ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] [State v. Torres, 246 N.J. 246, 264 (2021) (quoting Yarbough, 100 N.J. at 643-44).]  Since these criteria are to "be applied qualitatively, not quantitatively," a "court may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences."  State v. Liepe, 239 N.J. 359, 374 (2019) (quoting State v. Carey, 168 N.J. 413, 427-28 (2001)).  Ultimately, the court's focus in making this determination "should be on the fairness of the overall sentence."  State v. Sutton, 132 N.J. 471, 485 (1993); see also Liepe, 239 N.J. at 378 (noting that a sentencing court's "primary obligation" is "to craft a sentence warranted by the offenses"); State v. Cuff, 239 N.J. 321, 352 (2019) (explaining that courts should consider "the fairness of the aggregate sentence imposed for the [various] offenses").  An explanation of the "overall fairness" is necessary "to 'foster[] consistency in . . . sentencing in that arbitrary or irrational sentencing can be curtailed and, if necessary, corrected through appellate review."  Torres, 246 N.J. at 272 (alteration in original) (quoting State v. Pierce, 188 N.J. 155, 166-67 (2006)).  [...] thoughtfully and cogently applied the Yarbough factors, concluding that minimum-term consecutive sentences on the murder and certain-persons counts, respectively, was appropriate, and imposing a thirty-five-year aggregate term.
[brief] See generally, Berninger v. Board of Adjustment, 254 N.J. Super. 401 (App. Div. 1991); aff’d o.b. Berninger v. Board of Adjustment of Borough of Midland Park, 127 N.J. 226 (1992); Aldrich v. Schwartz, 258 N.J. Super. 300, 311 (App. Div. 1991); Urban v. Planning Board, 124 N.J. 651, 661, (1991).  Further, a board is “required to lay down adequate protective conditions and safeguards where it appears proper to grant a variance and at the same time further one of the zoning objectives."  *Alperin v. Mayor and Township Com. of Middletown Township*, 91 N.J. Super., 190, 196, (Ch. Div. 1966), citing, *Kramer v. Board of Adjust.*, *Sea Girt*, 45 N.J. 268 (1965).  Obviously, there are, however, limits on what conditions a board may properly apply, see, generally, *Orloski v. Planning Board*, 226 N.J. Super. 666, (Law Div. 1988).  The [...] Motion in Aid did not seek to have the Building E elevator condition set aside as unreasonable and the trial court did not analyze the question in those terms.  Thus, presented to the Board at its December Meeting was a form of Resolution that did not provide for a Building E elevator.  The absence of the elevator was at the insistence of [...].  Simply put, for reasons of health, safety and welfare, the Board wanted an elevator in all of the multi-story buildings and saw no legitimate reason why Buildings A through D should have elevators and Building E should have none.  In addition, when the public hearings were concluded, the Board had the expectation that an elevator would be included in Building E, See Pa148, and Statement of Facts.  The meeting minutes, Pa356, show that the Board was willing to, and in fact did approve the application, in the form of the Resolution presented but if and only if a condition was added requiring an elevator in Building E.  Mindful that [...] had insisted the Board ‘move a resolution’ at the Board’s December meeting, the Board, with advice of counsel, accepted the proposed form of resolution subject to adding condition that Building E contain an elevator and that in order to move the matter at that meeting, the Board further directed that the condition be memorialized in a separate supplemental written resolution, which at the January meeting took the form of [...], Pa106.  The meeting minutes were uncontroverted before the trial court and show conclusively that the Board did not, as was found by the trial court, approve the project in December and then “unapprove” it or otherwise change its mind in January.  Thus, the trial court’s finding is not supported by adequate, substantial, credible evidence; rather the opposite is the case.
[brief] [...], d/b/a [...], d/b/a [...]; [...]; [...]; [...]; [...]; [...]; [...], d/b/a [...], d/b/a/ [...]; SOOD MEDICAL SUPERIOR COURT OF NEW JERSEY, APPELLATE  DIVISION  Docket No. [...]  Civil Action On Appeal From: Superior Court of New Jersey, Law Division, Dkt. No. [...]  Sat Below: Honorable [...], J.S.C.  PRACTICE, L.L.C.; [...], d/b/a [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; [...]; JOHN AND JANE DOES 1 through 10; and XYZ CORPORATIONS  1 through 10, Defendants.  BRIEF OF DEFENDANTS
[brief] Plaintiffs further claim the trial court “weighed [...]’s testimony against the perfunctory denials offered by [...]. ”  [...] consistently denied the allegations of misappropriations, and the trial court did not accept his explanations.  But, in this argument and in plaintiffs’ argument that there was sufficient evidence to support their claims, plaintiffs seem to forget that it was their burden to prove their claims; defendants did not have an obligation to disprove their claims. \(^{10}\)  Plaintiffs’ compilation of the “evidence” that supports their claims of “misappropriations” clearly reveals they failed to prove their claims (Point II, C of plaintiffs’ brief).
[brief] Sg001-Sg006.  Appellant’s request could not be reasonably viewed or understood as a private action compromising the Board without the Agency’s acceptance, without any credible evidence, of a connection between the prior political relationship and Appellant’s reason for the request.  The SEC’s and the Commissioner’s disregard of Board Policy 0174’s conferral of authority and the failure to identify factual evidence that supports a connection between political relationship and Appellant’s request warrants this tribunal to reverse the Agency’s decision.
[brief] (Da57-60).  While defendant argued that “‘the homicide was inextricably intertwined with the robber[ies]’ and that these crimes were committed so closely in time, and at the same location, as to ‘indicate a single period of aberrant behavior[,]’” this Court disagreed, (Da57) concluding that, as defendant candidly concedes, the crimes involved multiple victims, [Yarbough\(^5\)] factor (3)(c), and “separate acts of violence or threats of violence,” factor 3(b), in that four victims were robbed at gunpoint, and one was fatally shot.  Also, given the multiple victims of the robbery, the homicide, and the unlawful use of weapons, the convictions were necessarily “numerous,” factor 3(e).  Factor 3(a) is also implicated because although the crimes were committed close in place and time, the objective of the robbery, to obtain the four victims’ property, was independent of the purpose behind defendant’s homicide conviction, which was to wound or kill [...], who wore the yellow jacket.  Accordingly, we conclude the record amply supports the imposition of consecutive sentences for murder and robbery consistent with the Yarbough guidelines.
[directive] To determine an authorized plea offer pursuant to N.J.S.A. 2C:35-12 and State v. Brimage, 153 N.J. 1 (1998), a prosecutor must follow the steps and procedures outlined below:  1.  The prosecutor must first determine whether the defendant is eligible for a “standardized waiver” in the form of either a “flat offer” or an “open offer. ” (See Section 6).  If the defendant meets all of the eligibility criteria for an “open” standardized plea offer, the prosecutor is required to tender that offer, subject only to the provisions of Section 1.1 (general authority to refrain from tendering an offer that would compromise or jeopardize certain other investigations or prosecutions) and Section 3.10 (Conditional Pleas Involving Multiple Defendants).  If the defendant does not meet all of the eligibility criteria for an “open” standardized plea offer, but does meet all of the criteria for a “flat” standardized plea offer, the prosecutor is required to tender such a “flat” offer, subject only to the provisions of Sections 1.1 and 3.10.  If the prosecutor is not satisfied that the defendant meets all of the eligibility criteria for either an “open” or “flat” standardized plea offer, the prosecutor must calculate a “regular” plea offer in accordance with the provisions of these Guidelines.  2.  The prosecutor must determine the appropriate Offense Description for the Brimage-eligible offense(s).  (See Section 7.)  This step requires the prosecutor to determine not only the appropriate charge and citation, but also whether the defendant, or a person acting in concert with the defendant, possessed or used weapons during the course of the offense, and also to determine the aggregate amount of all drugs involved in multiple transactions.  (These circumstances are referred to as Special Offense Characteristics.  See Section 7.)  When the defendant has been charged with more than one Brimage-eligible offense, the prosecutor should calculate the appropriate authorized plea offer for each such charge involving a separate and distinct offense or transaction unless the prosecutor employs the aggregation of amounts feature established in N.J.S.A.  2C:35-5c, or unless the prosecutor intends to dismiss one or more Brimage- eligible offenses in exchange for the defendant pleading guilty to the most serious Brimage-eligible offense.  When amounts involved in separate transactions are aggregated, those transactions should be considered as part of a single offense for the purposes of determining an authorized plea offer under these Guidelines.  3.  The prosecutor must calculate the criminal history points for each of the defendant’s prior convictions or adjudications of delinquency, and must determine the appropriate Criminal History Category reflecting the defendant’s adult and juvenile criminal record.  (See Section 8.)
[brief] This matter was initiated via complaint filed on behalf of plaintiff [...] dated September 7, 2016.  (Pa1550).  Plaintiff’s Complaint provided that on September 12, 2015, plaintiff [...] was the operator of a motorcycle traveling southbound on the Garden State Parkway near mile marker 39.9 when his vehicle was impacted by a defect in the roadway causing his rear tire to blow out and for him to crash into the adjacent concrete barrier.  (Pa1550).  Plaintiff’s Complaint named [...] as a defendant citing [...]’s ownership of the roadway and responsibility for the road’s maintenance, inspection and repair.  (Pa1550).  Plaintiff’s initial complaint also included a fictitious party pleading count that provided in relevant part as follows:  The Plaintiff alleges that an insufficient amount of time has passed within which to determine the identity of any other individuals or business entities who may be responsible, in whole or in part, for the causation of the aforesaid accident.  For the purposes of the within Complaint, said individuals and business entities have been nominated as John Doe; Jane Doe; ABC Business Entities and XYZ Corporations.  The Plaintiff, pursuant to the Rules of Court for the State of New Jersey, reserves the right to amend the within Complaint relative to the additional Defendants when and if the identity of said individuals or business entities becomes known.  --- 1
[brief] This case serves as an example of unreasonable behavior by police officers and prosecutors.  On December 18, 2020, Elizabeth police officers [...] and [...], following behind a car driven by [...], and occupied by defendant [...] and three other people, searched the license plate in a database which returned a possible warrant for [...]  Although Officer Maldonado testified that he knew the database is not always accurate and that it was common practice to always confirm the warrant before making an arrest, he nevertheless stopped the car without confirming that the warrant was valid.  Still not knowing whether the warrant was valid, police then proceeded to search the car based on the smell of marijuana, recovering a small quantity of marijuana and a handgun.  It was only after completing the search that the officers determined that the outstanding warrant was not in fact for [...], but rather, was for someone with a similar name.  Not only did police behave unreasonably when deciding to stop the car, but so did prosecutors when they waited more than two years to file a motion to compel a buccal swab from defendants so that they could attempt to compare DNA to samples found on the gun.  This unjustifiable delay rendered the search unreasonable.  PROCEDURAL HISTORY
[brief] \begin{quote}  [I]t’s almost universally understood that the safe operation of a motor vehicle \textit{is entirely dependent -- or almost entirely -- upon the driver’s diligence in use of the vehicle’s braking and other systems}.  A driver’s responsibility for avoiding collisions by limiting speed, braking and steering, have been an inherent and well-understood characteristic of automobile operation for over a century.  \end{quote}  Indeed, the **undisputed evidence** is that LKAS and LDW systems are, by definition, designed to **assist** the driver—they do not replace the commonsense requirement that the driver should exercise control over the vehicle.
[brief] The trial court decided the battle of the experts by evaluating whether the parties’ expert’s methodologies were reliable and their data sound.  *See Lanzo v. Cyprus Amax Minerals Co.*, 467 N.J. Super. 476 (App. Div. 2021).  As part of this function, the court assessed the credibility of the witnesses.  The trial court made the following crucial findings of fact with respect to [...]: (1) [...] could not identify a single study addressing whether indoor-growing mold contaminates food and causes injury (Da26a); (2) [...] did not identify a scientific methodology supporting his conclusion that [...] was injured by food contaminated by indoor-growing mold, referring to it only as “common sense” (Da26-27); (3) while [...] testified that [...]’s urine tests detecting Trichothecene were “definitive proof” of his conclusions, the tests were taken months or years after [...] vacated the condo and [...] never explained how Trichothecene, which is rapidly excreted from the body, could still be in [...]’s body long after the exposure (Da27); and (4) [...] agreed that to suffer injury through exposure to mold, [...] would have to be exposed to an appreciable quantity of mold or mycotoxins, yet [...] did not know at what dose or frequency [...] consumed mycotoxins (Da27).
[brief] ALL EVIDENCE SEIZED FROM [...]’S CAR MUST BE SUPPRESSED BECAUSE POLICE LACKED REASONABLE AND ARTICULABLE SUSPICION TO BELIEVE THAT [...] WAS ENGAGING IN CRIMINAL ACTIVITY AND THEREFORE HAD NO BASIS TO EFFECTUATE A TRAFFIC STOP.  (Da 36-38)  The trial court’s decision on the motion to suppress the evidence seized from Moya’s car requires reversal for two reasons.
[brief] Defendant [...] mentioned an update in the records and stated that the supervisor instructed the aide to inform the plaintiff, but did not clarify whether the aide complied or how the plaintiff responded.  From the context, it appeared that plaintiff neither instructed defendant [...] to cease the service nor proposed any solutions to the issue, as defendant [...] stated that the aide made two subsequent attempts on May 19, 2019, and May 28, 2019, respectively, and was still denied entry.  Essentially, defendant [...] acknowledged that they were unable to provide any services due to being "denied entry" since May 18, 2019.
[brief] According to Defendants, [...] and [...] owed no duties to Plaintiff after the Deposit was returned.  Yet, as discussed in Plaintiff’s opening brief (Points II and III), Section 13.1 of the PSA gave Plaintiff the *additional and non-exclusive* right to demand specific performance in the event that [...] proceeded to close title under the [...] without Plaintiff.  Moreover, this right of Plaintiff to insist upon specific performance was expressly devised to be “in addition to its termination right,” which by its terms included return of the Earnest Money Deposit.  (Pa5-6, Complaint ¶ 21; Pa115-116, PSA § 13.1 (“Default by Seller”) (emphasis added)).  Specifically, Section 13.1 of the PSA provided: Default by Seller.  In the event that the Closing and the transactions contemplated hereby do not occur as herein provided by reason of any default of Seller, Purchaser may, as Purchaser’s sole and exclusive remedy, elect by notice to Seller within ten (10) Business Days following the Scheduled Closing Date, terminate this Agreement, in which event Purchaser will receive from the Escrow Agent the Earnest Money Deposit, whereupon Seller and Purchaser will have no further rights or obligations under this Agreement, except with respect to the Termination Surviving Obligations.  Notwithstanding the foregoing, in the event Seller [[...]] closes title under, the [...], and thereupon Seller [[...]] defaults in its obligation to close title under this Agreement, Purchaser [Plaintiff] shall, in addition to its termination right, shall have the right of specific performance.
[brief] .....................................................  32, 36 U.S. ex rel. Absher v. Momence Meadows Nursing Ctr., Inc., 764 F.3d 699 (7th Cir. 2014)  .......................................................  48 U.S. ex rel. Alcohol Found., Inc. v. Kalmanovitz Charitable Found., Inc., 186 F. Supp. 2d 458 (S.D.N.Y. 2002)  ...........................................  42-43, 44, 47 U.S. ex rel. Antoon v. Cleveland Clinic Found., 788 F.3d 605 (6th Cir. 2015)
[brief] (5T34:22 to 35:19.)  [...], on the other hand, displeased with [...]’s findings as to the RIR, stated only that there was “a reason” for his failure to pay [...] (likely being that [...] was upset with [...] that he would not sign off, as LSRP, on [...]’s deficient RIR).  (8T90:24 to 91:2, 98:13-24.)  Thereafter, Defendants re-engaged [...] as their LSRP, and [...] understood that he was being retained for the purpose of obtaining a RAO for the Property; indeed, [...]’s retainer agreement explicitly stated that the ultimate goal of his engagement was to obtain a RAO for the Property.  (5T43:7-22, 45:9 to 46:20; 6T78:10 to 80:8, 144:25 to 145:3; 8T98:25 to 100:7.)  In December 2021, [...] submitted the RIR that had been prepared by [...] to the NJDEP.  (4T188:7-10; 6T18:22 to 20:25, 81:3-7, 91:9 to 92:1; 8T100:14-16; Pa0388.)  Despite repeated requests by Plaintiff and [...] going back to 2020 to meet and review a draft RIR, [...] and [...] never consulted with or provided a draft to Plaintiff or [...] prior to submitting the RIR.
[brief] “Such deference has been specifically extended to state agencies that administer pension statutes. ”  Piatt v. Police & Firemen’s Ret. Sys., 443 N.J. Super. 80, 99 (App. Div. 2015).  “This deference comes from the understanding that a state agency brings experience and specialized knowledge to its task of administering and regulating a legislative enactment within its field of expertise. ”  Ibid. (quoting In re Election Law Enf’t Comm’n Advisory Op. No. 01-2008, 201 N.J. 254, 262 (2010) (additional citations omitted)).  Here, the Board’s determination was reasonable, as the Board applied the undisputed facts to the controlling statutes and regulations.
[brief] Having availed herself of that process, which I have no authority to review, and having gone through the appellate process, a determination was made through that process that the plaintiff, [...], is entitled to $4,600.00.  [...] makes numerous arguments regarding jurisdiction and lack of service.  […]  Ultimately, I respectfully disagree with [...]’s argument.  […]  The purpose of service is to put someone on notice that a complaint against them has been filed and to give them a fair opportunity to be heard.
[brief] State v. Johnson, 68 N.J. 349, 353-54 (1975); see also Legette, 227 N.J. at 475 (reversing a finding of consent by a defendant who had been stopped by an officer on a reasonable suspicion of illegal drug use, because the State had not shown the defendant “thought he could refuse [the officer's] search into his apartment”).  In a noncustodial setting such as the present one, the State does not necessarily have to establish that police officers expressly advised the person who allowed their search of the right to refuse consent, but that burden remains on the State to demonstrate that person's knowledge of right to refuse.  Johnson, 68 N.J. at 354.  “[C]onsent to a warrantless search ... must be shown to be unequivocal, voluntary, knowing, and intelligent. ”  State v. Sugar, 108 N.J. 151, 156 (1987).  Consent is a factual question determined by an examination of the totality of the circumstances.  State v. Koedatich, 112 N.J. 225, 264 (1988).  Applying these legal standards, as we did in Bradley, we respectfully disagree with the court's conclusion that defendant's opening of the house's front door and standing to the side, gave the large group of assembled police officers valid consent to enter and search the dwelling.
[brief] Third, as Serenity makes clear, the government entity’s desire to hold bidders to strict compliance is itself a sufficient basis to refuse waiver, particularly where the defect might indicate gamesmanship or a bidder playing “fast and loose. ”  306 N.J. Super. at 159-60.  For the reasons discussed above, [...]’s failure to submit the [...] Notice with its bid (not to mention the extremely delayed supplementation, even after being on notice) could be seen as an attempt at gamesmanship or playing fast and lose.  Thus, the County could properly refuse to waive the defect.
[brief] ”  *Schultz by Schultz v. Glasser*, No. A-5239-18T3, 2021 WL 269674, at *4 (App. Div. Jan. 27, 2021).  The first step “involv[es] the interpretation of the existing trust, and then, when warranted by evidence, reformation. ”  *Id.*  A court will thus use extrinsic evidence twice: first, to determine if there is an ambiguity and then in an attempt to resolve it.  *Nelson*, 454 N.J. at 162.  An interpretation of a trust requires a showing of the testator’s intent by a preponderance of the evidence; modification requires a showing by clear and convincing proof.  *Id.* at 160.  B.
[brief] "We will disturb a trial court's determination on counsel fees only on the rarest occasion, and then only because of clear abuse of discretion."  Strahan v. Strahan, 402 N.J. Super. 298, 317 (App. Div. 2008).  Counsel fees may be awarded when a party has unnecessarily prolonged the litigation.  Marx v. Marx, 265 N.J. Super. 418,428 (Ch. Div. 1993).  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.  In other words, a functional approach to abuse of discretion examines whether there are good reasons for an appellate court to defer to the particular decision at issue.  It may be an arbitrary, capricious, whimsical, or manifestly unreasonable judgment.  Flagg v. Essex County Prosecutor, 171 N.J. 561, 572 (2002) (Citations omitted).  In determining the amount of an award of counsel fees a litigant is entitled to receive, a trial judge may not impose his or her own policy considerations to arbitrarily reduce a litigant's otherwise legally justifiable application.  In Re Probate of Will and Codicil of Macool, 416 N.J Super. 298, 314 (App. Div. 2010).