ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] BOARD  On the Brief: [...], Esq., ID#013482010  [...]; and [...], Esq., ID#005931985  [...]  TABLE OF CONTENTS  TABLE OF JUDGMENTS, ORDERS AND RULINGS .................. iv TABLE OF AUTHORITIES ........................................... v LIST OF PARTIES .................................................... ix  TABLE OF TRANSCRIPTS ......................................... x  PRELIMINARY STATEMENT .......................................  1  STATEMENT OF FACTS .............................................  4  PROCEDURAL HISTORY ..........................................  18  LEGAL ARGUMENT ...............................................  20  I.  THE RECORD SUPPORTS THE VARIANCES GRANTED; THEREFORE, THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN FINDING THAT THE BOARD’S DECISION WAS NOT ARBITRARY, CAPRICIOUS OR UNREASONABLE.  ..............................................  20  A. STANDARD OF REVIEW ......................................  21  B.  THE BOARD PROPERLY DETERMINED THAT THE APPLICATION MET THE POSITIVE AND NEGATIVE CRITERIA UNDER (C)(2) FOR BULK VARIANCE RELIEF FOR FRONT YARD  SETBACKS OF 5 FEET WHEREIN 10 FEET IS REQUIRED TO OCEAN TERRACE AND PORTER AVENUE ......................... 24  C.  THE BOARD PROPERLY DETERMINED THAT THE APPLICATION NECESSITATED A  (D)(5)  SPECIAL REASONS  VARIANCE FOR DENSITY WHEREIN EACH UNIT WILL HAVE APPROXIMATELY 1,092 SQUARE FEET WHEREIN 1,200 SQUARE FEET IS REQUIRED..................  29  D.  THE BOARD PROPERLY DETERMINED THAT SPECIAL REASONS EXIST FOR THE GRANT OF A (D)(6)  SPECIAL REASONS  VARIANCE FOR HEIGHT OF 48.13 FEET BEING REQUESTED WHEREIN  41 IS THE MAXIMUM HEIGHT.................. 34  II.  NOTICE OF THE APPLICATION WAS SUFFICIENT UNDER THE PRINCIPLES ESTABLISHED IN THE PERLMART DECISION, THEREFORE THE DEFENDANT-BOARD HAD JURISDICTION OVER [...]’S APPLICATION.................  39  CONCLUSION.......................................................  48
[brief] On or about January 13, 2015, Appellant [...] and his wife, [...], entered into a contract of sale to purchase property located at [...] in [...]. ("the Property").  (May 16, 2017 Order and Statement of Reasons, entered by The Honorable [...], J.S.C., 55a).  Defendants purchased the Property from the [...].  Id.  Prior to the sale, [...] and [...] had been tenants at the property and, according to public records available from the New Jersey Secretary of State, they also owned and operated [...] at the Property.  Id.  1  It is appropriate to combine the Statement of Relevant Facts and Procedural History in order to present the Court with a more organized, concise filing.  The underlying facts of this case are intertwined with incidents that occurred during previous lawsuits to resolve unrelated claims between these parties.  Fully explaining the relevant issues, while presenting the facts and procedural legal history separately, would result in a lengthier, less streamlined filing for the Court’s consideration.
[brief] Pa072-Pa073.  In addition, in Bailey, police received a 9-1-1 call reporting that a bald black man wearing a white t-shirt and blue jeans walking with a pit-bull had a gun.  Pa073.  Police responded to the area, identified the man with the pit-bull, and performed an investigatory stop.  Pa073.  An appellate panel sustained the stop, distinguishing J.L. based on the fact that the caller in Bailey “is not anonymous. ”  Pa076.  The panel pointed out that its conclusion that the investigatory stop was justified was also supported by “defendant’s startled behavior, his disobedience to the detectives’ commands, his location in a high-crime area, and the caller’s description of defendant with a firearm. ”  Pa076.  In this case, like the officers in Rossman and Bailey, [...] received a report of a 9-1-1 call from dispatch that a specific man in a particular location was unlawfully armed with a handgun.
[brief] TABLE OF AUTHORITIES  CASES A.T. v. Cohen, 231 N.J. 337 (2017) (citing Cornblatt v.  Barrow, 153 N.J. 218 (1998))  ................................................................. 14, 20, 21 Alpert, Goldberg, Butler, Norton & Weiss, P.C., v. Quinn, 410 N.J. Super. 510 (App. Div. 2009)  ..............................................................................  9  Burns v. Belfasky, 326 N.J. Super. 462 (App. Div. 1999), aff’d, 166 N.J. 466 (2001)  ..................................................................................  14  Burt v. West Jersey Health Systems, 339 N.J. Super. 296 (App. Div. 2001)  ...........15  Charles A. Manganaro Consulting Eng’rs., Inc. v. Carneys Point Twp. Sewerage Auth., 344 N.J. Super. 343 (App. Div. 2001)  .............................................10  Cornblatt v. Barrow, 153 N.J. 218 (1998) ...............................................................8, 14 Couri v. Gardner, 173 N.J. 328 (2002) ................................................................. 8, 9, 12  Cowley v. Virtua Health Sys., 230 A.3d 265, 242 N.J. 1 (N.J. 2020) ............... passim Estate of Chin v. Saint Barnabas Medical Center, 160 N.J. 460 (1999)  ....................17  Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003) ...................... 20, 21, 22 Hubbard v. Reed, 331 N.J. Super 283 (App. Div. 2000) ........................................ 6, 7, 17  In re Hall, 147 N.J. 379 (1997)  ..............................................................................6  Nuveen Mun. Trust v. Withumsmith Brown P.C., 752 F.3d 600 (3d Cir. 2014) ......9  Palanque v. Lambert-Woolley, 327 N.J. Super. 158 (App. Div. 2000) rev’d on other grounds 168 N.J. 398 (2001)  .......................................................... 15, 17  Paragon Contractors, Inc. v. Peachtree Condominium Ass’n, 202 N.J. 415 (2010); (citing Charles A. Manganaro Consulting Eng’rs, Inc. v. Carneys Point Twp. Sewerage Auth., 344 N.J. Super. 343 (App. Div. 2001) ........................................... 8, 11, 20 Rosenberg v. Cahill, 99 N.J. 318 (1985) .................................................................17 Sanzari v. Rosenfeld, 34 N.J. 128 (1961) .................................................................17 [...] v. [...], Bergen County, No. [...] (N.J. Super. May 20, 2012) ..............................................................................10 Stoecker v. Echevarria, 408 N.J. Super. 597 (2009) .................................................. 10, 12 [...] v. [...], et al., Docket No. [...] (Superior Ct. of N.J.) .................................................................14 Triarsi v. BSC Group Servs., LLC, 422 N.J. Super. 104, 27 A.3d 202 (App. Div. 2011) ............................................................................................................................. 6, 8, 9 STATUTES N.J.S.A. 2A:53A-27 ........................................................................................................ passim N.J.S.A. 2A:53A-29 ........................................................................................................
[brief] Contrary to [...]’s unsupported assertion that the Arbitrator “accept[ed] some of the modifications to the Final Award that were sought by [...],” App. Br. at 5, the Arbitrator entirely rejected [...]’s proposed damages recalculations.  Da235 (“the request for modification is denied…I find no justification to modify the award”).  At the Trial Court, [...] decried that the Arbitrator exceeded his powers merely because the Arbitrator ruled against [...].  See Da581-82.  In [...]’s view, the only acceptable outcome was the Arbitrator weighing the evidence and interpreting the PTA in [...]’s favor, and anything less was apparently a statutory violation of the New Jersey Arbitration Act.  [...]’s challenges in the Trial Court hinged upon reasserting the same considered-and-rejected arguments from the Arbitration based on [...]’s flawed interpretation of what constitutes “a Backlog Project. ”  See App. Br. at 12 (restating [...]’s continually rejected idiosyncratic interpretation of the PTA with respect to a “six-step process” for a project to become a “Backlog Project”).  The Arbitrator, however, had already rejected [...]’s strained (and bad faith) PTA interpretation and found that [...] agreed to pay, and does in fact owe, [...] its 65% EGP share under the “projects that have been awarded and/or performed. ”  Da137.  D.  The Trial Court Correctly Finds No Basis to Disturb the Award and Properly Confirms the Award
[brief] Id., at 308.  Appellant maintains that the density variance was improved throughout the process by the modification of the plans.  The reduction of Appellants requested units does not bring the application into conformance with the standards of the EMF-18 zone.  Because Appellant may have over asked initially, they should not be afforded “bonus points” for reducing to a lower non-conforming number of units.  Appellants’ counsel stated in summation on March 24, 2022, they are "only 47 units over the allowable density as a result of those multiple reductions in the proposal."  (4T11-14 to 16)  It is the Board's position that 47 units above the permitted density is a substantial departure from the Township zoning ordinance and master plan.  The 47 units and the additional burden on the overtaxed parking accommodations as they exist would be approved at a detriment to the surrounding neighborhood.  Appellant states in its Brief on p. 28, "The Board spent absolutely no time deliberating about the requested variance or the positive and negative criteria."
[brief] This Appellate Panel must not ignore the statutory language, Supreme Court precedent and the policies behind OPRA.  I.  The definition of “government record” only requires that a government official made (or received) the record and there is no additional requirement that the government maintain the record or own the storage medium to trigger the disclosure obligation.  The crux of the trial court ruling and the linchpin to the [...] position here is that the email logs of the accounts containing government-business emails sought here are not “government records” because the [...] does not own or control the email accounts from which the government officials sent (or received) the emails in question that formulate the logs.  To accept this position, this Court would have to reject the express terms of the statute and Supreme Court and appellate rulings.  If government officials use their personal email accounts to communicate about government business, that communication does not lose its status as a government record because the account was personally owned.  “Government record” status is not determined by who owns the pen that wrote it or the email account that sent it.  Otherwise, OPRA would be a toothless statute of little worth if it were so easily circumvented.  What renders a communication (or any other record) a “government record” within OPRA’s disclosure obligation turns on whether it was “made, maintained or kept on file” in the course of a government official engaging in government business “or...received” in the course conducting government business.
[brief] Although unpublished, South Amboy presents a well-reasoned analysis of the LRHL and collection of negotiated redevelopment payments.  In that case, the plaintiff redeveloper sought to void a redevelopment agreement with the [...] on the grounds that a negotiated redevelopment payment was in fact unlawful.  Id. at *3.  The legal question at issue in South Amboy was the very same question presented to the lower court in the instant litigation, namely whether a municipality or designated redevelopment entity may negotiate with and collect revenue from a redeveloper so as to defray all of the Redevelopment’s Costs, whether specific to a project or not.  Id. at *7.  The court considered the language of the LRHL, assessed its purpose and intent, and concluded that a municipality is not limited to collecting payments that defray the costs that are part and parcel of a particular redevelopment project.
[brief] (“An illegal sentence that has not been completely served may be corrected at any time without impinging upon double-jeopardy principles. ”); *State v. Horton*, 331 N.J. Super. 92, 94-102 (App. Div. 2000) (with six months remaining to defendant's probationary sentence, App. Div. affirmed that trial court's action amending the judgment to include community supervision for life did not violate the constitutional prohibition against double jeopardy); accord *State v. Cooke*, Here, like [...], by any calculation defendant has completed the sentence in question.
[brief] [...] requested and was granted an extension of time to respond to the motion, and it was ultimately argued on April 28, 2023, six months after it was filed, giving [...] ample time to review and object to it.  1T.  [...] “acknowledge[d] that the [...] firm has had to do a lot of work to collect what they’ve collected over the time period they’ve been collecting it. ”  1T54-55.  [...] did not dispute that his “lies” and “obstruction” caused the need for that work, but instead focused largely on procedural arguments – that the application should have been filed earlier and/or in stages.  1T55.  [...], a fugitive from the New Jersey courts, did not oppose the motion.
[brief] Further, like the board member in DeMeo, whether [...] succeeded, or even intended, to secure an advantage over [...] by using his position as Board president to direct the Board attorney’s research on her is immaterial to finding a violation of N.J.S.A. 18A:12-24(b).  As such, the Commissioner was neither arbitrary, capricious, nor unreasonable in finding that [...] violated the Act, and, therefore, this court must afford the Commissioner’s decision deference and affirm it.
[brief] And none of those exceptions allow for communications with mail vendors.  To the contrary, Congress articulated that it was highly concerned with the “invasions of individual privacy” arising from “abusive, deceptive, and unfair debt collection practices. ”  See 15 U.S.C. § 1692(a).  As a result of these concerns, Congress provided limits on the use of a consumer’s information and protections from its misuse.  Thus, in § 1692c(b), Congress did indeed identify, with particularity, whom debt collectors may disclose consumer information and barred communications with everyone else.
[brief] ”  Viscik v. Fowler Equip. Co., 173 N.J. 1, 18, 800 A.2d 826 (2002).  In construing a jury charge, a reviewing court must consider the charge as a whole to determine whether the charge was correct.  Ibid.  When a party objects at trial, a reviewing court should reverse on the basis of that challenged error unless the error is harmless.  R. 2:10-2.  However, when the party fails to object, the reviewing court must determine whether any error in the charge was “of such a nature as to have been clearly capable of producing an unjust result.
[brief] [...]’s mental health diagnoses and history of trauma stemming from his abuse are also relevant to mitigating factor 11 (substantial hardship posed on the defendant), as was also explained by defense counsel at sentencing.  (1T 30-10 to 31-12)  Severe mental illness can give rise to unusual suffering and excessive hardship in prison settings, and researchers urge judges to take into account this foreseeable harm during sentencing.  Johnston, E. L., *Vulnerability and Just Desert: A Theory of Sentencing and Mental Illness*, 103 J. CRIM. L. & CRIMINOLOGY 147 (2013).  People with serious mental illness, including PTSD and major depressive disorder, are at greater risk of physical victimization in prison, and are more likely to experience sexual assault, solitary confinement, and overall psychological deterioration.  *Id.*; Blitz, C., *Physical Victimization in Prison: The Role of Mental Illness*, 31 INT’L J. L. & PSYCHIATRY 385 (2008).  Studies have found that incarceration exacerbates the suffering and symptoms of severe mental illness.  Haney, C., “Madness” and Penal Confinement: Some Observations on Mental Illness and Prison Pain, 19 PUNISHMENT & SOC’Y 310, 312, 321-23 (2017).  In accordance with this research, [...] reported that prison is not beneficial for his mental health.  (PSR 10)  Because the court rejected the application of mitigating factor 11 without considering or addressing the defense’s argument that prison would pose an excessive hardship on [...] due to his mental illnesses and trauma (2T 39-9 to 15), this case should be remanded for resentencing for the court to consider the additional suffering that would be endured by [...] in prison as a result of his severe mental illness.
[brief] “Except for the two design waivers that are requested . . . the application still satisfies essentially all of the criteria as set forth in the Municipal Land Use Law. ”  (1T2-24 to 1T3-3)  While [...] tried to minimize the need for the design waivers and went so far as to call them “de minimus” at the April hearing (2T22-23 to 2T23-24), [...] conceded that if the applicant wanted to eliminate the design waiver for street trees, it would result in the applicant having to adjust the drainage on the site to put stormwater management facilities in a less desirable position to accommodate street trees.  (2T46-3 to 2T46-10)  [...] went on to testify that the subdivision plan shows building boxes on each of the proposed new lots because “we don’t know what is going to be built there. ”  (2T46-3 to 2T46-12)  [...] confirmed that, while the building envelopes are provided on the subdivision plan, the reality is that the applicant does not know the actual size of the houses that will ultimately be built on each lot.  (1T10-19 to 1T10-24).  Indeed, an objecting attorney pointed out the fact that two sewer lines were proposed for every new lot, indicating that the presence of basement apartments at each of the proposed new homes was probable.  (2T64-4 to 2T64-13)  The Board was thus made aware that approving the subdivision could result in as many as eighteen families on the nine parcels of land.
[brief] When asked directly why the Authority did not build the Authority Garage, [...] provided only two reasons: (1) in 2009, [...] allegedly told [...] that there was no reason to build the Authority Garage; and (2) the Authority would not be able to obtain financing from [...] because there was insufficient demand for parking.  2T6:8-21.  --- 3  [...]’s answer continued, attempting to shift blame to [...] for allegedly never approaching Defendant to ask whether Defendant intended to proceed with [...].  3T162:1-6.  That is beside the point.  i.  The Authority Garage Was Supposed To Be Completed Before Time Of The Alleged 2009 Conversation  The Authority cannot rely on an alleged 2009 conversation with [...] to retroactively justify its failure to build the Authority Garage.  The timing is impossible because, in order to comply with the phasing sequence and Project schedule, the Authority needed to begin planning its design, construction, and financing for the Authority Garage no later than 2006.
[brief] \(^3\)  In Gefre, the Court specifically stated that “if the --- \(^2\)  In Rudolf, plaintiff successfully proved that he should not be responsible for the any liability as compared to the first trial where the plaintiff was found by the jury to be responsible for 50% negligence.  This reduction of contribution on the part of the plaintiff was the actual damages sustained by the plaintiff in Rudolf, thereby the legal fees incurred to correct defendants’ error were part of the total damages sustained by the plaintiff.  \(^3\)  In Gefre, the Court specifically stated that “if the Shareholders are successful on the spoliation and legal malpractice claims on remand, then the fact-finder must determine what, if any, of their attorney’s fees incurred against [...] would not have been incurred in the absence of [...]’s and Shareholders are successful on the spoliation and legal malpractice claims on remand, then the fact-finder must determine what, if any, of their attorney’s fees incurred against [...] would not have been incurred in the absence of [...]’s and [...]’s specific wrongdoing, and, thus, are recoverable as damages.  This is exactly the proposition that Defendants are advancing that a plaintiff cannot create damages in any legal malpractice case just by commencing an action in the underlying matrimonial case to incur legal fees so long as there are some indications that the defendant has breached the duty in providing legal services to the plaintiff.  In short, Defendants have demonstrated that applying N.J. Ct. R. 4:50-1(a) and N.J. Ct. R. 4:50-1(f) to the facts in the instant case, the Court below should have vacated the Amended Final Judgment.
[brief] In *Goff v. Hunt*, 6 N.J. 600, 606 (1951), the court stated, “It has also been held many times that implied repealers are not favored in the law and that the requisite intent will not arise by implication unless the subsequent statute is plainly repugnant to the former and is designed to be a complete substitute for the former.  *Hartman v. Board of Chosen Freeholders*, 127 N.J.L. 170, 21 A.2d 351 (Sup.Ct.1941).  See also *State Board of Medical Examiners v. Coleman*, 132 N.J.L. 64, 67, 38 A.2d 689 (Sup.Ct.1944); *Kaufman v. Samuelson*, 134 N.J.L. 573, 576, 49 A.2d 479 (Sup.Ct.1946).
[brief] (Pa049).  [...] testified that her Certification was “absolutely true”.  (Da135).  [...] confirmed that her father was cleared to drive at the time he wrote his Will.  (Da145).  [...] testified, consistent with her Certification, that she recognized her father’s signature on the Will.  (Da133).  After [...]’s wife passed away, [...] was living in a single-family home in Hiawatha.  However, she was the one better prepared to take care of [...].  (Da141).
[brief] *Id.* at 606; see also *Hays v. Ruther*, 313 P.3d 782, 789 (Kan. 2013) (asserting that certain statutory remedies may be unconstitutional if they encroach on the traditional exclusive powers of the court, especially the powers relating to issuing and regulating the license to practice law); *JK Harris Fin. Recovery Sys. v. Dept. of Fin. Insts.*, 718 N.W. 2d 739, 746 (Wis. Ct. App. 2006) (recognizing that attorneys are “already subject to licensing and regulatory oversight of dealings with clients or customers,” and thus if the Division of Banking ever sought to regulate them under Wisconsin’s debt adjustment statute, “a court may then have to decide whether it may do so despite the legislature’s (or supreme court’s) creation of distinct regulatory schemes for those occupations”).  The trial court should have reached the same conclusion as Persels, and the rationale expressed in Persels, bolstered by Hays and JK Harris.  Like in these other states, the New Jersey Supreme Court has exclusive jurisdiction over the practice of law.  The Supreme Court has clearly exercised that jurisdiction by establishing series of rules governing the practice of law, including admission to the bar of this State, an attorney’s duties owed to a client and the discipline of attorneys.  C.
[brief] (8T151-21 to 24).  He plotted the cellphone activity among the four target cellphones shortly before and after the homicide, identifying which towers were in use by each phone.  (8T160-4 to 15; Pa9).  [...] did not opine on the distance that any of the phones were from the towers that he identified, and he explicitly stated, multiple times, that the shaded areas of his demonstrative aid represented an antenna’s directionality and not radio frequency coverage.  (8T160-21 to 161-14; 8T178-6 to 25; In addition to the aforementioned evidence, the State admitted numerous clips of surveillance video footage from the night of the homicide and a compilation of relevant segments that were obtained.