ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] As stated in the Ordinance, it was intended both: (1) to adopt comprehensive standards and regulations for the installation of new “small wireless facilities” (that is, lower range, micro-cell facilities that add capacity to existing macro-cell sites such as traditional cell towers, thereby allowing the transition to 5G technology); and (2) to better manage access to and use of the Town’s rights-of-way by traditional utility companies.  DA at 35a.  Simply put another way, the goal of the Ordinance is to provide standards and regulations for how the Town manages the use of its public rights-of-way by utility companies and telecommunications providers, using the same standards adopted elsewhere.  As to existing poles, the Ordinance further specifically does not subject such poles to any new requirements when they are being replaced.  It states:  The requirements of this section shall not apply in any circumstance in which a utility service provider that already has, as of the date of the adoption of this Ordinance, an existing utility pole, provided that the pole replacing the existing utility pole is identical, substantially identical, or smaller than the pole being replaced as to its height and diameter, and the material of the replacement pole is identical or substantially identical to the material of the existing pole.  DA at 46a.  As to new poles, the Ordinance merely prevents [...] from placing them unilaterally, without any review by the Town, which it is entitled to do both under existing state law, infra, as well as under the 1892 Agreement.  Id. 3.  [...]’s Proposed Projects
[brief] *Hamlett*, 449 N.J. Super. at 169 (quoting *State v. Keyes*, 184 N.J. 541, 554 (2005)).  “Doubt as to the validity of the warrant should ordinarily be resolved by sustaining the search. ”  Ibid. (quoting Keyes, 184 N.J at 554).  i.  The search of defendant’s vehicle in [...] did not violate the scope of the warrant. \(^5\)
[brief] As an initial matter, the State argues, incorrectly, that the trial court’s sentence is owed deference, and must be affirmed absent a finding that the court abused its discretion.  (Sb21)  Our Supreme Court has made clear, however, that “the deferential standard of review applies only if the trial judge follows the Code and the basic precepts that channel sentencing discretion[.]”  \textit{State v. Case}, 220 N.J. 49, 65 (2014).  The “deferential standard will not apply” for certain errors, \textit{ibid.}, such as the failure to base a sentence upon “findings of fact that are --- \(^1\) “Db” = defendant’s appellant brief “Da” = defendant’s appellant appendix “Sb” = State’s respondent brief “Pa” = State’s appendix “Pca” = State’s confidential appendix grounded in competent, reasonably credible evidence” or failure to “apply correct legal principles in exercising its discretion[.]”
[brief] Rather, the appropriate focus is on the degree of injury and impairment….  If the loss of bodily function is permanent and substantial, as in this case, a plaintiff’s eligibility to recover pain and suffering damages will not be defeated merely because she can perform some routine functions almost as well as she could prior to her injury.  176 N.J. at 333-334.  (Emphasis added.)  In addition, the Court stated that “neither an absence of pain nor a plaintiff’s ability to resume some of his or her normal activities is dispositive of whether he or she is entitled to pain and suffering damages under the TCA. ”  Id. at 332 (citing Kahrar, supra, 171 N.J. at 15-16).  In Kahrar, plaintiff severely injured her left shoulder when she tripped and fell.
[brief] Even without the ongoing storm language, the general duty set forth in 5.20B(2)(b) still applies and the court should have charged that component.  Moreover, the Plaintiff’s suggestion that 5.20B(2)(b) does not apply to instances when the fall occurred after the snow event, or after the snow has ended, is also wrong.  Again, the plain language of the charge explicitly contemplates snow removal within a reasonable time after notice thereof, along with a scenario where the defendant has made efforts to remediate the snow/ice and there is a question as to the adequacy of these efforts.  This model charge provides a framework for examining whether a commercial defendant has a duty to remove snow and ice from its walkways regardless of when plaintiff fell.
[brief] ’”  McGovern v. Rutgers, 211 N.J. 94, 99 (2012).  Here, the Legislature knew that it was going to consider S. 49 and A. 6260 because they were both introduced on January 6, 2022.  (Pa226-267).  The fact that the Legislature failed to include them on the publicly available calendar demonstrates that the Legislature violated the Open Public Meetings Act.  (Pa112-29.)  Moreover, the Legislature further violated N.J.S.A. 52:11-78.
[brief] There have been some recent decisions by the Appellate Division that supports the Petitioner’s position in this case.  In Petit-Clair v. Board of Trustees, Public Employee Retirement System, [...], Publication Number 2020WL4280273 (Pa119), the Appellate Division once again endorsed the “IRS 20 Factor Test” in determining whether an individual is an employee or an independent contractor for pension purposes.  The Appellate Division noted, “The factors should be applied in a fact-sensitive manner, inasmuch as the degree of importance of each factor varies depending on the occupation and the factual context in which the services are performed. ”  Id., at 3.  In a case very similar to the matter at bar, the Office of Administrative Law found that a municipal prosecutor was an employee under Chapter 92b.
[brief] The essence of the motion judge’s rulings concerning defendant [...] who re-sold the rights already sold to plaintiffs, and the [...] who claim to have “bought” plaintiffs’ rights from Fiberville, is the mistaken assumption that, contrary to market principles, the solar-energy development rights could not exist separate and apart from the “solar panels” to be planted on a specific parcel of land.  Stated differently, the motion judge was of the view that, because Fiberville owned the land which had been leased to plaintiffs, once the lease was claimed to have been “terminated” by plaintiffs’ alleged breach of non-payment, all of the rights that had been sold in perpetuity to plaintiffs had, automatically, forfeited by plaintiffs.
[brief] See N.J.S.A. 2A:162-17b(2)(k).  Citizens of the State of New Jersey rely upon iPhone geolocation data every day when they navigate traffic using the Waze app and check up on their children using find my iPhone.  Law enforcement utilizes GPS-based apps, such as Snapchat’s SnapMap, to quickly and successfully locate missing youth and at risk-adults.  The State did not ask [...] to extrapolate or interpret the data he derived from the electronic examination he conducted using Cellebrite technology and he was subjected to cross-examination about the limitations of his testimony.
[brief] ’”  Martindale v. Sandvik, Inc., 173 N.J. 76, 83-84 (2002) (quoting Gilmer v. Interstate Johnson Lane Corp., 500 U.S. 20, 24 (1991)).  The FAA broadly defines a contract as evidencing a transaction involving commerce.  9 U.S.C.A. § 2.  Section 9 provides, in pertinent part, that “a written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. ”  9 U.S.C.A. § 2 (emphasis added).  Section 13 of the SPA, which Plaintiffs-Respondents, [...], and [...] expressly agreed to, provides that the contract is “governed by the provisions of the (FAA), 9 U.S.C. §§1, et seq. and shall survive settlement. ”  Even if the SPA was not expressly governed by this clear language establishing the FAA authority, the SPA undisputedly “evidenc[es] a transaction involving commerce.
[brief] "For the most part, the unconscionability [involves] two factors: (1) unfairness in the formation of the contract, [procedural unconscionability] and (2) excessively disproportionate terms[, substantive unconscionability]."  Sitogum Holdings, Inc. v. Ropes, 352 N.J. Super. 555, 564 (Ch.Div.2002); see Muhammad, supra, 189 N.J. at 15 (discussing Sitogum and employing the terms "procedural" and "substantive" unconscionability).  "Because adhesion contracts invariably evidence some characteristics of procedural unconscionability, . . . a careful fact-sensitive examination into substantive unconscionability" is generally required.  *Muhammad*, supra, 189 N.J. at 16.  While substantive unconscionability is the focus, "overwhelming procedural unconscionability" is considered and the relevant facts are "included and weighed in the overall analysis for unconscionability."  *Id.* at 16 n.3; see *Delta Funding Corp. v. Harris*, 189 N.J. 28, 39-40 (2006).  Thus, "[w]hen making the determination that a contract of adhesion is unconscionable and unenforceable, we consider, using a sliding scale analysis, the way in which the contract was formed and, further, whether enforcement of the contract implicates matters of public interest."
[brief] “Having said that, the big problem for the plaintiff is, he has no idea how much of the $250,000 was due from 2010 and the year of 2011 before the six-year Stature would have run, up until to December of 2017.  He had zero idea how much to a portion amongst the various years.  So therefore, those portions that would have been barred, even if the defendant was equitably estopped as of December 2017, for 2010, 2011 would have been pure guess work by a jury. ”  See T2 at 15:10-19.  II.
[brief] (14T:73-4 to 8).  Yet, the Court used that disability against him to enhance aggravating factors and improperly apply the Miller factors.  Due to his disability, it would’ve been difficult if not impossible for [...] to give a speech before a Courtroom full of people at his sentencing.  With respect to rehabilitation, while the Court acknowledged that [...] has mental health issues and autism, the Court simplified it and simply stated “autism doesn’t make you murder. ” (17T:179-23).  Furthermore, while recognizing that [...] has autism, the Court then said that [...] can’t be rehabilitated because he did not say sorry during his sentencing.  (17T:181-20 to 23).  Both experts testified that [...] Kologi had difficulty with social interaction.  (14T:73-20 to 23).  [...] testified that [...] had difficulty showing emotions dating back to when he was a child.  (10T:93-22 to 94-2).  Thus, to expect [...] Kologi who is autistic to give a speech in front of a courtroom full of people at his sentencing was not reality.
[brief] At the heart of this appeal is [...]’s claim that its SFRA Adequacy Budget has been seriously underfunded, a condition attributable to deficiencies in the formula’s operation over an extended timeframe.  The proper evaluation of this claim demands a detailed evidentiary record of the asserted deficits in SFRA’s operation and the State’s response – or failure to respond – to those problems, including, *inter alia*, the SFRA’s Adequacy Budget calculations and funding shortfalls; the structural formula components causing or contributing to those shortfalls; and the impact of reduced levels of SFRA funding on teachers, support staff and other resources essential to remedy the T&E violation in [...].
[brief] (Da556-558)  On April 30, 2020, six days after [...] denied the motion to consolidate, Plaintiffs filed an Amended Complaint in the present action to add counts against, inter alia, the [...]. \(^2\) (Pa68-141)  In this Amended Complaint, the counts alleged against the [...] include the following:  - Thirteenth Count: Fraudulent Concealment \(^2\)  Plaintiffs also filed suit against [...], Esquire, [...], Esquire and [...], who were the counsel of record in the 2015 action for [...]; [...]; [...]; and [...].  (Pa68-141).  • Fourteenth Count: Conspiracy to Commit Fraudulent Concealment • Fifteenth Count: Aiding and Abetting Fraudulent Concealment • Sixteenth and Seventeenth Counts: Legal Malpractice • Eighteenth and Nineteenth Counts: Negligent Supervision/Respondeat Superior (Id.)  Thus, by filing the present action, Plaintiffs improperly sought a re-litigation of the 2015 action based on the same allegedly “newly discovered evidence” that [...] is the sole owner of [...], which they sought to assert in the 2015 action.
[directive] 2.8  Pursuit Vehicles.  A Primary Unit is the police vehicle that initiates a pursuit or any unit that assumes control of the pursuit as the lead vehicle (the first police vehicle immediately behind the fleeing suspect).  A Secondary Unit is any police vehicle which becomes involved as a backup to the primary unit and follows the primary unit at a safe distance.  2.9  Roadblock.  A restriction or obstruction used or intended for the purpose of preventing free passage of motor vehicles on a roadway in order to effectuate the apprehension of a violator.
[brief] The PCR court proceeded that trial counsel “explicitly reminded the jury about the two witnesses who contradicted each other” (Da 114); that defendant “fails to show that the outcome of the trial would have been different had a defense expert presented in this regard” (Da 115); and “[e]ven if an expert had been called, the jury still heard the testimony of [...] and [...] who identified defendant as the person who attacked [...] with the tire iron. ” (Da 115).  The PCR court’s rationale was egregiously flawed.  Contrary to the PCR court’s mischaracterization that [...]’s and [...]’s testimony contradicted one another, their bottom line, as cited herein, was consistent - that fingerprint testing contaminated DNA analyses.  Consequently, expert testimony, such as that of [...], would have exposed an irretrievable vacuum in the State’s case regarding the wielder of the tire iron and clearly transcended the dubious credibility of Eric [...] and Jovani [...].  It is essential - and particularly in this matter’s context - that a defendant must be provided with a “‘meaningful opportunity to present a complete defense.
[brief] In Abbott XX, the Supreme Court made clear that its review of the SFRA was limited to determining whether the new formula would ensure “a constitutional level of funding” as applied to students in Abbott districts.  Abbott XIX, 196 N.J. at 551.  The Court emphasized that its jurisdiction was circumscribed by the Abbott litigation and did not extend to evaluating the formula’s constitutionality statewide.  Id.  The Court also made clear that the purpose of its review was to determine whether to grant the specific relief sought by the State, namely, to replace the Court’s prior orders for parity and supplemental funding with the SFRA’s funding formula to remedy the violation of T&E in Abbott districts in future years.
[brief] Per the contract documents, [...] had no contractual obligations to ensure safety.  Per the construction manual (which is incorporated into the Turnpike Contract) (Pa2231-2232)(T47:23-T48:4):  “Job safety is the sole responsibility of the contractor.  The engineers should remind the contractor whenever it appears that safety has been overlooked, however, it is not intended to shift that responsibility to the engineer at any time. ”  (Pa2607)  Here, Plaintiff claims that [...] is an unlicensed professional who was not performing professional engineering work, breached a duty.  Assuming [...] was not performing engineering services, and not acting in furtherance of the licensed professionals’ obligations, [...] would be like any other contractor on the construction site with no specific duty to the Appellant.  D.
[brief] The Board has acknowledged that the third-party vendor was not contacted to mail the postcards until more than 30 days after the enactment of the Ricci Act.  The third-party vendor could not mail the notice within 30 days of the enactment of the Ricci Act.  Because this notice was not sent in accordance with the requirements specified in the Ricci Act, the Board should have granted [...]’s request to register outside the timeframe specified in the Act.
[brief] Here, the Appellate Division already denied the Defendant’s request for relief pursuant to R. 4:50-1(f) as follows:  [W]e conclude the court here did not exceed its discretion in refusing to vacate the judgment based on Rule 4:50-1(f).  Contrary to defendant’s arguments, he did not demonstrate an ability to ‘reverse the merits of the default judgment’ or that he had the ability to satisfy the tax sale certificate.  We reiterate defendant never filed a certification detailing the alleged ‘severe hardship’ he experienced the past five years, and he provided no proof to substantiate his claim.  Moreover, defendant did not certify as to why he waited eighteen months to move for relief and failed to provide competent proof he had the funds necessary to redeem the certificate.  [...] at 12-13.  The Court further held, “Defendant’s arguments supporting his claim for relief under Rule 4:50-1(f) are devoid of any showing ‘a grave injustice would occur’ if relief from the final judgment is not granted. ”  [...] at 13.  Likewise, in addressing the Defendant’s request for equitable relief at the oral argument on Defendant’s post-appellate motion for reconsideration, the trial court remarked the following:  On top of these are the statements, which I haven’t been able to process, is that you believe your client is losing equity.  There is nothing here to support that statement, other than surmised or bold face allegations with no supporting documentation.  And two, that he has the money.  And three, that the final judgment that was entered four years ago that was affirmed, this court has the authority to vacate.  12T-9-17.  In light of the foregoing, and for the reasons enumerated in the well-reasoned opinions in the [...] decision and by the trial court, the order denying Defendant’s second motion for reconsideration should be affirmed.
[brief] The trial court found his testimony to be credible.  (1T70-1 to 7).  The court first found that [...] lawfully ordered defendant out of the vehicle.  (1T80-8 to 15).  The court credited [...]’s testimony that his role in the Community Impact Division was to respond to information received by Narcotics detectives.  “They’re the ones in the trenches, so to speak[,]” the court found.  (1T71-19 to 25).  “They’re the ones on the front lines who have to respond to the information they’re receiving. ”  (1T71-25 to 72-2).  Yet, at the time of his testimony, the court credited [...]’s testimony regarding the CI’s past reliability since he is now privileged with such information.  (1T72-11 to 20).  As such, the court found it proper for [...] to rely on the CI tip, given the CI’s history of reliability and the tip’s corroborated detail, including a description of the vehicle and license plates that matched the CI’s information, the location of the vehicle, and a male inside wearing a fanny pack.  (1T72-21 to 73-2, 73-14 to 24, 79-22 to 80-5).  In addition, the court found it “reasonable and logical” that the CI tip was relayed to [...] shortly after it was received by [...], since to sit on such information without action would be contrary to the stated purpose and mission of these units working together.
[brief] [State v. Galloway, 133 N.J. 631, 654 (1993). ]  A court may also consider defendant’s prior interactions with the criminal justice system.  State v. Hreha, 217 N.J. 363, 383 (2014).  Because “[t]here is a natural reluctance on the part of a suspect to admit to the commission of a crime and furnish details[,] . . . [e]fforts by an interrogating officer to dissipate this reluctance and persuade the person to talk are proper as long as the will of the suspect is not overborne.
[brief] Plaintiff alleges that April 26, 2019, while Plaintiff was shopping at [...] in Hackensack, New Jersey, she was hit with a U-boat cart operated by [...].  (Pa231-239)  Plaintiff alleges under the doctrine of respondeat superior, [...] is responsible for Hernandez’s act.  However, as will be set forth below, the undisputed facts establish that Hernandez was unequivocally not an employee, but rather an independent contractor for [...].  Since 2018, [...] pays Hernandez One Hundred Fifty Dollars ($150.00) for each shopping trip shop he makes for [...].  (Pa00067, Pa00069).  At the end of the year, [...] provides Hernandez with an IRS 1099 tax form.  (Ra00006)  Hernandez testified that he is not solely reliant on his income from [...] as a means of employment.  (Pa00082)  In 2019, at the time of accident, Hernandez retained [...] cards for [...] as well as other businesses.  (Pa00082, Pa00084)  Hernandez also shopped at [...] on behalf of various entities, both commercial and individuals, and testified that he could shop for multiple entities in one trip.  (Pa00082, Pa00083, Pa00086)  To utilize Hernandez’s services, [...] provides Hernandez with a list of products via text message, Whats App, or a phone call for “essentials” like “rice, seasonings, beans, oil, butter. ”  (Pa00065, Pa00078, Pa00088)  [...] does not provide Hernandez with instructions on how to conduct his shopping assignments at [...].  (Pa00070, Pa00076, Pa00086)  There is no dispute that Hernandez shops for [...] only on Mondays and Thursdays.  (Pa00074-00075).  [...] manager [...] testified that he does not know the schedule that Hernandez keeps when shopping for other entities at [...].  (Pa00070)  According to the [...] Accident Witness Statement, on the day of the subject incident, Friday, April 26, 2019, Plaintiff [...] shopped in the meat department of [...], at which time Hernandez was pushing the cart at the time of the injury.  (Pa00153-154, Pa00156, Pa00157).  According to the Accident Form, Hernandez showed the [...] employee a card allegedly provided to him by [...].  (Pa00158-159).  Hernandez testified that he does not know what entity he was shopping for on the day of the incident, April 26, 2019.  (Pa00083, Pa00084, Pa00086).  Hernandez also always supplies [...] with a receipt for purchases he made on the restaurant’s behalf.  (Pa00075)  [...] manager Santos testified that [...] has no credit card records or [...] receipts to establish Hernandez shopped on its behalf on April 26, 2019.  (Pa00075)  Bank statements were also provided in discovery that showed no purchases were made on [...]’s debit card on the day of the subject incident.  Hernandez further testified that even if he used the [...] Restaurant card to gain entrance at [...], it did “not necessarily” mean that he purchased those items for [...].  (Pa00083)
[brief] ” (1T30:5-11).  Appellant argued that the afore-mentioned had not been argued in Respondent’s moving papers.  (1T30:20-25).  As a result of Appellant’s objection, the Court afforded Appellants and Respondents the opportunity to serve supplemental briefs addressing those specific issues.  (1T45:21 to 1T46:16-18).  Respondents’ brief was filed on August 29, 2024.  In their supplemental Brief, Respondents cited O Builders, supra and informed the Court that they were submitting a supplemental Certification signed by [...] which they asked that the Court review in-camera.  (297a-301a).  O Builders permits the submission of a Certification for in-camera review.  Id. at 129.  The Certification which is the subject of this Appeal has been submitted for in-camera review by the Appellate Court.