ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[directive] Step 5:   If yes, the preliminary recommendation is No Release Recommended, and proceed to 12.  Step   If no, continue to 6.  Step Determine if there is an NVCA flag and one of the current charges is violent.  Step 6:   If yes, the preliminary recommendation is No Release Recommended, and proceed to 12.  Step   If no, continue to 7.  Step  Determine if any current charge, not captured by above, is:  Step 7:  Step 4 − Escape (N.J.S.A. 2C:29-5(a)) − Aggravated manslaughter or manslaughter (N.J.S.A. 2C:11-4(a)(1) or (2), 2C:11- 4(b)(1) or (2)) − Aggravated sexual assault (N.J.S.A. 2C:14-2(a)(2)(a), (b) or (c), 2C:14-2(a)(3) through (7)) − Sexual assault (N.J.S.A. 2C:14-2(b), 2C:14-(c)(1)) − First degree robbery (N.J.S.A. 2C:15-1(a)(1),(2) or (3)) − Home Invasion Burglary – Inflict BI/Armed (N.J.S.A. 2C:18-2.1) − Carjacking (N.J.S.A. 2C:15-2(a)(1),(2),(3) or (4)) − Possession of weapon for unlawful purpose (N.J.S.A. 2C:39-4(b), 2C:39-4(c)) − Possession of firearm on school property w/o permission (N.J.S.A. 2C:39-5(e)(1))
[brief] Anthony, 237 N.J. at 235.  And reliance on the worksheet, which was apparently not submitted to the trial court during the suppression motion, “did not create an adequate record in other respects. ”  Id. at 236.  The worksheet did not contain a verbatim account or a detailed summary of the dialogue between the officer and [...] as required under Rule 3:11(c)(2).  The officer simply checked the box indicating he instructed [...] that the actual perpetrator may or may not be in the showup, while [...] testified he was told before the identification the police had a suspect.  There is no per se rule barring identification evidence for failure to strictly comply with Rule 3:11.  State v. Green, 239 N.J. 88, 109 (2019); Anthony, 237 N.J. at 239; Henderson, 208 N.J. at 303.
[brief] Here, Defendant does not challenge that the Plaintiff is a consumer, Defendants are debt collectors, and that Defendant’s conduct involves an attempt to collect a covered debt.  Instead, the dispute is over the fourth element: whether Defendant violated a provision of the FDCPA.  As for damages, Plaintiff seeks actual damages and statutory damages.  There is no limit on actual damages but statutory damages are limited to a maximum of $1,000 for the Plaintiff and 1% of Defendant’s net worth for the class.  § 1692k(a).  The provision has been construed to impose the limit on a case and, therefore, it is not multiplied by the number of violations.  The range between nothing and the cap requires consideration of factors.  The three factors determining the quantum of Plaintiff’s statutory damages are “the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional. ”  15 U.S.C. § 1692k(b).  The Class’s damages involve consideration of those three factors as well as “the resources of the debt collector, [and] the number of persons adversely affected. ”  *Id.*  Additional factors may be considered.  *Id.*  **C.
[brief] Da 4-7 Notice of Appeal……………………………………………………………………Da 8-10 Order…………………………………………………………………………………..Da 11 | CASES | PAGE NOS. | |----------------------------------------------------------------------|-----------| | State v. Blanks, 313 N.J. Super. 55 (App. Div. 1998) | 11 | | State v. Canfield, 470 N.J. Super. 234 (App. Div. 2022), aff’d as modified, 252 N.J. 497 (2023) | 8, 10, 11 | | State v. Carey, 168 N.J. 413 (2001) | 22 | | State v. Carrero, 229 N.J. 118 (2017) | Passim | | State v. Coyle, 119 N.J. 194 (1990) | 8 | | State v. Crisantos, 102 N.J. 265 (1986) | 11, 19 | | State v. Denofa, 187 N.J. 24 (2006) | 20 | | State v. Dunbrack, 245 N.J. 531 (2021) | 20 | | State v. Farrell, 61 N.J. 99 (1972) | 24 | | State v. Fuentes, 217 N.J. 57 (2014) | 25, 26 | | State v. Green, 62 N. J. 547 (1973) | 24 | | State v. Jenkins, 178 N.J. 347 (2004) | 17 | | State v. K.S., 220 N.J. 190 (2015) | 23 | | State v. Mauricio, 117 N.J. 402 (1990) | Passim | | State v. Newman, 132 N.J. 159 (1993) | 29 | | State v. Powell, 84 N.J. 305 (1980) | 19 | | State v. Randolph, 210 N.J. 330 (2012) | 22 | | State v. Robinson, 136 N.J. 476 (1994) | 11 | | CASES (Cont'd.) | PAGE NOS. | |-----------------|-----------| | State v. Taylor, 350 N.J. Super. 20 (App. Div. 2002) | 21 | | State v. Thomas, 187 N.J. 119 (2006) | 20 | | State v. Tirone, 64 N.J. 222 (1974) | 23 | | State v. Torres, 246 N.J. 246 (2021) | 27 | | State v. Yarbough, 100 N.J. 627 (1985) | 27, 28 | | STATUTES | | |----------|---| | N.J.S.A. 2C:1-2(b)(4) | 28 | | N.J.S.A. 2C:1-8(e) | 8 | | N.J.S.A. 2C:5-1 | 1 | | N.J.S.A. 2C:11-3(a)(1) | 1 | | N.J.S.A. 2C:11-3(a)(2) | 1 | | N.J.S.A. 2C:11-4(b)(2) | 8 | | N.J.S.A. 2C:12-1(b)(1) | 1 | | N.J.S.A. 2C:12-1(b)(3) | 2 | | N.J.S.A. 2C:39-4(a)(1) | 1 | | N.J.S.A. 2C:39-5(b)(1) | 1 | | N.J.S.A. 2C:44-1 | 22 | | N.J.S.A. 2C:44-1(a) | 23 | | TABLE OF AUTHORITIES (Cont'd.) | PAGE NOS. | |-------------------------------|-----------| | **STATUTES (Cont'd.)** | | | N.J.S.A. 2C:44-1(a)(1) | 25, 26 | | N.J.S.A. 2C:44-1(b) | 23 | | N.J.S.A. 2C:44-2(b) | 28 | | **CONSTITUTIONAL PROVISIONS** | | | N.J. Const. art.
[brief] [...] made a premature determination on insufficient evidence that the 1963 Agreement established a permanent easement for parking on the School property.  Thereafter there was an extended Testimonial Hearing in which principals and experts for both sides testified; the issues being whether the "easement" in the 1963 Agreement had been terminated or abandoned by either the parties' conduct in the 1972 school site plan application or by non-use, and how and whether the off-site parking use could safely operate.  [...] in his 2017 Final Opinion (Da177) made credibility findings as to those witnesses, finding that the [...] witnesses’ testimony was unconvincing and that the synagogue’s [...], as to continued parking use of the School’s Fifth and Sixth Street areas, had "clearly convinced" the Court that the School property had been used for Synagogue parking "consistently since the construction of the synagogue and that the Plaintiff had never taken action to abandon the easement rights created by the...63 Agreement".
[brief] *State v. Marshall*, 148 N.J. 89, 158 (1997) (citations omitted).  To establish a prima facie claim of ineffectiveness of counsel to warrant an evidentiary hearing, a defendant “must demonstrate the reasonable likelihood of succeeding under the test set forth in *Strickland v. Washington*, 466 U.S. 668 (1984) and *United States v. Cronic*, 466 U.S. 648 (1984), which was adopted by the New Jersey Supreme Court in *State v. Fritz*, 105 N.J. 42 (1987).  *Preciose*, 129 N.J. at 463.
[brief] Further, as articulated by the court in Schwartz, the opinion was in consideration of Pennsylvania contract law. \(^3\) 256 F. App’x at 518 (“the existence of the arbitration agreement is determined under the law of Pennsylvania”).  Even if the apparent and obvious deficiencies in these opinions and [...]’s \(^3\) Notably, no New Jersey State Court has cited to or otherwise relied upon Schwartz.
[brief] “T” references the transcripts from the Order to Show Cause Hearing in Superior Court on February 9, 2024.  The first number indicates the page, the second number indicates the line.  The Court denied the [...]’s application to vacate the award, stating:  So, the arbitrator took testimony from both sides and considered all the evidence presented and, ultimately, made the determination that, basically, that the employer did not violate the CBA when it used the Treasury circulars to calculate the overtime rate instead of the language contained in the agreement that Article 5:E(3), therefore, (indiscernible).  T20-10.  ***  But also, the Union states that the language in question is so abundantly clear that there should not have been any kind of reference to past practices.  But, that’s a little more nuance than if the court reads the analysis of the arbitrator’s opinion in finding that the employer was correct in its interpretation going back to 1987.  T21-24.  The Court found that the Kendellen Award was reasonably debatable, holding:  The Court is persuaded that, and again, the Court is not supposed to (indiscernible) arbitrator, but the Court can find that it’s a strong argument that the time and a half language, which is also abundantly clear, from the parenthetical, and that – the Court is not making (indiscernible) acting as the arbitrator, but it is merely finding that the arbitrator’s conclusion to that affect, is reasonably debatable.
[brief] See, Aronsohn v. Mandara, 98 N.J. 92, 105-106 (1984); Gonzalez v. [...] Freightways, 2010 WL 3720281 (App. Div. 2010) (Da 159-164).  While the snow removal contracts are obviously relevant as to the duties owed by and between the parties to the contract, they are not relevant to the duty owed by a contractor to a third party.  Id.  (“Under well-established principles, a contractor has a duty to persons, other than the one with whom the contractor has made the contract, to carry out his undertaken work in a careful and prudent manner, and he may be responsible to third persons for their personal injuries…proximately caused by its failure to exercise that care.  This duty exists irrespective of privity. ”).  Thus, the snow contractors’ duty of care ([...] and [...] here) is not defined by the snow removal agreement, but the well-recognized duty of care to perform its snow removal in a careful and prudent manner.  In fact, in the Gonzalez case, which also dealt with a slip and fall on snow/ice in a parking lot, the Appellate Division explicitly noted that the snow removal contractor had a duty to plaintiff “that was not defined by its contract” with [...] (plaintiff’s employer that hired the snow removal company).  Gonzalez v. [...] Freightways, 2010 WL 3720281 (App. Div. 2010) (Da 163).  Therefore, while the snow removal contracts are relevant to [...]’s obligations to [...], they are not relevant to the duty owed by [...]—the commercial landowner, who has a duty to remove snow and ice from its walkways.  Nor are the contracts relevant to the duty owed by [...], the snow removal contractor, who has a duty to perform snow removal in a careful and prudent manner.  Clearly, there is a distinction under the law as to the contractual duty owed by and between parties to a contract versus the common law duty to remove snow and ice among landowners and snow removal contractors.  For these reasons, the snow removal agreements are entirely irrelevant to the duty of care owed by Defendants and the lower court abused its discretion in making these contracts evidential.
[brief] N.J.S.A. 2C:20-2b(2)(g) & N.J.S.A. 2C:20-2b(4).  This was discussed one week before the jury was charged.  (17T112-16 to 127-9).  While N.J.S.A. 2C:20-2(b)(2)(g) was cited in the Indictment, (Da10), the jury charge quite rightly did not require the jury to find the “public writing” as an element of the crime.  (20T192-24 to 197-14).  While the use of special interrogatories may have been “discouraged” at one time, (see State v. Simon, 79 N.J. 191, 204 (1979)), there never was a “per se rule forbidding their use. ”  State v. M.L., 253 N.J. Super. 13, 26 (App. Div. 1991) (per curiam) (italics in original), certif. denied, 127 N.J. 560 (1992).  Indeed, Simon itself noted that in certain situations they may be necessary because “legal consequences require subsidiary or collateral findings of fact. ”  79 N.J. at 203.  One of the cases cited in Simon for that proposition, United States v. Haim, 218 F. Supp. 922 (S.D.N.Y. 1963), see 79 N.J. at 203, addressed the very situation presented here, where a simple guilty verdict lacking specification of the critical fact for grading purposes might be either a felony or a misdemeanor.  218 F. Supp. at 927-28 (dictum) (suggesting a special verdict could indicate which of four alleged objects of the charged conspiracy were proven, as three were felonies, but the fourth was a misdemeanor).  So even under Simon the use of the special interrogatory for the theft charge was necessary.  And defendant nowhere acknowledges the sea change made by *Apprendi v. New Jersey*, 530 U.S. 466 (2000).
[brief] (Ra 10).  [...] seeks to avoid compliance with this principle and potentially overcharge the Exchange – regardless of the cost of the actual services performed by [...] – by arguing that the individual subscriber, not [...], pays a fee to [...] for providing services to [...].  This is nonsensical since the fees paid by [...] to [...] are for services provided to [...] and are clearly disclosed as expenses in [...]’s financial statement filings with the Department.  (Ra32, footnote (a), and 33, § B, 1st paragraph.)  The individual subscriber simply authorizes up to 12.5% of the premiums, paid by subscribers to [...], as a limitation of expenses to be paid by [...] to [...] for services provided by the AIF.  Accounting Practices and Procedures promulgated by the [...].  These statements are the result of issue papers that have been exposed for public comment and finalized.  Finalized issue papers are in Appendix E.  While it is not intended that there be any significant differences between an underlying issue paper and the resultant SSAP, if differences exist, the SSAP prevails and shall be considered definitive.
[brief] Indeed, [...] does not even mention (much less address) governing Tenth Circuit precedent setting the applicable legal standard for dismissal as a sanction.  Second, both parties are equally culpable for any debacle concerning their shared use of the DISCO database and the resulting lack of clarity.  Third, [...]’s generalized complaints about [...]’s “costly and abusive discovery tactics” are premised on the issues raised in [...]’s motion to compel, which the court is granting in part and denying in part.  [...]’s motion also seeks, in the alternative, evidentiary sanctions in the form of clawing back documents bates numbered F000133-F133198 and excluding any documents improperly obtained by [...] from any future filing or proceeding in this case.  In other words, [...] essentially seeks to clawback its entire first production in response to RFP No. 7, which [...] has since replaced with a corrected production.  [...]’s attempt to lay blame on [...] for the debacle surrounding its first production is not well taken.  [...] significantly delayed in making that first production, placing [...]’s counsel in a time crunch to prepare for then-upcoming depositions.  Then, when [...] finally made that production, it botched it so badly that it was virtually unusable and later had to be entirely redone.  But before [...] corrected the production, it first tried to rectify the botched production via the quick fix of granting [...]’s counsel access to a shared database that [...] did not properly ensure would function in a way that would protect its privileged material.  Whether [...] improperly accessed a handful of documents that may (or may not) have been privileged is disputed and impossible for the court to resolve based on the parties’ vague, underdeveloped, and accusatory arguments on this point.  Regardless, [...] has not met its burden to show that an appropriate remedy would involve the claw-back of the entire 130,000+ page production rather than selected documents, and it appears this issue may be obsolete since [...] rectified the problems by re-running the searches in response to RFP No. 7 so that [...] has had the replacement production to use.  To the extent that [...] still has concerns about [...] retaining specific documents, [...] is required to follow the clawback procedure set forth in Paragraph 18 of the Protective Order.  (ECF 19.)  IT IS THEREFORE ORDERED that Plaintiff’s First Motion to Compel (ECF 63) is granted in part insofar as [...] is ordered to produce documents responsive to RFP No. 4, as narrowed by the parties to all Salesforce documents regarding the Derby and [...]s during the five years leading up to [...]’s termination.
[brief] [...] makes clear that a non-resident law firm partnership like [...] would “[p]lainly . . . not be subject to this State’s in personam jurisdiction merely because a person authorized to receive service on its behalf happened to be present in this State and was personally served here. ”  290 N.J. Super. at 529–30 (citation omitted).  And where, as here, the partners served had no involvement in the underlying representation, Da153, 196, the Court in [...] held that personal jurisdiction is not obtained over the non-resident partnership, 290 N.J. Super. at 528–31.  Plaintiff, like the Trial Court, simply ignores that dispositive, undisputed fact, and the corresponding result dictated by [...].
[brief] GPS Expert  Defendants’ expert witness [...] was called at the plenary hearing and was admitted as an expert in cellphone location services and engineering practice in Global Positioning Systems (GPS) and geographic information systems.  T4, p.58, 15-22.  Mr. Burgess also testified that it appeared that [...] used a program called [...].  The only way he knew this was that at the deposition of [...], the purported process server, a document was emailed to Defendant’s counsel by [...] the owner of [...], LLC containing what purported to be a [...] report of the service of process.  247a.  This email from [...] was never testified to, no one appeared from Esquire to testify as to its accuracy or authenticity.  In this document, there was a GPS timestamp for service and a GPS location.  The Defendant’s expert reviewed this document.  247a.  Mr. Burgess testified that the GPS timestamp on this [...] report corresponds to the date of August 28, 2031.  T3, p. 63:3-5.  He indicated this is a mistake and is probably a mislabeling on the [...] report and that it is likely a UNIX timestamp.  T3, p. 11-13.  The time stamp on the Affidavits is labeled a GPS timestamp and is therefore incorrect.  T3, p.65:1.  The expert testified that most of the fields on the Affidavit can be edited except for the GPS location and the Timestamp.  T3, p. 72:2-8.  The GPS location indicated on the [...] report does not correspond with the [...]’s residence on [...] but rather with the [...] which is more than a quarter of a mile away from the [...] residence by straight line but more if you were to take a road and drive there.  T3, p. 67:6-12 and T3, p.70:1-7.  Mr. Burgess indicated it did not seem likely that someone could effectuate service, immediately hit the button for service and make it to this parking lot in the time allotted.  T3, p.70:1-13.  Mr. Burgess further authenticated the EZPass records and photos of the Delaware Memorial Bridge and family photos to indicate that in fact the [...]s were at the places they said that they were at the times indicated in the metadata on the photographs.
[brief] Thereafter, plaintiff filed a motion for reconsideration (Pa416-Pa516), which was opposed by the defendants.  The lower court heard oral argument\(^5\) on the motion on October 11, 2023, and ruled from the bench, denying plaintiff’s motion.  2T.14-15.  The lower court (Honorable [...], P.J.Cv.) entered an order that same day, denying plaintiff’s motion for reconsideration.  ---  \(^4\)  The designation “1T.” will refer to the transcript of the motion proceedings held before the Honorable [...], P.J.Cv., on May 26, 2023.  \(^5\)  The designation “2T” will refer to the transcript of the motion proceedings held before the Honorable [...], P.J.Cv., on October 11, 2023. of the orders that granted the motions to dismiss of both [...] and defendant [...] (Pa520-Pa521).  **STATEMENT OF FACTS**
[brief] GUARANTEES ARE TO BE STRICTLY CONSTRUED AGAINST THE PARTIES SEEKING ENFORCEMENT AND AGAINST THE PARTY WHO DRAFTED THE GUARANTEE AND IN LIGHT OF COMMERCIAL REALITY AND IN ACCORDANCE WITH THE REASONABLE EXPECTATION OF THE PARTIES INVOLVED.  Defendants, [...] and [...] argue “guarantees are to be strictly construed against the party seeking enforcement and against the party who drafted the guarantee”.  KVDb14 citing Ctr. 48 Ltd. P’ship vs. May Dept. Stores, 355 N.J. Super. 390, 405 (App. Div. 2002); Peoples Nat’l Bank vs. Fowler, 73 N.J. 88, 101 (1977); Monmouth Lumber Co. vs.  Indemnity Ins. Co. of N. Am., 21 N.J. 439, 452 (1956).  In general, Defendants correctly quote the law except they fail to appreciate the key language from Ct. 48 Ltd. P’Ship, supra, “the guarantee agreement must be read in light of commercial reality and in accordance with the reasonable expectations of persons in the business community involved in transactions of the type involved.
[brief] All of Defendants’ arguments miss the mark because they are not measured up against the three elements of a claim for nuisance: (1) the defendant altered the natural flow of water; (2) the defendant’s interference with the natural flow of water was unreasonable; and (3) the defendant’s unreasonable interference with the natural flow of water caused injury to the plaintiff.  As set forth below, the record contains ample probative evidence on each of these three elements to, at the very least, create a genuine dispute of material fact that warrants reversal of the Chancery Division’s grant of summary judgment and remand for trial.  A.
[brief] ”  N.J.S.A. 40A:14-118.5(c)(1).  If “a law enforcement officer, employee, or agent failed to adhere to the recording or retention requirements . . . ‘or intentionally interfered with a BWC’s ability to accurately capture audio or video records,’ and . . . the defendant ‘reasonably asserts that exculpatory evidence was destroyed or not captured,’” the defendant is entitled to “a rebuttable presumption that exculpatory evidence was destroyed or not captured. ”  Id. at 533 (quoting N.J.S.A. 40A:14-118.5(q)(2)).  As [...] argued below, [...] did not turn on his body-worn camera until he was standing at the door of the defendant’s car, in violation of State policy and law requiring him to turn on his body-worn camera as soon as the police lights are turned on.  (1T 105-7 to 106-18)  As a result, the first thirty seconds of the footage – the entirety of the initial police encounter – does not have audio.  (1T 40-20 to 41-4)  Because defense counsel reasonably argued below that the missing evidence could have been exculpatory, (1T 188-2 to 7, 201-5 to 22, 202-11 to 16), and the State did not rebut this argument, the trial court should have applied the statutory presumption and found that the missing audio would have helped demonstrate that [...] was not acting intoxicated or in a way that suggested he was in possession of drugs.
[brief] Da227.  After the Motion to Dissolve the Stay was fully briefed, the lower court heard oral arguments on April 12, 2024 and entered an order denying the motion on April 15, 2024.  Da405.  On May 1, 2024, Plaintiff filed a Motion for an Order to Compel the Sheriff to Deliver the Deed or in the Alternative, Declare That There is no Stay in this Court.
[brief] While a formal unified Mental Disability Court which assures no discrimination occurs would be applauded, this suit seeks to declare illegal the --- 9 Infra we note were it a motion for discovery, we would have known there was a mistake – none of this would have occurred.  “sorting process” which *per se* sends people *without* mental disabilities to PTI and people who *are deemed to have* a mental disability to “mental illness probation. ”  This case is against the PTI “sorting,” and its remedies are based on *Pasqua v. Council*, 186 N.J. 127 (2006).  In both cases, there was a “background procedure” that was clearly illegal.  In *Pasqua*, the relevant program was legal and full of procedural safeguards.  Its illegality rested on the provision counsel.  In this case the illegality is the “sorting process,” a prosecutor deciding, with no evidence, a defendant is “mentally ill” (and the Courts upholding the discrimination).  As in *Pasqua*, this illegal aspect of a legal procedure is sought to be eliminated.
[brief] 26.  Now the Court below [...], seeks to again penalize Defendant (an additional $119,000.00) (DA 5, pages A51-A52 paragraph 1).  WITHOUT ANY SUPPORTING FACTS IN ITS OPINION OR ORDER despite these facts:  (a).  At the time of the signing of the Agreement Plaintiff had available funds to pay to Defendant, but LIED about same and hid this fact for over 6 years.