ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Had the court properly assessed the aggravating factors, it would have assigned minimal, if any, weight to aggravating factors three, N.J.S.A. 2C:44-1a(3) (the risk of reoffense), nine, N.J.S.A. 2C:44-1a(9) (the need to deter defendant and others), or one, N.J.S.A. 2C:44-1a(1) (the nature and circumstances of the offense).  Had the resentencing court properly considered [...]'s post-offense conduct and rehabilitation, it would not have found aggravating factor three or would have given it minimal weight.
[brief] *Sims v. City of Newark*, 244 N.J. Super. 32, 42 (Law Div. 1990).  The absence of such notice is fatal to plaintiff’s claims of premises liability.  *Id.*; see also *Brown v. Racquet Club of Bricktown*, 95 N.J. 280, 291 (1984); *Carroll*, supra, at 388.  In this case, the Appellant is unable to establish the Respondent’s notice of the alleged hazardous condition, the clear liquid on the floor.  There is no evidence of the Respondent’s actual notice of the condition.  To establish a prima facia case of negligence, the Appellant must thus show the Respondent’s constructive notice of the condition, namely that the condition existed long enough so that the Respondent had sufficient time to discover and address the claimed hazard through the exercise of reasonable care.  *Troupe*, supra, at 602: see also Model Civil Jury Charge 5.2(F)(8).  To establish such constructive notice, the Appellant would have to show how long the condition existed.
[directive] An administrative investigation may commence with the disposition of a complaint against the subject officer by the Superior Court or a municipal court.  In the alternative, an administrative investigation may commence with a county or municipal prosecutor’s decision to dismiss a complaint against a subject officer.  A finding of guilt by the Superior Court or a municipal court may assist in resolving an administrative investigation because such a finding requires proof beyond a reasonable doubt, which is more than is required to meet the burden of proof in administrative matters.  6.3.8  A disposition that does not involve a finding of guilt by the courts or where a complaint is dismissed by a county or municipal prosecutor means that proof beyond a reasonable doubt has not been found.  However, it does not mean that an administrative investigation cannot be pursued or should be closed.  The absence of proof beyond a reasonable doubt does not foreclose the possibility that an investigation may reveal evidence that meets the burden of proof in administrative matters.  Thus, the internal affairs investigator must continue the administrative investigation to determine whether evidence exists or can be developed that meets the “preponderance of the evidence” burden of proof for administrative proceedings.  Under no circumstances shall an internal affairs administrative investigation be closed merely because a criminal investigation was declined or terminated.  In all cases where an investigation is returned to internal affairs because the prosecutor declined or terminated the criminal investigation, internal affairs shall inform the County Prosecutor as to the disposition of the complaint, including any discipline imposed, once the administrative investigation is completed.
[brief] Official misconduct is committed when a public servant, with a purpose to obtain a benefit, either commits an unauthorized act as part of his official function, or refrains from committing an act that he is required to do as part of his official function.  N.J.S.A. 2C:30-2.  With respect to Count Two charging official-misconduct related to the retention or misuse of the NJSP wallet ID, for reasons that are impossible to understand, the judge decided to sever the returning of the official-misconduct verdict into two questions: first whether defendant was “guilty” or “not guilty” of all the other non-benefit elements of official misconduct -- i.e., whether defendant committed an unauthorized act or refrained from committing an act that he was duty-bound to commit -- and then a ”Yes/No” question about the “benefit” element: “Did the defendant obtain or seek to obtain, for himself or another, a non-pecuniary benefit, or did he seek to injure another or deprive another of a benefit?”  (Da 13 to 14)  The jury returned a verdict of “guilty” when they were asked about all of the other elements of official misconduct.  (Da 13; 21T 49-19 to 51-14)
[brief] The state and federal Miranda protections apply where a suspect is both in custody and subject to police interrogation.  Hubbard, 222 N.J. at 265-66.  Here, it is undisputed that the detectives interrogated [...], so the only threshold issue is whether he was in custody.  “Custody” under Miranda law “does not necessitate a formal arrest, nor does it require physical restraint . . . , nor the application of handcuffs. ”  Id. at 266.  Rather, it is an objective inquiry that focuses on “whether there has been a significant deprivation of the suspect’s freedom of action” based on “how a reasonable [person] in the suspect’s position would have understood his situation. ”  Id. at 266-70.  Relevant factors include “the time and place of the interrogation, the status of the interrogator, [and] the status of the suspect. ”  Id. at 266-67.  Custody is thus more likely where the questioning occurs in a police station and the defendant is objectively treated as a suspect.
[brief] (Ia167).7  Accordingly, Intervenor’s assertion that he is an innocent party who will be left without protection if rescission is affirmed (Ib38), is incorrect.  Intervenor has the ability to pursue the financial responsibility coverage which, by law, [...] was required to, and did obtain.  The facts here are simply not comparable to the equities or legislative mandates at issue in the cases cited by Intervenor.  For instance, in Lawson, the Supreme Court shaped a remedy of rescission to allow an innocent insured, who would be left without any coverage at all if the policy were rescinded, to claim coverage.  Here, on the other hand, [...] (and Intervenor) will not be left without coverage following rescission.  The policy issued to Hertz insures the vehicle owner as required by law, and thus [...] and the Intervenor may call upon it to respond if they so wish.
[brief] [...] sought a flood hazard area individual permit and flood hazard area verification because the Project proposes to place a stormwater outlet within the flood hazard area and proposes numerous activities within the riparian zone.  (Aa18; Aa31).  The Project is proposed on a 645-acre property --- 2 “Aa” refers to Appellant [...]’s appendix, “Ab” refers to Appellant [...]’s brief; and “Ra” refers to [...]’s appendix. in [...], [...] (the “Property”).
[brief] The remedy fashioned by the trial court was consistent with this interpretation, and in fact, the Decedent’s intent was fully realized.  The Boonton Property was sold to [...] and the other two beneficiaries received their due share of the proceeds.  The Florida Property was sold to [...] and the other two beneficiaries received their due share of those proceeds.  This is precisely what a logical reading of Section 4.1A required under the circumstances of the case.  IV.
[brief] [...] paid himself $629,217.85 from [...] customer, [...].  (26T34:20 to 35:7).  -  Between 2013 and 2015 [...] paid $629,217.85 from [...] customer [...] (also called [...]) to his wife’s separate company, [...].  Until discovery in this lawsuit, Plaintiffs had no access to the [...] financial records.  [...] is listed as the contact for [...] in [...]’s records.  (Da866; 10T96:21 to 99:14).  -  While [...] represented to [...] that when [...] encountered cash flow problems (which happened all the time – 15T20:5-8), and could not pay [...] his full salary, [...] was paying himself his [...] salary from [...] without making similar payments to [...].  (15T31:13 to 32:23; 18T109:14-17).  • [...] claimed that he paid himself through [...] to protect [...]’s DBE certification, which he said prevented him from being paid a greater salary than [...].  However, [...] offered no support for that proposition, and even if such support existed, [...] presented no proof of an agreement between himself and [...] to permit payment through [...].  (18T108:7 to 109:13).
[brief] Roberto, 477 N.J.Super. at 366-367.  The analysis in Roberto, supra at 367-369 addressing relief under Rule 4:50-1(f) is comprehensive and instructive in applying equitable factors that support [...]’s decision.  The exceptional circumstances favoring this Defendant are not solely the funds it has expended since its title to the Premises but the several frustrated attempts to redeem prior to entry of final judgment, despite the financial ability to do so.  Notwithstanding its inquiries it appears that the tax collector did not produce the figure or redemption statements as had been requested and inquired if available.  (Aa344) (Aa347) (Aa356)
[brief] The trial court was correct in dismissing the claims against [...] and the [...] firm and was correct in denying the repeated baseless efforts to reinstate those claims.  Plaintiffs’ appeal is simply another baseless attempt by plaintiffs to obtain a different result.  Therefore, the trial court properly denied plaintiffs’ Motion to Amend the Complaint by properly holding that plaintiffs’ arguments citing to “newly discovered evidence” was unpersuasive to permit the amendment late into discovery and with a trial date pending.  Accordingly, the January 24, 2020 Order of the trial court denying plaintiffs’ Motion to Amend the Complaint should be affirmed.
[brief] **PLAINTIFF'S COMPLAINT WAS NOT TIME BARRED BY STATUTES OF LIMITATIONS.**  A.  APPELLANT’S CLAIMS BELOW WERE NOT TIME BARRED BY STATUTE OF LIMITATIONS.  Via its §A, pp. 12-15, the Response argues that “the plaintiff’s claims ‘were time barred by the Statute of Limitations. ’”  Appellant had three claims below resting on a mutually exclusive CoA:  His 1st claim was for a reserved handicapped parking space, which was pursuant to his independently obtained June 29, 2023 physician certification (Pa3), which supported his July 01, 202 indecent requested from the respondents to place a handicapped parking space at his street front (Pa51).  (This is raised via (1) CoA No1, pp. 10-12, and (2) Point Three, pp. 22-23 of Appellate Brief).  As such, his 1st claim was not barred by the Statue of Limitations.  Arguments about why the appellant’s 2nd and 3rd claims below were not barred by the Statue of Limitations are through the following (below in §B):  B.
[brief] STATEMENT OF FACTS  1.  Bankers Trust Co. of Calif., N.A. v. Delgado, 346 N.J. Super. 103, 787 A.2d 195 (App.Div.2001) held that the statutes relating to the adjournment of sheriff sales, N.J.S.A. 2A:17-36 2 (Pa 165) and N.J.S.A. 2A:61-5, 3 do not provide the sheriffs of this State with the discretion to deny an adjournment when requested.
[brief] ”  N.J.S.A. 24:6I-7.2d(4)(c).  A.  The [...] Issues a Request for Applications for Class 5 Cannabis Retailer License Applications  On November 9, 2021, pursuant to NJCREAMMA, the Borough adopted Ordinance #15-21 to allow for the operation of a limited number of cannabis businesses subject to certain conditions (the “Ordinance”).  (115a-123a).  The Ordinance provided that the Borough would issue a maximum of two Class 5 cannabis retailer licenses.  (115a-123a).  The Borough later determined that one of the two available Class 5 cannabis retailer licenses would be for the Highway Commercial District (“HCD”), which is the license at issue in this appeal.  (38a).  The Ordinance also provided that the Borough Council (the “Council”) would form a Cannabis Subcommittee (the “Subcommittee”), consisting of two members of the Council, the Borough’s chief of police, and the Borough’s business administrator.  The Subcommittee was tasked with reviewing all applications for cannabis licenses and submitting a recommendation to the Council for final action.  (38a).  In January 2022, the Borough issued a request for applications (“RFA”) for resolutions of support.  The RFA set forth the process the Borough would follow for evaluating applications and included a checklist identifying the required information to be submitted with the application.  (48a-63a)  On October 11, 2022, the Borough published a document titled, Municipal Cannabis Business License Application Evaluation Criteria (“Evaluation Sheet”), via the Borough’s website stating:  “The criteria enumerated thereunder were provided to the public via the Borough’s website, to ensure transparency in the evaluation process and as previously stated, were discussed during various Subcommittee meetings as a means to direct the Subcommittee’s deliberations. ”  Ibid.  The Evaluation Sheet states: “The Borough’s Cannabis Subcommittee will review and evaluate each Applicant based on the following criteria in making its recommendation to the Borough Council. ”  Ibid.  The Evaluation Sheet indicates that a maximum of ten points could be awarded in each category.  Ibid.  B.
[brief] of N. Am., 115 N.J. 451 (1989) | 22,23| | Davis v. United States Steel Supply, 688 F.2d 166, 171-72 (3d Cir. 1982), certiorari den., 460 U.S. 1014 (1983) | 23,24 | | Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman and Stahl, P.C., 237 N.J. 91, 98 (2019) | 30,31 | DiTrolio v. Antiles, 142 N.J. 253, 278 (1995)..............................................36 Donegal Steel Foundry Co. v. Accurate Products Co., 516 F.2d 583, 587-88 (3d Cir. 1975)..................................................................................23 Durham and S. Railway Co. v. Walker, 2 Q.B. 940.............................................17 Estate of Thomson v. Wade, 69 N.Y.2d 570, 516 N.Y.S.2d 614, 509 N.E.2d 309, 310 (1987) (New York).................................................................11,14 Ettin v. Ava Truck Leasing, Inc., 53 N.J. 463 (1969)...........................................21 Figueroa v. Hartford Ins. Co., 241 N.J. Super. 578, 584 (App. Div. 1990)............27 Fisher v. Yates, 270 N.J. Super. 458 (App. Div. 1994).......................................33,34,37 Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016).......................................10 State v. Gonzalez, 75 N.J. 181, 188-92 (1977)..................................................28 Halpern v. Schwartz, 426 F.2d 102 (2d Cir. 1970)...........................................21 Hyland v. Fonda, 44 N.J. Super. 180, 187-92 (App. Div. 1957)..........................18,39 In re Condemnation by Cty. of Allegheny of Certain Coal, Oil, Gas, Limestone, Mineral Properties, 719 A.2d 1, 3-4 (Pa. Commw. Ct. 1998) (Pennsylvania)...11 Joseph L. Muscarelle, Inc. v. State, 175 N.J. Super. 384, 395 (App. Div. 1980), app. dismissed, 87 N.J. 321 (1981).........................................................22,24
[brief] There is no requirement that the $2,000,000 payment be related to the specific impacts of the redevelopment of the [...].  Nor is there any requirement that the $2,000,000 be used to defray the specific costs incurred by the City in connection with the redevelopment of the [...].  Under the LRHL, the City had the broad authority to negotiate the inclusion of a payment obligation to defray any costs of the City, no matter how or when those costs were incurred.  The $2,000,000 payment obligation is therefore lawful, and the Count I of the FAC should be dismissed with prejudice.
[brief] (1)  The 2023 Veto Amendment is procedural in nature and “serves as a tool that bolsters the State’s ability to protect its existing interest,” 4T 16:13-17:2, 28:1-10.  (2)  The 2023 Veto Amendment “does not confer any new right” to the State and does not “destroy any of the defendants’ [rights],” which remain “inviolate,” 4T 17:13-18:14; see also 4T 20:1-3, 28:12-19.  (3)  Whether the relator leads the action or the State has intervened and bears the prosecutorial burden “is of no practical effect on the rights of the defendant here,” 4T 19:13-20:3.  (4)  Prior to the 2023 Veto Amendment, the State had to “formally had to intervene to prevent dismissal,” but “it can now simply notify the Court to achieve the same result,” 4T 15:22-16:1; 4T 26:4-12.  (5)  The procedural changes introduced by the amendment and the authority to contest dismissal “fortifies the State’s procedural toolkit to safeguard it with enduring interest. ”  4T 20:22-21:2.  (6)  Viewing the 2023 Veto Amendment as substantive rather than procedural “would impair the entire statutory framework and render it impracticable” because it would “curtail the State’s ongoing opportunity to intervene when circumstances warrant. ”  4T 22:10-23; see also 4T 23:8-25:10, 26:7-27:25.  (7)  Applying the 2023 Veto Amendment to the pending case was informed by “the imperative of maintaining fidelity to [l]egislative intent. ”  4T 22:24-23:7.  As an alternative ruling, the trial court denied the cross-motions for summary judgment on the substance of the public disclosure affirmative defense.
[brief] It does not “settle” that Plaintiff is entitled to a builder’s remedy for this Property.  Plaintiff also concedes that the court below failed to evaluate the likelihood-of-success factor.  (Pb39).  This Court has held that a judge’s failure to evaluate every *Crowe* factor is an abuse of discretion.  *Waste Mgmt. of N.J.,* Inc. v. Morris Cnty. Mun. Utils. Auth., 433 N.J. Super. 445, 455-56 (App. Div. 2013).  Based on this factor alone, reversal is required.  Moreover, Plaintiff presented no evidence, much less clear and convincing evidence, demonstrating its likelihood of success on the merits of its builder’s remedy lawsuit, i.e., that the Property is suitable.  The court did not explain why it found in Plaintiff’s favor regarding a likelihood-of-success when it did not state its reasons for doing so on the record and when Plaintiff presented no evidence to satisfy its burden.  To be clear, this was Plaintiff’s burden on Plaintiff’s application for injunctive relief.
[brief] *11  At the time the judge ordered the exclusion, there was nothing in the record to suggest a likelihood that the families or other spectators were likely to make improper remarks within the hearing of the jurors.  Moreover, it seems that reasonable alternatives to closure were available.  For example, the judge could have instructed the families and other spectators not to mingle with the potential jurors or say anything concerning the case that might be overheard by them.  If the problem was primarily one of sufficient seating, additional chairs could have been brought into the courtroom so that at least some members of defendant's family and the victim's family could observe the jury selection process.
[brief] (Pa11).  The website further advised that failure to do so by that date would render the member ineligible to apply at a later date.  (Pa11).  On March 3, 2023, the Board received [...]’s Eligibility Registration Form and Request for Amended Benefits Form, both completed on February 23, 2023, as well as a sworn affidavit from [...] dated February 23, 2023.  (Pa11; Pa58; Pa60; Pa57).  [...]’s affidavit asserted, in relevant part, that he “did not receive any correspondence or post card. ”  (Pa56).  The Board considered [...]’s request at its meeting of May 23, 2023, where it voted to deny his request to register under the amended benefits provisions of the Ricci Act.
[brief] This requirement is an element of eligibility as set forth in the Supreme Court's seminal opinion in Richardson v. Board of Trustees, Police and Firemen's Retirement System, 192 N.J. 189, 212-13 (2007), clarifying the meaning of the term "traumatic event" under N.J.S.A. 43:16A-7(1).  As delineated in Richardson, a claimant for accidental disability retirement benefits must establish: (1) that he is permanently and totally disabled; (2) as a direct result of a traumatic event that is a. identifiable as to time and place, b. undesigned and unexpected, and c. caused by a circumstance external to the member (not the result of pre-existing disease that is aggravated or accelerated by the work).  (3) that the traumatic event occurred during and as a result of the member's regular or assigned duties; (4) that the disability was not the result of the member's willful negligence; and (5) that the member is mentally or physically incapacitated from performing his usual or any other duty.  [Ibid. (emphasis added). ]  The Court explained, "[t]he polestar of the inquiry is whether, during the regular performance of his job, an unexpected happening, not the result of pre-existing disease alone or in combination with the work, has occurred and directly resulted in the permanent and total disability of the member."
[brief] See Da72.  The claims against the [...] obviously evaporate if [...] is barred from asserting that the Property was contaminated by Brian and [...], because the sole basis for alleged liability on the part of the [...] is that [...] supposedly knew that the Property was being contaminated by Brian and [...], yet did nothing about it.  See Da72.  For claims to be barred by the doctrine of judicial estoppel, the Court must find that a party has taken a position that is inconsistent with a position previously taken in a legal proceeding.  See, e.g., Cummings v. Bahr, 295 N.J. Super. 374, 385 (App. Div.1996) (relying upon Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d 414, 419 (3rd Cir. 1988)).  Such is precisely what [...] found occurred, when on September 17, 2018 she ruled that the Phillips’ Spill Act claim for contamination to the Property was barred by the doctrine of judicial estoppel.  Da154.  Judge Claypoole found that at the hearing for a hardship stay of eviction the [...] had asserted that the Property had been remediated, and that there no longer was any contamination problem.  Da154.  The Court’s September 17, 2018 ruling that claims by the [...] alleging environmental contamination to the Property are barred by the doctrine of judicial estoppel required that the Complaint be dismissed with prejudice, and that leave to assert the Amended Complaint be denied.  Indeed, each count of the Complaint and proposed Amended Complaint, and the alleged liability of the defendants, hinges upon allegations that Brian and [...] contaminated the Property, and such allegations are inconsistent with the position taken by the [...] at the hardship stay hearing.
[brief] “The Legislature’s intent is the paramount goal when interpreting a statute and, generally, the best indicator of that intent is the statutory language. ”  Ibid.  The goal of statutory construction is to determine the intent of the Legislature, Strasenburgh v. Straubmuller, 146 N.J. 527, 539, (1996), and it is not for the court to “write in an additional qualification which the Legislature pointedly omitted in drafting its own enactment,” Craster v. Bd. Of Comm’rs of Newark, 9 N.J. 225, 230 (1952), or “engage in conjecture or surmise which will circumvent the plain meaning of the act. ”  In Re Closing of Jamesburg High School, 83 N.J. 540, 548 (1980).  Herein, the Legislature enacted the New Jersey Insurance Fraud Prevention Act (“IFPA”) in 1983 with clear intent.
[brief] The relevant statute regulated membership in the Board of Regents, the governing body overseeing South Dakota’s public universities.  Id. at 357.  The statute provided:  The regents who are regular members shall be persons of probity and wisdom and selected from among the best known citizens, residents of different portions of the state, none of whom shall reside in the county in which any state educational institution is located, all of whom shall not be members of the same political party.  Id.  The court held that “if the legislature prescribes qualifications for a particular appointive office, those qualifications must be deemed to be continuing unless the legislature expressly declares otherwise.