ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] INDICTMENT NO. [...] STATE OF NEW JERSEY, Plaintiff-Respondent, v. [...], Defendant-Appellant.  CRIMINAL ACTION  On Appeal from a Final Judgment of Conviction of the Superior Court of New Jersey, Law Division, Somerset County.  Sat Below: Hon. [...], P.J.Cr., and a jury  BRIEF ON BEHALF OF THE STATE OF NEW JERSEY  [...] SOMERSET COUNTY  PROSECUTOR  ATTORNEY FOR PLAINTIFF-RESPONDENT  [...], ATTORNEY NO. 197602017  [...], ATTORNEY NO. 380082022  ASSISTANT PROSECUTORS OF COUNSEL AND ON THE BRIEF  [...] [...] POST OFFICE BOX 3000 [...]  TELEPHONE:[...]  EMAIL: [...]  E-Filed: March 18, 2024
[brief] At the time [...] stepped onto the crossing:  - Train 81 had the proceed signal and the right of way to enter and pass through the crossing; T8:4-9:1; - the pedestrian signal was indicating that she was not permitted to enter the crossing, and she did not have the right of way; Ibid.; - the traffic light for vehicles on York Street was red, indicating that they could not enter the crossing, and a car was stopped at the traffic light on the same side of the crossing as her; Compare Pa162, ¶¶69 and 70 with Pa764, ¶¶69 and 70; Pa257-299; Pa344, 349, 354, 361 at ¶9, and 362 at ¶13; Pa679:16-683:5; and Pa1152 at 16:33:28 to 16:33:35; and - another [...] train travelling in the opposite direction on Track 2 had just left the [...] and was blocking her path across the crossing; Compare Pa163, ¶71 with Pa764, ¶71; Pa214-256; Pa257-299; Pa342-343; Pa1152 at 16:33:28 to 16:33:35; Da51 at 4:33:10 to 4:33:14 (video from security camera).  Plaintiff does not dispute that [...] sounded the horn and bell and applied the train’s full-service brake and track brake less than 1 second after [...] stepped from the sidewalk onto the crossing.  Compare Pa165, ¶79 with Pa765, ¶79; Pa327 at Table 1, Pa351 at Table 2; Pa579:1-12; Pa1152 at 16:33:30 to 16:33:35.  [...] did not attempt to move out of the path of the train prior to the impact, despite the horn, bells, and presence of the train.
[brief] [Pa50 at Recital D; Pa93-95].  In other words, the Money Judgment represented [...]’s past-due liability that both parties agreed was due as of that date to secure performance of its settlement obligations.  [Id., Pa52 at ¶ 4].  But because [...] did not comply with its settlement obligations, [...] was entitled to enforce the parties’ agreed-upon remedy and to present the Money Judgment for entry in an amount equal to that past-due Arrearage.
[directive] For example, the Attorney General has the statutory authority to investigate and pursue civil and administrative violations of certain statutes, including but not limited to the Law Against Discrimination, the Civil Rights Act, the False Claims Act, the Consumer Fraud Act, and the Charitable Registration & Investigation Act.  In addition, the Attorney General serves as legal counsel for state agencies exercising their own civil or administrative enforcement authority, including but not limited to the Departments of Environmental Protection, Banking & Insurance, and Labor & Workforce Development, as well as units within LPS, including the Divisions of Alcoholic Beverage Control and Gaming Enforcement.  The same guidelines apply to LPS employees when carrying out the Attorney General’s civil enforcement authority as when prosecutors and law enforcement officers are performing law enforcement matters.
[brief] Mogull v. CB Com. Real Est. Grp., Inc., 162 N.J. 449, 466 (2000).  See State v. Ramirez, 246 N.J. 61, 70 (2021) (Court found no plain error where the judge read the model charge verbatim, and no objection to the endangering instruction was made at trial).  The Scope of Review in this matter is governed by N. J. R. 2:10-2, the de novo standard, with respect to the application of law; however, deference must be given to the trial Court relative to its determination of fact.
[brief] As previously noted, [...]’ lease obligates it to maintain only a “sidewalk” or “driveway” adjacent to its rental premises.  Plaintiffs do not argue that [...] fell in a “driveway. ”  Instead, they create some kind of “walkway” (as defined by their experts) in the parking lot, and mistakenly equate this “walkway” with a “sidewalk. ”  This argument must fail for several reasons, including [...]’s prior sworn statements.  Plaintiff’s certified answers to interrogatories stated that he fell in the “parking lot. ”  (Pa842; Pa1144)  He also confirmed at his deposition that the area in which he had fallen was not a “walkway” or a “sidewalk;” it was “actually part of the parking lot. ”  (Pa845; Pa513, Pa1148)  The photographs he had taken following his fall supported his statements that he had fallen in the parking lot.  (Pa846-849; Pa1149-1151)  The trial court properly declined to consider plaintiffs’ belated attempt to repudiate [...]’s prior sworn statements to enhance their position.  This court should follow its lead.
[brief] *Id.* at 420.  If this Court “is not concerned with hearsay information relied upon by a police officer in making an arrest”, it stands to reason that it would also not be concerned with the admission of hearsay information that was relied upon by a police officer in establishing reasonable suspicion to support an investigatory stop.  This is particularly true in this case in which the hearsay is the contents of a 9-1-1 call, given that information received via a 911 call is “treated as more reliable than other anonymous tips. ”  *See State v. Gamble*, 218 N.J. 412, 429 (2014).  Notably, *Bynum* is the case that Defendant relied upon when arguing to the trial court that [...]’s testimony related to the 911 call was inadmissible hearsay.  *Bynum*, in fact, stands for the opposite proposition.
[brief] Here, the facts surrounding Plaintiff’s termination contain sufficient weaknesses in Defendants’ purported reason for termination that the jury may find them unworthy of credence.  Defendants claim that Plaintiff, along with [...] and [...], were terminated for adding an extra one dollar per hour as “charge pay” to certain shifts they worked during 2020.  It is Defendants’ position, and the testimony of their witnesses including Defendant [...], that this charge pay was coincidentally “discovered” by Defendant [...] around the same time that Defendant [...] initiated her investigation into the latest complaints about Defendant [...] arising from the June 2020 incident with [...].  However, this termination rationale is weakened by a fundamental factual dispute which precludes summary judgment.
[brief] Just as in *Hubbard* and its progeny, the acts of [...] and [...] were well within the common knowledge of lay jurors as they were charged essentially with theft of clients’ assets, i.e., the drawings, schematics, and related work papers and data contained within plaintiffs’ client files.  This was no different from a lawyer using a client’s information, gathered during the client’s representation, to then provide the same representation to a competitor of the client.  Not only would such brazen theft of client information be unethical, it is a deceptive, fraudulent act of stealing from the prior client to service the next client and should not be countenanced by any rational legal system.  Stealing from plaintiffs then using the same set of drawings, schematics, and underlying data to service the same Planning Board process on behalf of anyone, whether [...] or a totally new client, amounts to the same misconduct: theft of client information.  The nature of the conduct, the breach of client confidentiality and loyalty is so readily appreciable that lay jurors need no professionals to set any standard or explicate the qualitative nature of the conduct involved.  Lay jurors understand the “deviation” from honest practice; they can assess the evidence and call the “strike” without an “umpire. ”  Defendants’ conduct is plainly “a matter within the knowledge of the average citizen or juror. ”  *Aster v. Shoreline Behavioral Health*, 346 N.J. Super. 536, 788 A.2d 821, 825 n. 4 (App.Div. 2002).  Because these defendants’ theft of plaintiffs’ client work product, for which they had been fully paid, can be transparently understood as theft of client’s paid-for work product, and clearly improper and unethical in the view of any lay person, the grant of summary judgment by reference to the AOM Act should be reversed as a matter of law.
[brief] On February 14, 2024, [...] filed a Complaint in the Superior Court of New Jersey, Law Division.  Da001 – Da009.  In that Complaint [...] asserted claims sounding in breach of contract (Da003), breach of the implied covenant of good faith and fair dealing (Da004), fraud (Da004 – Da006) and implied contract/unjust enrichment (Da006 – Da007).  The contract that [...] allegedly breached called for [...] to install finish wood trim in a new home that [...] was constructing.  Da002; Da067.  On April 3, 2024, [...] filed a pro se Answer, Defenses, and Counterclaim against [...].  Da010 – Da018.  By his Counterclaim, [...] alleged that [...] was overpaid for work performed and demanded return of the overpayment.  Da014.  [...] alleged entitlement to treble damages under the New Jersey Consumer Fraud Act.  Da014.  He also alleged that [...] violated the New Jersey Builders Registration Act and the New Jersey Home Improvement Protection Act.  Da014.  [...] filed its Answer to Counterclaim and Defenses on April 26, 2023.  Da019 – Da023.  On September 13, 2023, [...] filed a Motion to Suppress Answer and Dismiss Counterclaim, stating that [...] was in default of discovery obligations.  Da024 – Da026.  [...], continuing to represent himself as a pro se litigant, opposed the motion with a Certification that he filed on September 28, 2023.  Da027 – Da029.  In that Certification [...] stated that he used good faith and best efforts to comply with discovery obligations.  On October 19, 2023, [...] withdrew its motion.  Da030.  Thus, no argument was held or decision rendered.  Present counsel for [...] was retained and filed a Substitution of Attorney on December 19, 2023.  Da031.  Thereafter, by Stipulation, the discovery end date was extended to March 28, 2024.  Da032.  Prior to that discovery end date the Parties exchanged written discovery and one deposition had been conducted.  Da045; Da048; Da050 - Da057.  As the result of discovery motion practice, by Order dated April 15, 2024, the discovery end date was extended to June 1, 2024.  Da034 – Da035.  On March 25, 2024 Counsel for [...] filed a Motion to Stay Proceedings and Compel Arbitration.  Da041 – Da043.  That Motion was opposed by [...] on April 4, 2024.  Oral argument was conducted on April 12, 2024 at the conclusion of which the trial court denied the Motion.  T.3-1 – T.24-23.  An Order to that effect was signed and filed on April 15, 2024.  Da033.  [...] timely filed a Notice of Appeal on April 22, 2024, as permitted by Rule 2:2-3(b)(8).  Da036.  STATEMENT OF FACTS
[brief] These postcards contained financial information related to the referendum, and stated: “Remember to VOTE on the District Construction Referendum. ”  (36a-37a.)  Around that same time, lawn signs began to appear in neighborhoods around the District.  The signs contained the message “Vote YES November 2 On School Funding,” and provided a link to the District’s webpage containing information concerning the referendum.  (35a.)  Petitioner does not allege that Respondents or any District administrator created or disseminated these signs, or directed anyone else to do so.
[brief] For example, in *State v. [...]*, 318 N.J. Super. 123, 130 (App. Div. 1999), detectives investigating an infant’s death “asked defendant to accompany him to the Hudson County Prosecutor’s Office, and she agreed to do so.  He did not advise her that she was free to refuse his request. ”  The detectives “put defendant in the back of their unmarked vehicle and drove her to the prosecutor’s office where … she was placed in a ten-by-ten-foot room in the homicide unit for further questioning. ”  *Ibid.*  During the interview, detectives “sat on either side of her. ”  *Ibid.*  [...] “then took the oath and gave a formal tape-recorded statement,” comprising “twenty-five pages of transcribed questions and answers. ”  *Id.* at 131.  She was not advised of her *Miranda* rights.  *Ibid.*  This Court concluded “that the court erred in admitting the statement. ”  *Id.* at 135.  This Court cited several reasons for determining that [...] was in custody.  *Ibid.*  “The circumstances included the “inherently coercive physical environment of the prosecutor’s office, the length of time defendant remained at the office, and the nature of the questions put to defendant.  These were such that a reasonable person in defendant’s position would have realized she was a target of the prosecutor’s investigation and was not free to leave. ”  *Id.* at 134.  The Court noted that “before the questioning began, defendant was warned of the solemnity of the oath, was sworn to tell the truth, and was then asked questions designed to elicit incriminating responses. ”  *Ibid.*  Similarly, in *State v. [...]*, 131 N.J. Super. 168, 172 (App. Div. 1974), detectives investigating a shooting sought to interview several people present.  [...] “learned through his girlfriend that the police wanted him to come to the police station, and he voluntarily did so. ”  *Ibid.*  This Court concluded that [...] was “deprived of his freedom of action to a significant degree and was entitled to full *Miranda* warnings before any statements made by him thereafter could be considered voluntary. ”  *Id.* at 178.  This Court cited several reasons for determining that [...] was in custody.  *Id.* at 177.  [...] was interrogated “in a room cut off from the outside world; a police-dominated atmosphere. ”  *Ibid.*  Moreover, detectives “were in possession of information indicating to them that (1) defendant had lied to them, (2) defendant was present at the shooting and (3) defendant was actually the man who shot. ”  *Ibid.*  As in *Hubbard*, *Stott*, *Ahmad*, *[...]*, and *[...]*, the evidence that [...]’s freedom of movement was constrained is overwhelming.
[directive] 4.1.2  The internal affairs function or officer will investigate alleged misconduct by members of the agency and review the adjudication of minor complaints handled by supervisors.  In addition, internal affairs shall receive notice of: (a)  Any firearm discharge by agency personnel, whether on-duty or off-duty, unless the discharge occurred during the course of: (1) a law enforcement training exercise; (2) routine target practice at a firing range; (3) a lawful animal hunt; or (4) the humane killing of an injured animal; (b)  Any discharge of an agency-owned firearm by anyone other than agency personnel; (c) Any use of force by agency personnel that results in injury to any person, (d) Any vehicular pursuit involving agency personnel; and (e) Any collision involving agency-owned vehicles.  Upon receiving notification, the agency’s internal affairs function shall document the incident and determine whether additional investigation is necessary.
[brief] ”  Pa1; Pa54.  Despite ruling on excessiveness grounds, the ALJ acknowledged that, “[s]ignificantly, the regulations and [the] Act do not define what constitutes excessive. ”  Pa84.  Nor is the statutory term “excessive” self-defining such that a regulated entity would have any idea how not to run afoul of it or what standard it set to govern proposed rates, as the Department tacitly recognizes.  See id. (invoking selected dictionary definitions); see also infra § I.B.2 (discussing the Department’s ad hoc attempt to impute meaning to the term).  For example, nowhere does the Act set forth a range of rates deemed presumptively non-excessive, as contrasted with the “loss ratios” that the regulations address in quantitative terms.
[brief] As Appellants argued in their Opposition to Respondent’s Motion to Dismiss:  Importantly, the Commission has already addressed the issue of “newly elected” Board members and whether they are subject to the School Ethics Act, specifically defining “newly elected” Board members in N.J.A.C. 6A:28-1.2, and stating in Advisory Opinion 36-17 (Jan. 3, 2018) that:  Similar to all other newly elected, as well as currently seated, Board members, this Board member is bound by and charged with understanding and complying with the ethical standards set forth in the Act.  https://www.nj.gov/education/legal/ethics/advisory/cat1/A36-17.pdf (Ca194).
[brief] State v. Mahoney, 188 N.J. 359, 373 (noting New Jersey evidence rules bar evidence “concerning how defendant acted in instances other than those at issue in the case”), cert. denied, 549 U.S. 995 (2006); accord, United States v. Walker, 191 F.3d 326, 336 (2d Cir. 1999) (holding preparation of non-fraudulent asylum applications not relevant to charges concerning other applications), cert. denied, 529 U.S. 1080 (2000); United States v. Scarpa, 897 F.2d 63, 70 (2d Cir.) (ruling “defendant may not seek to establish his innocence . . . through proof of the absence of criminal acts on specific occasions”), cert. denied, 498 U.S. 816 (1990) (ellipsis added).  Here, defendant offered evidence of a claimed character trait, not habit.  The judge properly ruled such evidence inadmissible.  POINT VIII
[brief] •  The family then continued on their trip and went from Virginia to Bethany Beach, Maryland and provided a family photo of her and her family in Bethany Beach, Maryland on August 26, 2021 with GPS and time data.  217a.  •  Defendants provided a hotel receipt from the [...] in Chincoteague, Virginia showing that a reservation deposit was made on August 22, 2021 (day before purported service) and that the [...] stayed at the hotel from August 23, 2021 (day of purported service) through August 25, 2021.
[brief] The Brennan Court, like the Bozzi Court, observed that OPRA contains exceptions for home addresses only in “limited situations,” and does not contain an “overarching exception for the disclosure of names and addresses. ”  Brennan, 233 N.J. Super. at 337.  The critical concept contained in both Bozzi and Brennan, is that Legislative inaction regarding the [...]’s recommendation that email addresses be treated the same as unlisted phone numbers “strongly caution[ed] against creating a judicial exemption[.]”  Bozzi, 248 N.J. at 285.  The analysis of the Courts in Brennan and Bozzi exactly applicable here.  As referenced earlier, the [...] recommended that email addresses, like home addresses, “should be accorded the same protection as unlisted telephone numbers, i.e., they should remain confidential. ”  But the Legislature has never acted upon that recommendation in the intervening thirteen years, even though it has had plenty of opportunity.  The Legislature has never adopted an “overarching” exception for email addresses, even though proposed amendments that would exempt e-mails under OPRA have been filed in at least the last four legislative sessions, including the current one.  (Pa198 to Pa227).  While this is not dispositive, the absence of legislative action on this issue suggests that the Legislature does not intend that all e-mail addresses be confidential.  Bozzi, 258 N.J. at 285 (“[T]he Legislature’s inaction with respect to the recommended exemptions strongly cautions against creating a judicial exemption in this context. ”).  Private email addresses should be treated like home addresses: they are public unless made exempt under specific circumstances.  Brennan, 233 N.J. at 337-38; Bozzi, 248 N.J. at 286.  When conducting a privacy analysis,\(^2\) the Court must analyze seven factors.
[brief] *Id.* at 159-60.  The Court found that circumstances were not unforeseeable, as the officers “reasonably anticipated and expected they would find drugs” in the car before the canine alert.  *Id.* at 172.  Nor were the circumstances spontaneous, as they “did not develop, for example, suddenly or rapidly. ”  *Id.* at 173.  Rather, the stop “was deliberate, orchestrated, and wholly connected with the reason for the subsequent seizure of the evidence. ”  *Id.* at 172.  The Court noted that the proper inquiry into whether the circumstances are unforeseeable and spontaneous assesses all the circumstances leading to probable cause, not just the last one.  Although the officers “did not have probable cause to search the [car] well in advance of the warrantless search,” the “fact that the canine sniff is what culminated in probable cause does not eviscerate the steps that led to the sniff. ”  *Id.* at 173-74.  Here, as in *Smart*, the warrantless car search was illegal because the circumstances leading to probable cause were neither unforeseeable nor spontaneous.
[brief] So, it says and other pertinent facility documents, including staffing reports, right?  A  That's what it says.  Q  Okay.  And just so everyone's clear, they actually wrote in this letter that after evaluating this information and conducting interviews, the surveyor was unable to identify a citable deficient practice related to your concerns based on the State and federal regulations.  Is that correct?  A  That's what it says.  7T295:24-302:20.
[directive] Automatic Plea Cut-Off Feature.  When a prosecutor in the exercise of discretion elects to invoke the new complex/protracted litigation downward adjustment, the defendant shall be re- quired to accept the offer or proceed to trial.  Notwithstanding any other provision of the “Brimage” Guidelines, a prosecutor invoking the new complex/protracted litigation downward adjustment feature is not authorized to tender any further plea offer other than one calculated as a result of a material change in circum- stances warranting a new calculation (compare the standard for waiving the formal plea cut-off rule in R. 3:9-3(g)) or a substantial cooperation offer, which may be tendered at any time in accordance with Part X of the “Brimage” Guidelines and Attorney General Directive 1998-1.
[brief] POINT 1:  As a matter of law, the plaintiff is entitled to judgment versus the [...].  (Not argued below)  The evidence of law, and evidence of the cause of action via brief filed in support of award of judgment in the lower court - in record - merely need to be confirmed by a jury empaneled by the presiding judge at this point in order to find in [...]’s favor.  (See appendix pp. AB41a - AB59a for copy of brief in support of judgment filed in lower court via a breach of statute negligence claim)  As there is sufficient law to sustain a recovery, the January 7, 2010 [...] summary judgment order was in error.
[brief] Assisting me as I tried to navigate the retirement process, made immeasurably more complex by the restrictions placed on person-to-person contact during the pandemic, was my then boss, the Honorable [...], J.S.C.  I had originally planned to retire in the fall of 2021, but delayed retiring until February 1, 2022 (after consulting with [...]) to make sure that I would have the option of health insurance and life insurance benefits when I retired.  I drove from my home to the Essex County Courthouse (at the height of Covid), to hand deliver checks paying the premiums on my health insurance.  Oftentimes, it was difficult to gain access because there was virtually no one in the Courthouse.  I had to drop the checks in the Human Resource mail-slot.  I was concerned that the checks would not be received because of an absence of mailroom personnel as well.  Does anyone doubt that I would not have done the same thing – paying my pension contributions when I was on FMLA leave – to avoid the retirement disaster that I now face (i.e., my family will most likely not be able to cover my funeral expenses without my $9,952.12 life insurance benefit.)  I retired on February 1, 2022 and was confident that I had my full pension and life insurance benefits.  Ignoring these facts, respondent represents to this Court that I knew ("it was evident to [...]") when I retired on February 1, 2022 that I was not entitled to any life insurance benefit.