ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] However, both the trial court and defendants focused solely upon the statutory prohibition.  In addition, defendants failed to cite and discuss two recent intervening conflict of interest cases: State v. Dana Kearney, __N.J. Super.__ (App. Div. Sept. 18, 2024) and [...] v. [...], [...] (App. Div. Aug.  In [...], [...], [...] and [...] affirmed a bench trial judgment finding no alleged ethical violations and dismissing the prerogative writ complaint with prejudice.  But [...] restated the following governing legal principles:  The Ethics Law creates a statutory code of ethics that governs when a disqualifying conflict of interest arises for a local government official.  So, the Ethics Law and the common law guide courts in evaluating when conflicts arise.  See, Piscitelli v. Garfield Zoning Bd. of Adjustment, 237 N.J. 333, 349-50 (2019); Grabowsky v. Township of Montclair, 221 N.J. 536, 552 (2015).
[brief] [...] was employed at the [...].  Upal testified that on January 5, 2012, at approximately eleven o’clock in the morning two men walked into the store and one of them asked for a cell phone case.  Upal stated one man had a lighter complexion and was wearing a hoodie and jeans.  Upal stated the other man was a darker complexion, slimmer and was wearing a hoodie with red thread.  Upal directed the men to the cell phone cases, but was suddenly grabbed and pushed by the slimmer man towards the back room of the store.  Upal stated the man who grabbed him held a gun to the back of his head and ordered him to open the safe.  Thereafter, the men began collecting the cell phones and placing them in large black plastic bags.  Upal recalled the men were wearing clear, translucent gloves.  He also testified the slimmer man was on his cell phone, and he heard him say, “Okay, I’m hurrying up. ”  After filling the bags with cell phones, the men asked Upal where the cash was and took it.  They then lead Upal to the back room, where they told him to remain until they left.  Upal testified they exited from the rear of the store and he heard a car drive by as they left.
[brief] (Pa101-02; 1T90:10-15).  Then in 2015, following the Board’s affirmance of the [...]’s determination that [...] was ineligible for PERS for her service at [...] because she was hired under a professional services contract, [...] passed an ordinance designating Municipal Prosecutor as an employee position.  (1T92:23-94:6; Ra4-17).  On January 6, 2015, [...] sent a letter to the Attorney General’s Office indicating that [...] had been hired as an employee of [...] in the position of Municipal Prosecutor.
[brief] Standard of Review  While the court should not substitute its judgment for a land use board’s, *Rocky Hill Citizens v. Planning Board*, 406 N.J. Super. 384, 411-412 (App. Div. 2009), the review is “not simply a pro forma exercise in which [the court] rubber stamp[s] findings that are not reasonably supported by the evidence. ”  *CBS Outdoor, Inc v. Lebanon Planning Bd.*, 414 N.J. Super. 563, 578 (App. Div. 2010), quoting *Chou v. Rutgers, State University*, 283 N.J. Super. 524, 539 (App. Div. 1995), certif. denied, 345 N.J. 374 (1996).  The court must determine whether the board has followed the statutory guidelines and properly exercised its discretion.
[brief] At approximately 2:54 a.m., [...], [...], who was the department's evidence technician, and Sergeant [...], of the [...], returned to [...] to search for evidence.  [...] testified at trial that the building looked abandoned, the rear door was unlocked, and that after they entered, they saw in plain view at the top of the stairs, a black and white varsity-style jacket, a handgun, a mask, and a brown wallet.  The handgun contained six .22 caliber hollow-point bullets.  The wallet contained [...]'s identification and $138 in cash.  At trial, [...] and [...] identified the jacket as the one they saw defendant wearing, and [...] identified the mask as the one she saw defendant wearing.  [...], the State's DNA expert, testified that DNA testing could not be performed on the jacket because the samples were not of high enough quality but defendant's DNA (as a major contributor) was found on the mask, along with the DNA of two other individuals, who were minor contributors.  *4  On July 12, 2017, an Essex County grand jury indicted defendant for: first-degree robbery, in violation of N.J.S.A. 2C:15-1 (count one); second-degree unlawful possession of a weapon (handgun), in violation of N.J.S.A. 2C:39-5(b) (count two); possession of a firearm for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a) (count three); second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(1) (count four); third-degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(2) (count five); fourth-degree aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(4) (count six); fourth-degree possession of hollow-nose bullets, in violation of N.J.S.A. 2C:39-3(f) (count seven); third-degree receiving stolen property (a handgun), in violation of N.J.S.A. 2C:20-7(a) (count eight); and third-degree theft by unlawful taking, in violation of N.J.S.A. 2C:20-3(a) (count nine).  On January 8, 2018, the trial judge denied defendant's pre-trial motion for a Wade/Henderson hearing that challenged the admissibility of [...]'s out-of-court identification of defendant.  At the conclusion of a pre-trial hearing on March 29, 2018, the judge also denied defendant's motion to suppress the physical evidence—the handgun, jacket, mask, cigarette lighter, and wallet—found during a warrantless search of [...] that the State alleged was an abandoned property.
[brief] The transcripts of trial are found at 3T, 4T and 5T respectively.  During jury selection on July 11, 2023, one of the Court’s officers brought actions by Plaintiff to the trial judge’s attention.  6T.54:11 to 56:3.  No contemporaneous record was made of the Court Officer’s observations or the Court’s and/or counsel’s response thereto.  During Plaintiff’s trial testimony on July 12, 2023, the trial court sua sponte instructed Plaintiff to limit his movements about the court room.  3T.50:22 to 51:14.  On July 14, 2023, the jury returned a verdict in favor of Plaintiff.
[brief] (See Db35.)  Courts routinely enforce contractual provisions awarding counsel fees to a party that prevails in a dispute concerning that contract.  See Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 385 (2009) (“‘a prevailing party can recover [attorneys’] fees if they are expressly provided for by statute, court rule, or contract. ” (quoting Packard-Bamberger & Co., Inc. v. Collier, 167 N.J. 427, 440 (2001))).  The prevailing party must demonstrate: (1) that the lawsuit was causally related to securing the relief obtained; and (2) that the relief obtained had some basis in law.  See North Bergen Rex Transport, Inc. v. Trailer Leasing Co., a Div. of Keller Systems, Inc., 158 N.J. 561, 570-71 (1999).  Paragraph 35 of the Settlement Agreement provides that, “[i]f any action, suit or legal proceeding is brought by any Party to enforce or redress a breach of this Agreement, in addition to all other relief awarded by a court of competent jurisdiction, the prevailing Party shall be entitled to an award of reasonable attorney’s fees and costs incurred in connection with such action, suit or legal proceeding[.]” (Da100a.)  Because the Trial Court correctly granted [...]’s requested relief in the Verified Complaint as to the Settlement Agreement, the Trial Court also properly awarded [...] his reasonable attorneys’ fees and costs in connection with that favorable ruling.
[brief] Defendants seek to have the Court reject this long line of cases as “dicta” from one case, *Natural Gas*.  Db32.  Given the sheer number of cases using this interpretive lens to determine whether a complaint is “based upon” or “substantially similar to” disclosed transactions, this is hardly “dicta. ”  Indeed, it is no more dicta than the analytic rubric of *United States ex rel. Springfield Terminal Ry. Co. v. Quinn*, 14 F.3d 645, 657 (D.C. Cir. 1994), on which Defendants rely.  Db27.
[brief] (885a – 886a; 1T, 81:18 – 82:5, emphasis added).  It is obvious that in denying Plaintiffs’ motion to amend in the 2015 Action, [...] never inculpated Plaintiffs or held that Plaintiffs should have attempted to file their Motion to Amend earlier in time, and certainly did not find that the new claims were barred by the dismissal of the previous claims.  Indeed, [...] specifically stated:  “And so again, and that is by no way should be interpreted as in -- as an indication that the Court is casting any type of critique against the plaintiffs.  The case evolved as the case evolved.
[brief] Lessee understands, agrees and acknowledges that he is responsible of [sic] any and all repairs to the demised premises and for cleaning the windows.  Lessee specifically agrees that he shall be responsible for all repairs and/or replacements necessary to the plumbing and air conditions systems.  Lessor shall be responsible for any major structural repairs to the roof or exterior of the structure, to the parking area and other common areas,\(^3\) provided however that any such repairs are not necessitated as a result of negligence, damage or abuse by lessee, its agents, servants and/or assigns.
[brief] [...] AND [...]’ APPELLATE RESPONSE  BRIEF Of Counsel and On the Brief: [...], Esq. (043492006)  TABLE OF CONTENTS  Table of Authorities ........................................................................................................ ii  Preliminary Statement .....................................................................................................  1  Procedural History & Statement of Facts .........................................................................  2 Legal Argument ...............................................................................................................  5  Point I ..................................................................................................................................  5  THE APPELLATE DIVISION SHOULD AFFIRM THE TRIAL COURT’S DECISION THAT OPRA DOES NOT REQUIRE THE PRODUCTION OF EMAIL LOGS STORED ON PRIVATE NON-GOVERNMENT ACCOUNTS (Pa35)  Point II ...............................................................................................................................  10  THE APPELLATE DIVISION SHOULD NOT EXPAND THE DEFINITION OF GOVERNMENT RECORDS UNDER OPRA TO INCLUDE PROPRIETARY EMAIL SERVICES USED BY INDIVIDUAL MEMBERS OF AN ELECTED BODY (Pa31-32)  Conclusion .......................................................................................................................
[brief] N.J.S.A. 40:55-2g. --- \(^8\)  Which is not even true because Objective 3 (providing affordable housing) is actually hurt, as discussed above.  If Planning Boards base their determination that a proposed ordinance is consistent with the Master Plan because the ordinance includes a provision for increasing open space and the general objectives of the Master Plan make reference to open space, then every ordinance that increases open space will be deemed to be consistent with the Master Plan regardless of the extent to which the Ordinance deviates from the Master Plan’s specifics as to the areas in which open space should be located and the types of open space that are most desired including whether that open space should be available for use only by the residents of a municipality or a county-wide population which might be deemed undesirable by the municipality’s residents for valid reasons.
[brief] Notwithstanding [...]’s Belated Challenge to the Specifications, [...] Appropriately Required Submission of a Power of Attorney to Accompany its Consent of Surety Form (A 62) | 21 | | C.  Contrary to the Standard Specifications and Binding Decisional Law, [...] Failed to Submit a POA Evidencing the Attorney-in-Fact’s Authority to Bind the Surety to the Obligations in the Consent of Surety (A62) | 26 | | D.  [...]’s Failure to Provide a POA Evidencing that the Consent of Surety is Binding on and Enforceable Against [...] Renders the Consent of Surety Materially Defective and Incapable of Being Cured (A 62) | 33 | | E.  [...]’s Mistaken Acceptance of a Similar Form POA in the Past Does Not Require it to Now Accept a Deficient Consent of Surety (A62) | 41 | | F.  [...]’s Subsequent Amendments to its Standard Specifications are Irrelevant to the Issues in Dispute (A 62) | 45 | | CONCLUSION | 47 | ### TABLE OF AUTHORITIES | Case | Page | |----------------------------------------------------------------------|------| | **Cases** | | | Aqua Beach Condo.
[brief] [...] prepared a report dated December 22, 2018; he was deposed on April 26, 2019.  Pa2504.  [...] testified that [...] did not have to be a professional engineer to perform his job duties as project manager for this particular project.  Pa2511.  He testified that as a professional engineer, [...] was supposed to provide oversight of [...].  Pa2512.  However, [...] did not in fact provide oversight of [...]; instead, [...] performed more administrative duties.  Ibid.  [...] testified that engineering work included putting the right material down, where it’s supposed to be, using the right type of striping, and abiding by the plans and specification.  Pa2513.  He further testified that engineering services included knowing whether the right material was used, whether it is the right temperature, that it is being put in the right place on the ground, right depths, right dimensions.  *Ibid.*  None of those responsibilities belonged to the resident engineer.  They belonged to the inspector, [...].  With regard to the resident engineer’s responsibilities, [...] acknowledged that the resident engineer had to assure that the contractor was complying with all local, state, federal laws, ordinances, rules, regulations.  Pa2515.  [...] acknowledged that the HASP was part of the contract, and that [...] and [...] had a duty to assure compliance with the HASP.  Pa2515-16.  [...] testified that if the resident engineer saw something that was unsafe he would have to report it.  Pa2517.  [...] agreed that the resident engineer had certain obligations in ensuring the contractor’s compliance with the HASP.  For instance, if there was not enough lighting on a job site, the resident engineer would have to bring that to the attention of the contractor and the resident engineer had the authority to stop work.  Pa2518.
[brief] [Da9-Da11; Da12-Da13]  The trial court ignored additional Supreme Court cases when it weighed the parties’ competing uses for the Property and held that Plaintiff’s proposed use is more beneficial.  The most Plaintiff can argue in trying to support the trial court’s decision is that those Supreme Court cases did not involve the Mount Laurel doctrine.  (Pb48-Pb49).  Our Supreme Court has expressly ruled that a property owner cannot challenge a public entity’s exercise of eminent domain by arguing that the owner’s proposed use would better serve the public interest than the public entity’s proposed use.  Norfolk S. Ry. Co. v. Intermodal Props., LLC, 215 N.J. 142, 162-64 (2013).  The only exception to this rule is when the property owner has already devoted its property to an existing public purpose, and the property owner also has the power to condemn.  Id. at 163.  “[A]bsent a pre-existing, public use coupled with the power of eminent domain,” the courts are foreclosed from weighing competing public interests.  Ibid.  Here, the prior public use doctrine does not apply because Plaintiff’s interest in developing affordable housing is not a pre-existing use, and more fundamentally, Plaintiff is a private entity and lacks the power to condemn.  In other words, Supreme Court doctrine does not permit Plaintiff to challenge [...]’s exercise of eminent domain by arguing that its proposal to build affordable housing on the property would better serve the public interest than [...]’s desire to condemn to revitalize blighted land.  To that end, the Court is foreclosed from undertaking a comparative evaluation of the competing public uses to determine which should prevail.  Norfolk Southern does not differentiate between “constitutional” interests and non-constitutional interests, but, even if it did, [...]’s interest in redevelopment is also of constitutional dimension.  (Pb49).  Contrary to Plaintiff’s argument, it is irrelevant that Norfolk Southern does not involve Mount Laurel.  (Pb49).  Norfolk Southern holds that the courts should not weigh competing interests, yet that is exactly what the trial court did.  See Norfolk S. Ry. Co., 215 N.J. at 164.  Because [...] has proffered a legitimate public use and has exercised good faith, the court erred in failing to defer to [...]’s intent to condemn to redevelop the Property for commercial purposes.  IV.
[brief] A.  The Court Erred In Denying A Wade Hearing.  In responding that there was no need for a Wade hearing, the State makes several errors, rendering its arguments unavailing.  As an initial matter, the State misstates the standard for holding a Wade hearing, citing the pre-Henderson standard that has not been in effect for more than a decade: “A threshold showing of some evidence of impermissive suggestiveness is required,” where such a showing of impermissible suggestiveness exists only “where all of the circumstances lead forcefully to the conclusion that the identification was not actually that of the eyewitness, but was imposed upon him.  . . .” (Sb 8 (citing State v. Ruffin, 371 N.J. Super. 371, 391 (App. Div. 2004) and State v. Madison, 109 N.J. 233, 234 (1988)).  State v. Henderson, 208 N.J. 208 (2011), overruled these cases.  As the Supreme Court explained in Henderson, “The hearing revealed that Manson/Madison does not adequately meet its stated goals: it does not provide a sufficient measure for reliability, it does not deter, and it overstates the jury’s innate ability to evaluate eyewitness testimony. ”  Id. at 285.  Following the Supreme Court’s landmark decision in Henderson, a defendant in New Jersey is entitled to a Wade hearing on the reliability of an eyewitness identification if he can show “some evidence of suggestiveness that could lead to a mistaken identification.
[brief] Appellants also suggest that by exempting this Project and not holding applicants to the stricter “routine upgrade” standard, [...] is not comporting with its directive to “prohibit or limit to the maximum extent possible construction or development which is incompatible with preservation of this unique area. ”  N.J.S.A. 13:20-10(b)(9).  Yet even in setting forth the exemption, the Legislature ensured that the preservation area’s sensitivity would be considered by requiring [...] to evaluate consistency with the Highlands Act’s goals and policies.  N.J.S.A. 13:20-28(a)(11); N.J.A.C. 7:38-2.3(11).  The Legislature only required this additional consideration for Exemptions #9 and #11.  N.J.S.A. 13:20-28(a)(9) and (11).  [...] also mandates exempt Projects to be consistent with the areawide WQMP.  N.J.A.C. 7:38-2.4(a)(e).  As explained above, this Project is proposed on a decidedly former industrial use site, and constructing a compressor station there, rather than on a less historically disturbed site, ensures that fewer natural resources are impacted and meets the Highlands statutory and regulatory requirements.  Finally, [...] consulted with the [...] to assure the Highlands resources were considered and the Council concurred with providing an exemption for [...]’s Project.  Thus, these statutory requirements have been met.
[brief] “Plaintiff filed a complaint seeking a Court Order directing the [...] to grant Plaintiff the two statutory adjournments afforded to homeowners under N.J.S.A. 2A:17-36.  After the filing, but before the status conference held on March 22, 2023, the Sheriff’s Office granted the relief sought by Plaintiff.  The adjournments were granted on March 13, 2023.  Although Plaintiff denies receiving the notice of the adjournments prior to the March 2, 2023, conference, he did acknowledge on the record that the adjournments had been granted.
[directive] Page 42 or' Available Risk-Assessment Results  Aye Not Automated Pretrial Preliminary 4.5.6  Charging in Making Decisions.  Undue Delay Result in Would the when are placed on police departments burdens administrative Recognizing that pending of required to maintain custody a defendant police are and decision is delayed charging system subsection 2.2.2, if either Scan of the Live provisions notwithstanding the that decision, preliminary operational, or if results of a system not the PSA is automated Judiciary's or the reasonable will available within otherwise are not or not be a risk-assessment pretrial automated prosecutor or defendant), an assistant fingerprinting the hours of within two (e.g., period of time or a Section 3.2 of Directive, accordance with this in general consulted deputy attorney complaint- 3.3.2, to subsection may proceed make the pursuant to designated officer supervisory set applying provisions/presumptions determination by the complaint-warrant versus summons See pretrial risk assessment. of an automated on the results not depend Section 4 that do forth in the of delay a reasonable period time to what constitutes determination as to note The 8. pretrial risk-assessment process of the automated results awaiting the decision while charging on the based on the administrative burdens placed shall be fingerprinting Scan following Live from patrol/call-for-service duties re-assign an officer to the need delay (e.g., department by the for officer to in custody, the need the arresting defendant held monitor the station to in the to stay to the subsection shall be construed to authorize delay in this Nothing duty, etc.).
[brief] Here, however, the Law Division’s decision is clearly an instance of judicial overreach in violation of the Administrative Procedures Act (“APA”), N.J.S.A. 52:14B-1, et seq., which vests rule-making authority in state administrative agencies when appropriately delegated by the legislature.  As discussed below, such a drastic change in long-standing policy is properly made only by [...] pursuant to the procedures and protections set forth in the APA.  To be valid, a rule must be adopted in “substantial compliance” with the APA.  N.J.S.A. 52:14B-4(d).  Under the APA, prior to adopting or amending any rule, an administrative agency must give notice of its intended action, N.J.S.A. 52:14B-4(a)(1), and afford interested parties a “reasonable opportunity to submit data, views, or arguments, orally or in writing. ”  N.J.S.A. 52:14B-4(a)(3).  Public comments should be “given a meaningful role” in the process of rule adoption.  In re Adoption of Rules Concerning Conduct of Judges, 244 N.J. Super. 683, 687 (App. Div. 1990).  Among the purposes of the APA is “to give those affected by the proposed rule an opportunity to participate in the rule-making process, not just as a matter of fairness but also as a means of informing regulators of possibly unanticipated dimensions of a contemplated rule. ”  In re Comm'r's Failure to Adopt 861 CPT Codes, 358 N.J. Super. 135, 142-43 (App. Div. 2003) (citations and internal quotations omitted).