ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] LEGAL ARGUMENT  I.  PLAINTIFF’S APPEAL MUST BE DISMISSED BECAUSE HE FAILED TO DEMONSTRATE THAT THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED HIS MOTION FOR RECONSIDERATION.  A.  The Trial Court’s Denial of Plaintiff’s Motion for Reconsideration Was Proper and Not an Abuse of Discretion.  The decision to deny a motion for reconsideration falls “within the sound discretion of the [trial court], to be exercised in the interest of justice. ”  *In re Belleville Educ. Ass’n*, 455 N.J. Super. 387, 405 (App. Div. 2018) (quoting *Cummings v. Bahr*, 295 N.J. Super. 374, 384 (App. Div. 1996)).  Reconsideration should be employed only “for those cases which fall into that narrow corridor in which either (1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence. ”  *Cummings*, 295 N.J. Super. at 384 (quoting *D’Atria v. D’Atria*, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).  “Reconsideration cannot be used to expand the record and reargue a motion.  Reconsideration is only to point out ‘the matters or controlling decisions which [a party] believes the court has overlooked or as to which it has erred. ’”  *Capital Fin. Co. of Del. Valley, Inc. v. Asterbadi*, 398 N.J. Super. 299, 310 (App. Div. 2008) (quoting R. 4:49-2).  The Appellate Division reviews a trial court’s decision to grant or deny a motion for reconsideration under the abuse of discretion standard.  See Cummings, 295 N.J. Super. at 389.  An abuse of discretion occurs “when a decision is ‘made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis. ’”  U.S. Bank Nat’l Ass’n v. Guillaume, 209 N.J. 449, 467-68, (2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).  Plaintiff’s motion for reconsideration did not fall within the narrow corridor identified in Cummings.  The trial court denied Plaintiff’s motion for reconsideration as both untimely, and because it lacked jurisdiction after the Complaint was removed to federal court.  As discussed below, Plaintiff has failed to demonstrate that the trial court abused its discretion in denying his motion for reconsideration seeking to reinstate a complaint that had been removed to federal court in 2010.
[brief] THE MOTION FOR A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED AS THE STATE PRESENTED INSUFFICIENT EVIDENCE TO CONVICT THE DEFENDANT OF FIRST-DEGREE ROBBERY OF EITHER OF THE TELLERS AND INSUFFICIENT EVIDENCE TO CONVICT HIM OF SECOND-DEGREE ROBBERY OF ONE TELLER.  (4T 96-21 to 97-13)  It is fundamental that in any criminal prosecution, the State must prove the defendant guilty of each and every element of an offense beyond a reasonable doubt.  In re Winship, 397 U.S. 358, 364 (1970); State v. Vick, 117 N.J. 288, 293 (1989).  Where the State fails to carry out its constitutionally mandated burden, a court must grant a motion for a judgment of acquittal.
[brief] For the foregoing reasons, the State urges this Court to affirm defendant’s sentence, but does not oppose an amendment to the judgment of conviction to correct the parole disqualifier on Count Five.  Respectfully submitted, [...]  ATTORNEY GENERAL OF NEW JERSEY  ATTORNEY FOR PLAINTIFF-RESPONDENT BY: /s/ [...]  [...] Deputy Attorney General [...]  [...]  ATTORNEY ID NO. 032101994  DEPUTY ATTORNEY GENERAL DIVISION OF CRIMINAL JUSTICE APPELLATE UNIT OF COUNSEL AND ON THE BRIEF DATED: December 11, 2023 February 27, 2024
[brief] $500,000 transferred from [...]’s [...] account November 5, 2013 to [...]n account #0319 belonging to the [...].  (36T 36:11-22).  -  This transaction was not recorded in the company’s QuickBooks until the following year, November 2014, pursuant to an entry of correction made in March 2021 – after the Complaint was filed in this lawsuit.  (Da6723; 21T 26:7 to 28:12; 23T 10:24 to 20:8).  - [...] testified – completely incredibly – that he took the $500,000 pursuant to an agreement with [...], but presented no documentary evidence of any agreement, and admitted that none exists.  (28T 74:15 to 76:14).  - [...] testified that he allowed [...] to take the same amount.  (28T 92:18 to 93:4).  However, [...] presented no documentary evidence of any such agreement.  When asked about this on cross examination, [...]’s accounting expert, [...], testified that his client had no good explanation for what happened.  (30T 54:15 to 55:2).  -  [...] took the money in 2013, when [...] was having cash flow problems, and was unable to pay either he or [...] their full salaries.  Meanwhile, unbeknownst to [...], [...] was taking the balance of his salary from a different entity, [...].  (28T 107:22 to 108:17).  **Misappropriation #2: [...] paid himself $629,217.85 from [...] customer, [...].
[brief] N.J.R.E. § 401 ..................................................................................................................  12  Plaintiffs [...], [...], [...], [...], [...], [...] (the “[...]”) submit this brief in response to the appeal filed by Non-Party [...] (“[...]”) of the Court’s March 7, 2024 Order (the “Order”).  PRELIMINARY STATEMENT  Daniel [...] (“[...]”) is a witness to (and potential participant in) an organized scheme to divert tens of millions of investor funds from the [...].  The scheme was led by two now-resigned Managers of the [...], [...] (“[...]”) and [...] (“[...]”), who diverted millions of dollars of investment monies to companies that they own or control, directly or indirectly, and have refused to turn over all information about the investment monies requested by the [...].  To cover up their tracks, [...], [...], and those persons associated with their new business, [...] (“[...]”), including [...], have virtually objected to every attempt to discover what they did with the investor monies funded by the [...].  The pattern consists of vague objections to the relevance of the discovery and character attacks on [...] (“[...]”), the remaining Manager of the [...].
[directive] [Wi/Yes]  [Non/No] a. ke nenpòt ki libète kondisyonèl pap swiv direktiv tout lòt libète kondisyonèl nòmal yo? that any future parole will not be guided by the normal parole guidelines? elijib [Wi/Yes] [Non/No] b. ke wap pou yo lage w lè Komisyon Libète Kondisyonèl Leta a fin resevwa yon rekomandasyon nan men komite revizyon klasifikasyon espesyal la, ki di ke w reyisi atenn yon nivo pwogrè ki satisfezan nan tretman pou delenkan seksyèl la epi ke yap lage w sou libète kondisyonèl amwens ke Komisyon Libète Kondisyonèl la ta detèmine daprè pwa prèv la oswa ke w pat kolabore nan reyabilitasyon ou an ta gen rezon pou prevwa ke wap vyole tout kondisyon libète kondisyonèl yo? eligible that you will be for release when the State Parole Board, after receiving a recommendation from a special classification review board, finds you have achieved a satisfactory level of progress in sex offender treatment and that you will then be released unless on parole the State Parole Board determines by a preponderance of the evidence or that you have failed to cooperate in your rehabilitation there is reasonable expectation that you will violate conditions of parole?
[brief] It is a crime of the fourth-degree for an attorney to “act[] as a debt adjuster without a license” regardless of whether or not such services are in connection with the attorney’s legal representation of a client.  See N.J.S.A. 2C:21-19(f).  The statute also allows the imposition of penalties to be imposed on those who violate its provisions, including fines of up to $5,000 and commencement of a summary action brought by the Commissioner.  In Persels & Assocs., LLC v. Banking Comm’r, 122 A.3d 592 (Conn. 2015), the Supreme Court of Connecticut held that a limited attorney exemption in a debt negotiation statute was unconstitutional because it impermissibly intruded on the Judiciary’s exclusive authority to regulate attorney conduct and licensure.
[brief] *N.Y. SMSA, Ltd. P'ship v. Bd. of Adjustment of Weehawken*, 370 N.J. Super. 319, 333 (App.  Div. 2004).  The Resolution rejects the expert testimony of [...] notwithstanding the fact that there was no opposing expert testimony.  The Board was free to reject the Dixon testimony but needed to rely on contrary expert testimony.  *Cell S. of N.J., Inc. v. Zoning Bd. of Adjustment of W. Windsor*, 172 N.J. 75, 87 (2002).  See also *15 High St. v. Borough of Helmetta Planning Bd.*, 2022 N.J. Super. Unpub. LEXIS 386, 2022 WL 710788.
[brief] Pa62  Certification of [...], Esq. in Support of Plaintiff’s Motion to Bar Defendant’s Expert Report ..........................................................  Pa66  Exhibit 1 – Appraisal Report by [...] for [...] dated December 15, 2022 ................................................................. Pa68 Exhibit 2 – Appraisal Report by [...] for [...] dated March 10, 2023 .................................................. Pa92 Exhibit 3 – [...] Report for [...] dated March 9, 2023 ......................................................................................... Pa124 Exhibit 4 – Transcript of Deposition Testimony of [...], MAI, CRE dated August 23, 2023 .............................................. Pa141 Vol. II Exhibit 5 - Transcript of Deposition Testimony of [...], PP dated August 22, 2023 .......................................................... Pa178 Exhibit 6 – unpublished opinion of City of Hoboken v. Savickas, Law Division, HUD-L-4528-04 (February 14, 2006) ......................... Pa197 Exhibit 7 – unpublished opinion of Jersey City Redevelopment Agency v. Kerrigan, Law Division, HUD-L-4528-04 (January 25, 2008) .......... Pa210 TABLE OF AUTHORITIES State Cases Borough of Saddle River v. 66 East Allendale, LLC, 216 N.J. 115 (2013) ................................................................. passim Bellardini v. Krikorian, 222 N.J. Super. 457 (App. Div. 1988) ......................
[brief] 466 N.J. Super. 126 (App. Div. 2021).  The Appellate Division concluded that “an AOM is not required when a plaintiff’s claim against a ‘licensed person’ is limited to vicarious liability for the alleged negligence of an employee who is not a ‘licensed person’ under the AOM statute. ”  Id. at 135-36.  The Supreme Court affirmed based on “the thoughtful and well-reasoned opinion of the Appellate Division.
[brief] [...] is also a Certified Municipal Engineer.  (Pa1914)  (T9:8-9_  [...] began his employment with [...] on January 1, 2006 (Pa1914)(T9:20-22)  Mr. [...] administered the project from a financial standpoint and was the direct contact with the [...].  (Pa1916)  (T15:24-25)  Mr. [...] would keep the [...] informed of issues that arose and advise of contractor concerns.  (Pa1917)  (T18:23-25)  The resident engineer ([...]) would advise him of any issues that arose.  (Pa1917)  (T19:12-13)  Mr. [...]’s point of contact with [...] was [...].  (Pa1917)(T21:1-2)  Mr. [...] would meet with [...] approximately once a month and have several phone calls each month.  (Pa1920)  (T32:17-20)  As noted by the Appellant, to establish vicarious liability, a plaintiff must demonstrate that: (1) that a master-servant relationship existed; and (2) that the tortious acts of the servants occurred within that employment.  (See Appellant’s Brief at pp. 42-43).  *Carter v. Reynolds*, 175 N.J. 402, 409 (2003).  [...], however, was NOT an employee of [...] and no master-server relationship existed.  The alleged acts of [...] were not within the scope of any employment with [...].  As such Appellants claim against [...] should be dismissed.
[brief] ”  OPRA does not “authorize a party to make a blanket request for every document” a public agency has on file.  Bent, 381 N.J. Super. at 37.  Neither does OPRA “authorize unbridled searches of an agency’s property. ”  Ibid.  The GRC acknowledged the invalidity of [...]’s requests when it held that the requests “are invalid on their face because they failed to meet the necessary criteria for a valid request for test [sic] messages.
[brief] Defendant executed a Family Part Case Information Statement (CIS) two months after a one-half interest in his father’s house was deeded to him and via a deed prepared by his matrimonial attorney, and omitted the interest in the house from the CIS.  1T204:7-23; see also Plaintiff’s Exhibit 14 (P-785).  This resulted in a bizarre exchange during Defendant’s January 5, 2023 deposition, at which time Defendant’s attorney raised the 5th Amendment on this issue.  2T12:2-14:21.  LEGAL ARGUMENT POINT I:
[brief] While municipal ordinances generally enjoy a presumption of validity, that presumption disappears when “an enactment directly impinges on a constitutionally protected right. ”  See Bell v. Stafford, 110 N.J. 384, 395-96 (1988) (“Courts are far more demanding of clarity, specificity and restrictiveness with respect to legislative enactments that have a demonstrable impact on fundamental rights. ”).  “Because the exercise of first amendment rights and freedom of speech are at stake, the municipality cannot seek refuge in a presumption of validity.  It clearly ha[s] the burden to present and confirm those compelling legitimate governmental interests and a reasonable factual basis for its regulatory scheme in order to validate its legislative action.  Its failure to do so is fatal. ”
[brief] Consequently, the crucible of the discovery process exposed the inner depravity of the same principal who would have this Court hold that his mere spoken word, without the barest shred of documentary corroboration can, through some mysterious occult alchemy, magically transform a case without any cognizable proof of damages into one where [...] can, *ex cathedra*, move his lips and compel [...] to sign a blank check with the arbitrary numbers that he has dictated, per a plenary Court Order.  Further evidence of the baselessness of [...]’s alleged damages emerged at the summary judgment motion hearing.  The issue arose as to whether [...] had subpoenaed the third party alleged to have provided the “replacement”  Schedule 40 pipe.  The answer was “no. ”  Strike three.  The Law Division thus reached the only decision that it could upon this record and summary judgment was duly entered on all counts of [...]’s Complaint.
[brief] The Synagogue next presented current Zoning Board Attorney [...].  He presented limited testimony authenticating the minutes and Resolution as to the 1972 School Variance/Site Plan Approval for its expansion, (Da901 to 904; Da923 to 999) and stated that a search of Board records located no records of any application or approval of the 1963 Synagogue (6T113-21 to 142-19).  [...] testified she was born in 1951 and grew up in the Synagogue/school neighborhood, going to school and passing the site regularly in the 1960's and attending the synagogue after it opened in December 1963.  She went to college at Douglass in about 1969, and during college regularly visited her home in Lakewood.  After college, she lived elsewhere but regularly visited her home.  She had no knowledge of the 1963 Agreement.  Her knowledge was limited to having observed - primarily in the late 1960's and early 1970's --- vehicles of Synagogue attendees parking in the School's Fifth Street Lot and Sixth Street Courtyard.  (7T6-3 to 53-1)
[brief] N.J.R.E. 703 establishes the foundation necessary for the admission of expert opinion testimony:  It mandates that expert opinion be grounded in "facts or data derived from (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts."  Polzo, supra, 196 N.J. at 583, 960 A.2d 375 (citation omitted).  [Townsend, 221 N.J. at 53 (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)).]  The assumption that plaintiffs’ allegation is true does not equate with fact established by evidence in the record.
[brief] ...........................................- 12 - Townsend v. Pierre, 221 N.J. 36 (2015).............................................................-  15 - Travelers Indem. Co. v. Dammann & Co., 592 F. Supp. 2d 752, 766-67 (D.N.J. 2008), aff’d, 594 F.3d 238 (3d Cir. 2010)  .........................................................-  33 - Tredo v. Ocwen Loan Servicing, 2014 U.S. Dist. LEXIS 145731, *15 (D.N.J. Oct. 10, 2014).........................................................................................- 21 - United States v. Brito, 979 F.3d 185, 189 (3d Cir. 2020).......................................-
[brief] The court also improperly denied consolidation of plaintiff’s two cases as the law supporting consolidation was in the plaintiff’s favor.  (Pa535; 1T42-6 to14).  Pursuant to our Courts “the entire controversy doctrine embodies the principle that the adjudication of a legal controversy should occur in one litigation in only one court.  Accordingly, all parties involved in a litigation should at the very least be present in that proceeding with all of their claims and defenses that are related to the underlying controversy. ”  Cogdell v Hospital Ctr., 116 NJ 7, 15 (1989); Rule 4:30A.
[brief] After Daubert, where an expert is offered to testify to “scientific knowledge” to “assist the trier of fact to understand or determine a fact in issue,” four non-exhaustive factors help guide the jury: (1) whether the scientific theory or technique can be, or has been, tested; (2) whether it “has been subjected to peer review and publication”; (3) “the known or potential rate of error” as well as the existence of standards governing the operation of the particular scientific technique; and (4) general acceptance in the relevant scientific community.  [State v. Olenowski, 253 N.J. 133, 147 (2023) (quoting Daubert, 509 U.S. at 593-94). ]  Even after Daubert, courts around the country continued to affirm the reliability of fingerprinting evidence.
[brief] There can be no doubt that the Order of January 25, 2022, and the Order June 30, 2022, contradict the clear case law precedent cited above.  [...] abused her discretion in finding bad faith under the facts of this case.  It is impossible to find that there was no rational argument, no support of credible evidence, and no reasonable person who could have expected Plaintiffs’ Amended Complaint to succeed, when Plaintiffs did precisely what [...] said Plaintiffs could do.
[brief] This personal-injury/wrongful death matter arises from the above-referenced motor-vehicle accident that occurred on July 20, 2022, on the Garden State Parkway in Galloway, New Jersey.  Da24-26.  On September 15, 2022, Plaintiffs filed suit against Defendants seeking compensatory and economic damages.  Da260-279.  At that time, both Plaintiffs were represented by the law firm of [...].  Ibid.  After [...] advised [...] that it could not ethically represent both Plaintiff, [...] (“Stahlberg”), and Plaintiff, [...], Executrix for the Estate of [...] (“the Estate”) due to the facts of this case, the [...] substituted into this case as counsel for the Estate on December 8, 2022.  On December 21, 2023, Stahlberg filed a motion seeking [...]’s disqualification pursuant to RPC 1.7.  Da4-5.  The Estate thereafter joined in that application.  The trial court heard oral argument on the application on February 16, 2024.  See 1T, passim.  At the conclusion of argument, the trial court granted the application, therein disqualifying [...] from its representation of [...] and [...] in this litigation.  1T38:24-39:1.  Within its oral opinion, the trial court found that a concurrent conflict of interest existed within [...]’s dual representation:  Here, representation of all these defendants would directly conflict with one another and already do conflict with each other.  In terms of the basic rudimentary concept of whether or not [...] did the cut through on his own accord or whether he was told by his employer.  Again, representation for [...], the driver, relies on the theory that he was told to make the illegal cut through and did not do so on his own.  Conversely, defendants [...] Asphalt and Walter [...] Transit rely on the notion that the supervisor explicitly instructed the drivers to refrain from the cut through.  Those theories are directly adverse to each other under the rule and a conflict has arisen.  [1T35:15 – 36:4.]  The trial court went on to hold that:  [T]here are more things that are indicating that there is a significant risk at the very least of there being a conflict.  Here, there is a significant risk that the representation of both [...] and the other defendants will be limited.  Not only do the defendants rely on different theories, but the ability for each party to settle without impacting the other is virtually impossible.  [1T36:10-20.]  In accordance with the oral opinion, the trial court issued an order disqualifying [...] on February 28, 2024.  Da1-2.
[brief] (28T 93-15 to 94-25)  [...] said defendant even told him that “it was murder. ”  (28T 95-23 to 24)  [...] also claimed to know about [...]’ prior friendship \(^{10}\)  In fact, [...] had seen defendant retrieve a photo of defendant with [...] from defendant’s “personal papers” to show [...] -- so [...] knew where those papers were stored.  (28T 85-15 to 87-21) with defendant, his history of stealing from the [...], his mental-health issues, and his later falling out with defendant.
[brief] See State v. Fowler, 239 N.J. 171, 187 (2019) (observing that purposeful murder conviction is “incompatible” with accidental killing); see also State v. Duncan, 796 N.E.2d 1006, 1010 (Ohio Ct. App. 2003) (“A person cannot be convicted of both murder and voluntary manslaughter for the same killing.
[brief] 19 Taylor v. Metzger, 152 N.J. 490 (1998) ...........................................  24, 25 United States v. National Treasury Employees Union, 513 U.S. 454 (1995) .............................................................................. 43, 44, 45 Woods-Pirozzi v. Nabisco Foods, 290 N.J. Super. 252 (App. Div. 1996) .............................................................
[brief] Mockler v. Russman, 102 N.J. Super. 582 (App. Div. 1968).....................8, 13, 26-33, 36-37, 39-40, 59  Polk v. Daconceicao, 268 N.J.Super. 568 (App. Div. 1993)....................44  Reichert v. Vegholm, 366 N.J. 209 (App. Div. 2004).............................46-47  Sherry v. Buonansonti, 287 N.J. Super. 518 (App. Div. 1996)……………46-47 State v. Jackmon, 305 N.J. Super. 274 (App. Div. 1997)…………………………..23 State v. Walker, 322 N.J. Super. 535 (App. Div. 1999)……………………………..23 State ex rel. Comm’r of Transp. v. Marlton Plaza Assocs., L.P., 426 N.J. Super. 337, 347 (App. Div. 2012)………………………………………..21 Universal Underwriters v. Heibel, 386 N.J. Super. 307 (App. Div. 2006)………………………………………..27, 33-34, 37 Appellate Division – Unpublished Calabree v. DiCristino, 2009 N.J. Super. Unpub. LEXIS 2548 (App. Div. Oct. 13, 2009)……27, 33, 37 Morgan v. Progressive Insurance Co., A-2964-15T2 (App. Div. Nov. 8, 2017)…………………………………………….48-50 Paramel v. Martinez, 2017 N.J. Super. Unpub. LEXIS 1701 (App. Div. July 11, 2017)……………27, 33, 37
[brief] . . .”  (3T44:18–21.)  In making that decision, the trial court stated that “[d]epending on the Appellate Division ruling, [the] entire controversy doctrine would apply” to [...]’s Complaint in the Second Action.  (3T44:4–5.)  “[T]he entire controversy doctrine is an equitable principle,” and thus “its applicability is left to judicial discretion based on the particular circumstances inherent in a given case.
[brief] The court further noted that if the carrier is successful in the NFADR process, “there is no ‘award. ’  Under such an interpretation, attorney's fees could not be granted against an injured party or insured. ”  Id. at 263.  Similarly, in the case of Allstate Ins. Co. v. Lopez, 311 N.J. Super. 660 (Law Div. 1998), the Court expressly found that the Fraud Act designates the proper venue for resolution of disputes under the act.