ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[directive] Page 92  Attorney General Brimage Guidelines 2 (2004 Revisions)  Nothing herein shall be deemed in any way to limit the authority of a prosecutor to tender a plea offer requiring the defendant to plead guilty to the Brimage-eligible offense and also to a violation of N.J.S.A. 2C:39-4.1 in circumstances where the prosecutor is not required by this Section to tender such an offer.  Prosecutors in other words, retain the discretion to charge and pursue prosecution for a violation of N.J.S.A. 2C:39-4.1 (a non-Brimage-eligible offense) in cases involving the constructive, non-immediate possession of a firearm (other than an assault firearm or machine gun) during the course of committing a Brimage-eligible offense.
[brief] There are no published New Jersey cases directly on the application of this Federal Statute.  The issue was discussed by [...] in her concurring opinion in Ogunyemi v. Garden State Medical Center 478 N.J. Super. 310,324 (App. Div. 2024)  The Federal courts provide clear guidance that the March 3, 2022, amendment to the FAA prohibits the employer enforcing pre-dispute agreements compelling arbitration for claims accruing after the effective date of the statute.
[brief] (Program Administrator for [...]), [...] and [...], [...], as Executrix of the Estate of [...], and [...] attorneys and advisors, Defendants/Respondents.  SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION  Docket No. [...]  Civil Action On Appeal from a Final Judgment of the Superior Court, Law Division, Monmouth County  Sat below: Hon. [...], J.S.C.  [...]  REPLY BRIEF OF PLAINTIFFS-APPELLANTS  #
[brief] The reason for their omission is explained further below.  In a letter to the Civil Service Commission, the City admitted that it was unaware of the necessity to have “genuine vacancies” before promoting, and further admitted to using the [...] and [...] retirements to retroactively create “genuine vacancies” for the July 2022 promotions, contrary to Civil Service precedent.  In its decision, the CSC states,  In reply, the appointing authority indicates that the vacancies left by the retirements of [...] and [...] were filled by appointments made from the April 20, 2022 certification ([...]) and did not exist as of January 16, 2023.  The CSC acknowledged that the 2022 vacancies created by [...] and [...]’s retirements were used for purposes of the July promotions.  Accordingly, and as per Civil Service’s Final Decision here, as there were no “genuine vacancies” for the July 2022 promotions, such were unlawfully made and are, therefore, invalid.  Notably, the Civil Service Commission closed the certification of the July 2022 promotions in August 1, 2022 notwithstanding their invalidity.
[brief] ”  Whirlpool Props., Inc. v. Dir., Div. of Tax’n, 208 N.J. 141, 172 (2011) (alteration in original) (internal quotation marks omitted).  “[W]hen a statute may be open to a construction which would render it unconstitutional or permit its unconstitutional application, it is the duty of th[e] Court to so construe the statute as to render it constitutional if it is reasonably susceptible to such interpretation.
[brief] (Da78, ¶25-26; Da89, ¶53; Da104, ¶99).  Others professed complete ignorance as to the terms and conditions they knowingly assumed and affirmed in writing while acknowledging they’d do anything to be released from their contractual obligations.  (Da80, ¶34; Da86, ¶47; Da91, ¶64; Da96, ¶79).  But most incredibly, four (4) of the plaintiffs admitted that they decided to file a lawsuit only after hearing “timeshare exit” advertisements guaranteeing termination of their contracts or after being solicited by the “team”.
[brief] “Preliminary injunctive relief is an extraordinary remedy and should be granted only in limited circumstances. ”  American Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994) (citations omitted).  “[O]ne of the goals of the preliminary injunction analysis is to maintain the status quo, defined as the last, peaceable, noncontested status of the parties.”  Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004) (citations omitted).  In In re Wedgewood Realty Group, Ltd., 878 F.2d 693 (3d Cir. 1989), the Third Circuit provided the necessary elements needed to be established to obtain a preliminary injunction: 1. substantial likelihood of success on the merits; 2. irreparable harm to the movant if the requested relief is denied; 3. harm to the movant outweighs any harm to the non-movant; and 4. granting the injunctive relief would not violate the public interest.
[brief] [...] argues that, even though it never once mentioned arbitration in its pleadings, it somehow preserved its arbitration rights through two general boilerplate affirmative defenses that “[...] has not intentionally relinquished any right” and “the court lacks subject matter jurisdiction. ” (Db34-35.)  However, the word “arbitration” appears nowhere in [...]’s answer or affirmative defenses.  *Cole*, 215 N.J. at 277 (“we recognized certain circumstances can demonstrate waiver of a contractual arbitration right.  Those circumstances include ... filing an answer and counterclaim without referring to a contractual arbitration provision...”)  Cryptic references such as these are not reasonably sufficient to put [...] and other parties on notice of an intent to arbitrate. \(^5\)  The New Jersey Supreme Court has explained that a court will consider an agreement to arbitrate waived ... if arbitration is simply asserted in the answer and no other measures are taken to preserve the affirmative defense.
[brief] Armstrong v. Manzo, 380, U.S. 545,550, 85 S. Ct. 1187, 1190,14 L. Ed. 2d 62 (1965)  14, 18, 25, 34  Arrow Mfg. Co v. Levinson, 231 N.J. Super, 527, 534, 555 A2d 1165 (App. Div. 1989)
[brief] Under the analysis in Notte, a court first looks at prejudice to the non-moving party, and then, if there is no prejudice, may still deny the amendment if it is futile.  If the non-moving party is prejudiced by the amendment, there is no need to separately evaluate whether the amendment is futile.  Here, the trial court used its discretion to retroactively permit two amendments filed without leave of court, including one made seven days before trial, but denied a third amendment filed the Friday before a Monday trial.  The court based its decision on the timing of the amendment, the prior availability of the underlying facts, the introduction of a new legal theory, and the resulting prejudice to Petitioner, both in defending against the new claim specifically and to overall case strategy.  That is exactly the discretion --- 1 Counsel states that as far as he can tell no motion to amend has ever been denied.  (Rb12).  However, as nearly all of these cases are decisions which exist only in trial transcripts or ecourts dockets and not on Lexis or Westlaw, such a statement is without merit.  The cases cited by Respondent represent a small sample of election cases which are known only because of respective counsel’s involvement in those cases.  afforded to a trial court on a motion for leave to amend and is far from an abuse of discretion, even if another trial judge would have resolved the matter differently.  The trial court’s ruling was not only reasonable, but it was grounded in established policy and made on a permissible basis; thus, it stands as a textbook example of sound judicial discretion and should be upheld.
[brief] He stated that he never received any complaints about his work, never was written to, and received no text messages or phone calls.  1T61:2-17.  This contradicted his earlier testimony that [...] “had a lot of other issues” where he claimed to have done “most [but not all] of the work,” 1T:54:12, and “I’m sure he had complaints, but everything always got resolved,” 1T60:6-7, and even agreed to refund $5,000.00 on one project.  [...] first testified that he didn’t receive text messages from [...], but was quickly forced to admit that this wasn’t true either:  Q.  Did you ever receive any objections from [...]?  A. No. Q. Ever?  A. No.  Q.  Did he ever write to you or text you saying there were problems with the jobs.  A.  I don’t have any text messages from him.  [1T61:2-9].
[brief] Denying the plaintiff the use of such evidence struck at the heart of plaintiff’s case.  See Evid. R. 803(b)(4).  Hearsay Exception.  Statement by Party-Opponent.  Compare Evid. R. 701.  Opinion Testimony of Lay Witnesses.  Plaintiff respectfully submits that the plaintiff should have been permitted to introduce testimony and evidence of the actions of defendant’s employee, [...], whose actions were based upon her observations and perceptions of the conditions of the lobby at the time of the plaintiff’s fall.  Her actions constituted a highly relevant and reliable lay opinion that the wet lobby floor constituted a slip hazard.  Proving the slippery nature of the wet floor was critical to the plaintiff’s case.  As such, this evidence would have aided the triers of fact in considering and weighing both the plaintiff and defense testimony, and in reaching a just verdict.
[brief] ”  Id. at 256.  See also State v. Green, 239 N.J. 88, 106 (2019) (considering “the issue of multiple viewings of the same person during an identification procedure” in the context of a mugshot database, and concluding that because there was a risk that witness could be exposed to the same person multiple times, “the State will have the obligation to demonstrate that an eyewitness was not exposed to multiple photos or viewings of the same suspect” in the identification procedure).
[brief] The Proposed Regulator Station Is Not A Reliability Project, But A Costly Stranded Asset In The Making  [...] has persistently claimed throughout this proceeding and its brief that the proposed gas combustion regulator is a "reliability project," [...]b36-37, as if the mere incantation of that phrase will excuse all manner of refusal to comply with the law.  It also persistently claims that the proposed regulator is not a capacity expansion project, which is tantamount to an admission that if it is a capacity expansion project, it should be subjected to severe scrutiny.  The ID and the Decision seemingly accepted this claim.  But it is demonstrably factually incorrect, and thus the ID and Decision are arbitrary and capricious in relying on this claim to support their decisions.  This "reliability project" claim arbitrarily and capriciously conflates two separate and discrete infrastructure installations at least a decade apart.  The company claims that the installation of the 16-inch pipe was a reliability project, because federal regulations required that its system be capable of safety inspections by means of an internal device known as a pig.  Hb6.5
[brief] For expert testimony under N.J.R.E. 702 to be admitted, “(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; ⁴ 253 N.J. 133, 138-39 (2023) (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony. ”  *In re Accutane Litigation*, 234 N.J. 340, 349 (2018) (quoting *State v. Kelly*, 97 N.J. 178, 223 (1984)).
[brief] On cross-examination, [...] was shown a November 12, 2015 email from resident engineer [...], P.E. directed to general contractor [...] regarding the post-accident paving.  (3T179:23-180:3).  [...] agreed that as the email --- \(^3\) Plaintiff correctly notes the trial court ruled that the admission of the post-accident paving records was precluded by N.J.R.E. 407.  Plaintiff, however, asserts that the trial court misinterpreted the governing rule in making its ruling.  The court rule is clearly applicable as it bars evidence of remedial measures performed after an event to prove an event was caused by negligence or culpable conduct.
[brief] The court denied summary judgment on this issue because it held Plaintiffs could establish that they suffered a special injury.  Id. at 95-18 to 96-21.  However, as discussed below, there were no factual disputes establishing that Plaintiffs suffered a special injury, which would permit Plaintiffs to pursue their conversion claims directly instead of derivatively on behalf of [...] and [...].  Id. at 91-3 to 96-21.  “Standing is a threshold requirement for justiciability.
[brief] Defendant, [...] contends that the trial court properly granted summary judgment because: Plaintiffs cannot prove that [...] was negligent without expert testimony; Plaintiffs cannot establish that it breached any duty; and, [...] did not fail to preserve evidence.  [...] attempts to shift the Court’s focus away from the central issue in this case – that is, the spoliation of surveillance footage leading up to, and including the moment, co-Defendant [...] struck and injured Plaintiff with an overloaded [...] U-boat.  [...] should not be permitted to have engaged in self-serving maneuvers and benefit from the destruction of evidence it rightfully knew would have aided Plaintiffs in proving their case and be permitted to escape liability by claiming that Plaintiffs lack the requisite proofs to prove their claim.  Plaintiffs assert that because of [...]’s failure to maintain the surveillance footage, Plaintiffs are entitled to an adverse inference jury charge and rebuttable presumption that the missing evidence would be unfavorable to [...].  Moreover, Plaintiffs contend that they can establish negligence on the part of [...] without the need for expert testimony.  Separately, co-Defendant, [...] contends that the trial court’s grant of summary judgment was appropriate because at the time [...] struck Plaintiff, [...] was an independent contractor and not an employee and that [...] cannot be found liable.  Plaintiffs assert that [...] should be found vicariously liable for [...]’s negligent acts under one of the recognized exceptions pertaining to independent contractors.  LEGAL ARGUMENT I.
[brief] Parental Rights are Protected by the Constitution.  The Amici attempt to downplay the fundamental constitutional right of a parent under the Fourteenth Amendment to make decisions concerning the care, custody and control of their children.  As noted by [...]:  “The liberty interest at issue in this case—the interest of parents in the care, custody, and control of their children is perhaps the oldest of the fundamental liberty interests recognized by this Court.  More than 75 years ago, in Meyer v. Nebraska, 262 U.S. 390, 399, 401 (1923), we held that the "liberty" protected by the Due Process Clause includes the right of parents to "establish a home and bring up children" and "to control the education of their own."  Two years later, in Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925), we again held that the "liberty of parents and guardians" includes the right "to direct the upbringing and education of children under their control."  We explained in Pierce that "[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations."  Id. at 535.  We returned to the subject in Prince v. Massachusetts, 321 U. S. 158 (1944), and again confirmed that there is a constitutional dimension to the right of parents to direct the upbringing of their children.  "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder."  Troxel v. Granville, 530 U.S. 57 (2000).  As recognized by the Amici, the constitution prohibits governmental actors from interfering with parental decision-making on matters of great-importance.  The interest of parents in the care custody and control of their children is clearly a matter of great importance and recognized as the oldest fundamental liberty interests by the Supreme Court.  *Id.*  Notwithstanding, the Amici advocate for school districts to maintain a policy of presumptive nondisclosure.
[brief] It cannot be that post-bid supplementation of a material requirement is unlawful but the potential availability of the information to the public entity via record request eliminates that issue.  Not only would that undermine a bidder’s obligation to comply with statutory and specification requirements and place unnecessary administrative burdens on public entities, it risks creating significant legal and factual issues for judicial determination about the public entity’s ability to access the relevant information and at what point the means of access becomes too burdensome.  In short, [...]’s arguments below that it could not avoid its bid because it was actually classified by [...] is nonsensical, the County could only award to [...] after learning that [...] was qualified to perform the Project, so all [...] had to do to avoid its bid was refuse to provide its [...] Notice.
[directive] Pending Charge  Under N.J.S.A. 2C:35-7.1  A defendant shall not be deemed to be ineligible for a standardized “open” plea offer on the grounds that the conduct constituting the school zone offense to which the defendant will plead guilty also constitutes a violation of N.J.S.A. 2C:35-7.1 (distribution or possession with intent to distribute while within 500 feet of a public park, public housing facility or public building).  It should be noted that the crime defined in N.J.S.A. 2C:35-7.1 is not a Brimage-eligible offense, that is, one that carries a mandatory term of imprisonment and parole ineligibility subject to waiver pursuant to N.J.S.A. 2C:35-12.  However, this offense is designated as a second-degree crime and is therefore subject to the presumption of imprisonment set forth in N.J.S.A. 2C:44-1d, so that a court upon conviction for this crime would generally be precluded from imposing a probationary sentence (including one where the defendant is incarcerated in county jail as a condition of probation) unless the court finds that imposition of a State Prison term would constitute a serious injustice which overrides the need to deter such conduct by others.  Consistent with the general provisions of Section 1.1, nothing in this Section or any other provision of these Guidelines shall be construed to require a prosecutor to refrain from charging a violation of N.J.S.A. 2C:35-7.1, or to require a prosecutor to dismiss or downgrade any such provable charge.
[brief] Initially, [...]’s representation of the Trust language is misstated.  [...] states that Section 3.6A(7) provides that only “50% of any residuary assets that would have passed to [...] under [...]’s Revocable Trust pass to [...] . . .” (Pb33).  However, Section 3.6A(7) clearly and expressly provides that 100% of the residuary assets go to [...], stating that:  My Trustee shall distribute to CLAUDIA, if she is then surviving, or if she is not then surviving, to [...], if she is then surviving, subject to Article IV of this Agreement, the remaining assets of the Trust Estate after the distributions provided in subparagraphs (2) through (4) of this Paragraph A. (Da58). \(^4\)  Notwithstanding his incorrect description of the Residuary Clause, [...] admits that [...]’s interest in the Palm Beach Property “passes through the residuary clause found in Section 3.6A(7) of [...]’s Revocable --- \(^3\)  Again, the only extrinsic evidence advanced by [...] was the email discussed above.  As discussed above, that email has no probative value and was properly not considered by the Probate Court.  In addition, the email, drafted by [...]’s former counsel in August 2021, gives no insight as to [...]’s intent in drafting her amended trust in March 2007.  \(^4\)  The remainder of the Residuary Clause states that if neither [...] nor [...] survive, then 50% of such assets pass to [...], and 50% to Michael [...].  Trust. ” (Pb32; see also Db29).  It is undisputed that (1) [...] is not surviving; (2) [...] is; and (3) the “distributions provided in subparagraphs (2) through (4) of [Section 3.6A]” are irrelevant to this dispute.  It necessarily follows, as a matter of logic and by the plain text of the Residuary Clause, that the Palm Beach Property passes to [...].  It really is that simple.  [...]’s only rejoinder is to insist that even though the Palm Beach Property passes through the Residuary Clause, the Residuary Clause should not be applied as written because [...] did not include the Palm Beach Property in a separate gift to [...] elsewhere in the Trust.  (See Pb32-33).  As [...] explained, that defies logic – just because [...] did not include a specific reference to property in one part of the trust does not imply an intention to exclude it from the Residuary Clause.  (Db32-33).  Moreover, [...]’s argument clearly requires reformation of the trust instrument.  Even if it were true that [...]’s wishes with respect to the Palm Beach Property could be inferred from another section of the Trust, [...]’s construction still requires that language be deemed to be written into the Residuary Clause and the clause to not be applied as written.  That is the very definition of reformation.  [...] came forward with no evidence, much less the required clear and convincing evidence, to justify such a result.
[brief] **CONCLUSION**  If the Appellant’s rights pursuant to the New Jersey Constitution are intended to mean anything, this appellate panel must reckon with the trial court’s illogical and erroneous treatment of the Appellant, as both the attempted logic and outcome of the trial court is unsupported by any statute, court rule, or precedent.  Most precisely, by finding that the Appellant’s State law claims accrued when the verdict was announced and not when the judgment of acquittal was entered, the trial court below ostensibly invoked new law, which obviously conflicted with well-reasoned and sound public policy.  The trial court’s unfortunate treatment of this civil rights litigation as a slip-and-fall case surely constitutes error in violation of well settled constitutional notions for due process.  For the reasons set forth hereinabove, it is most respectfully submitted that this Court ought properly reverse the trial court’s dismissal of the Complaint as untimely.
[brief] See *Tower Marine, Inc. v. New Brunswick*, 175 N.J. Super. 526, 531 (Ch. Div. 1980).  N.J.S.A. 59: 1-2, the legislative declaration of the TCA states:  The Legislature recognizes the inherently unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity.  On the other hand the Legislature recognizes that while a private entrepreneur may readily be held liable for negligence within the chosen ambit of his activity, the area within which government has the power to act for the public good is almost without limit and therefore government should not have the duty to do everything that might be done.  Consequently, it is hereby declared to be the public policy of this State that public entities shall only be liable for their negligence within the limitations of this act and in accordance with the fair and uniform principles established herein.  All of the provisions of this act should be construed with a view to carry out the above legislative declaration.  *Id.*  Consistent with this legislative mandate, the New Jersey Supreme Court has recognized and emphasized that the TCA should be interpreted broadly to limit public entity liability.  *Manna v. State*, 129 N.J. 341, 346 (1992).  The TCA supersedes all prior common law tort causes of action.  *Tower Marine, Inc. v. City of New Brunswick*, 175 N.J. Super. 526, 531 (Ch. Div. 1980).  The polestar of the TCA is that public immunity is the general rule and liability is the exception.  *Coyne v. N.J. Dep’t of Transp.*, 182 N.J. 481, 488 (2005).  The Legislature's overriding philosophy is that immunity for public entities is the general rule and liability is the exception.  See *Collins v. Union County Jail*, 150 N.J. 407, (1997).