N.J. 268, 280 (1965)  Magliochetti v. State by Com’r of Transp. 276 N.J. Super 361, 371 (Law. Div., 1994)  Monell v. Department of Social Services, 436 U.S. 658 (1978)
[brief] (Da60).  Defendant’s arguments related to R. 4:50-1(d) and (e) are addressed above, as the claim that the judgment was void was based upon statutory interpretation.  As Plaintiff notes above, the clear language of the statute leaves this claim or defense unavailable to Defendant, who therefore cannot obtain relief under R. 4:50-1(d) - void judgment- or (e) - the judgment has been vacated or it is no longer equitable that the judgment should have prospective application.
[brief] (Da1).  The defendants again filed an answer with counterclaims and a third-party complaint.\(^8\) (Da497).  After additional fact and expert discovery relating to the matters in the Amended Complaint, the defendants moved to bar or limit the testimony of Plaintiffs’ accounting expert, [...], and for summary judgment.  On December 20, 2021, after extensive argument, the trial court denied the motion to bar or limit [...]’s testimony, and denied the summary judgment motion, except as to one discrete issue about whether [...] was entitled to allegedly unpaid compensation, which the trial court dismissed.
[directive] 21.  The indictment is not evidence of guilt.  It is simply a charging document.  Would the fact that the defendant has been arrested and indicted, and is here in court facing these charges, cause you to have preconceived opinions on the defendant’s guilt or innocence?  22.  I have already given you the definition of reasonable doubt, and will explain it again at the end of the trial.  Would any of you have any difficulty in voting not guilty if the State fails to prove the charge beyond a reasonable doubt?
[brief] A complaint was filed on July 19, 2022 as a result of Defendant’s refusal to honor it’s promise to reimburse plaintiff the cost of repairs in the aftermath of hurricane Ida on September 1, 2021 and Hon. [...] was assigned to the matter.  (Pa22)  On October 21, 2022  Defendant filed an answer, counterclaim jury demand and a discovery demand (Pa25) which was corrected on November 1 to a motion to dismiss w prejudice for failure to state a claim (Pa40) which Plaintiff opposed (Pa46) on December 1, 2022.  Oral arguments were held on December 6, 2022 and the complaint was dismissed without prejudice.  (Pa49)  On February 13, 2023 (Pa51)  Defendant filed a motion to dismiss with prejudice (Pa54) and on February 22, 2023  Plaintiff filed a cross motion to reinstate case and included an amended complaint.  Pa 56, 58)  On February 27, 2023  Defendant filed opposition to reinstatement.  On February 28, 2023 the clerk gave notice to dismiss due to a discovery delinquency.  On March 27, 2023 the court issued an Order denying the motion to dismiss due to a discovery delinquency (Pa67) and an Order to reinstate the case.(Pa69)  On April 18, 2023 Hon. [...] appointing Edward R.  Matthews to mediate and the following day a mediation notice was filed.  On May 17, 2023  Defendant filed a motion to dismiss with prejudice for discovery delinquency and a second motion to compel discovery both returnable June 9, 2023.  Discovery was sent in the form of a thumb drive via Fedex and on December 7, 2027  Defendant requested an adjournment request for one cycle to await the Fed Ex from Plaintiff which was denied  On June 9 and the court issued an Order dismissing complaint with prejudice (Pa70)  On June 12, 2023 the court issued a discovery end date reminder for August 17, 2023.  On June 28, 2023  Plaintiff filed a motion to reinstate case --- 1T refers to Transcript of Motion, dated December 6, 2022; 2T refers to Transcript of Motion, dated June 9, 2023; 3T refers to Transcript of Motion, dated July 24, 2023; 4T refers to Transcript of Motion, dated March 1, 2024.  and on July 12, 2023  Defendant filed opposition.  On July 21, 2023  Plaintiff requested an adjournment to August 1st which was denied and on July 24, 2023 the court entered an Order denying reinstatement.  (Pa88)  On February 14, 2024 [...] filed a motion to reinstate case (Pa89) and Defendant responded in opposition on February 22, 2024 resulting in the court issuing an Order on March 1, 2024 denying the motion to vacate the dismissal with prejudice from which Plaintiff filed this appeal.  (Pa1)  **STATEMENT OF FACTS**
[brief] Even if this court were to find that postcards were a required mode of notice under the Ricci Act, the Board substantially complied by mailing them within thirty-two (instead of thirty) days of the effective date of the statute.  To suggest that such a minimal delay in sending over 200,000 postcards somehow eliminates the statutory deadline for filing claims would be an absurd result, and one this court should not accept.  See Regis, 208 N.J. at 449 (“[w]hen construing a statute, ‘legislative language must not, if reasonably avoidable, be found to be inoperative, superfluous or meaningless. ’”) (citation omitted).  [...] further urges this court to permit him to file his untimely Form because he claims he did not actually receive the notice.  (Pb13).  But even if actual notice by postcard were an express requirement under the Ricci Act, this argument is misplaced.  New Jersey courts have consistently “recognized a presumption that mail properly addressed, stamped, and posted was received by the party to whom it was addressed. ”  SSI Medical Servs. v. HHS, Div. of Medical Assistance & Health Servs., 146 N.J. 614, 621 (1996).  Here, the postcard was undisputedly mailed to [...]’s home address.  (Pa14).  The Division went so far as to hire a company, [...], to mail postcards to all 200,647 SPRS retirees at their home addresses on file with the Division.  (Pa78-80).  And a postcard was indeed mailed to [...]’s last home address on August 9, 2019.  (Pa14; Pa80).  Nonetheless, [...] asserts, without offering any legal authority, that his affidavit declaring that he never received a postcard should overcome the presumption that he received it.  (Pb13).  Still, despite the Board’s having satisfied the notice requirement under the Ricci Act, it nevertheless considered [...]’s request under its inherent equitable power.