ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Indeed, the folly of [...]’s argument reveals itself if more than one unit was tenant-protected and not sold upon the conversion.  Suppose, for example, 6 of 11 units ended up being tenant-protected and not sold.  Does that mean that [...]’s return is limited to only the 5 units that were sold, despite that the Property has 11 units?  [...]’s investment in the entire 11-unit Property does not vanish simply because the Property was converted into a condominium property, with certain units being sold.  \(^3\)  The Property purchased in 1993 was an apartment building.  That investment pre-dated (by several years) the conversion of the Property to a condominium property in 2003.  [...]’s focus regarding the purchase price of his Unit at the time of conversion (and the value of his Unit relative to the other units) is improper.  All 11 units of the Property purchased by [...] were apartments, not condominium units, at the time of purchase.  That [...] made a return on 10 units is a non sequitur.  It does not negate that it is also entitled to a “fair return” on the unsold Unit.  [...] is hardly seeking to “get out of the deal early so it can escape the regulations to which it agreed. ” (Db26).  Pursuant to the Ordinance, [...] merely seeks to obtain a “fair return” relating to its ownership of the Unit—rather than continue to subsidize it and suffer mounting losses.  In short, [...] cannot claim a protected tenancy for his Unit while also asserting that the Unit is excepted from a rent increase for a “fair return” simply due to the prior sale of other units in 2003.  [...] cannot selectively cherry-pick.  If he invokes protection under rent control laws, his Unit is not immune from a rent increase under those same laws.  The proverb “you can’t have your cake and eat it too” resonates here.
[brief] (25T48-14 To 49-9)  On June 21, 2023, after denying [...]’s motion to compel and sua sponte vacating existing discovery orders, the judge declared they would proceed to the PCR petition merits.  New PCR counsel, who had taken over when the original PCR attorney became ill, was surprised by this announcement and requested an adjournment.  She told [...] she still had investigations ongoing and was not prepared to argue the merits of the PCR petition, as her understanding was the hearing that day was to address open PCR discovery issues.  Clearly frustrated, the judge said she would give her only a week.  (24T:24-10 to 27-20)  Counsel explained she was “in the middle of pursuing an investigation,” and would not be able to provide a complete submission of all the issues and support she planned to present within a week’s time.  (24T:27-12 to 28-14)  The judge refused to budge, telling her it would need to be done in time.  (24T:28-15 to 18)  As she had advised the court, counsel was not able to complete her submissions.  She filed an adjournment request on June 27, 2023, explaining: she was in midst of investigating the case, inherited from prior counsel; the records were voluminous, including electronic materials requiring outside technical assistance and programs to operate; and she had been diligently preparing several motions on “threshold issues that should be determined prior to the argument on the PCR, which is still subject to investigation, and which must be raised as part of my ethical obligations to my client.
[directive] In some jurisdictions, law enforcement agencies may be subject to the oversight of a civilian review board authorized to accept complaints directly from members of the public.  If a civilian review board refers a complaint to a law enforcement agency, then those complaints should be forwarded to internal affairs for immediate investigation.  5.1.10  If a person comes to a particular law enforcement agency to make a complaint about a member of another law enforcement agency, he or she should be referred to that agency.  The complainant should also be advised that if they have fear or concerns about making the complaint directly to the agency, they may instead file a complaint with the County Prosecutor or the Attorney General’s Office.
[brief] Filed 11/09/18 ........................................................................  Da26  Exhibit A (legal description) ..............................................  Da11  Exhibit B (map) ..................................................................  Da13  Exhibit C (unreported opinion of [...] v. [...], etc. App. Div. decided 08/20/18  Docket Nos. [...]; [...])  Not provided.  [...]’s Letter Withdrawing  Defendant’s Opposition to Order for Judgment and Appointing Commissioners  Filed 11/13/18 ........................................................................  Da28  Order for Judgment and Appointing Commissioners  Filed 11/21/18 ........................................................................  Da29  Report of Commissioners Filed 06/21/19 ................................  Da31  Defendant [...]’ Notice of Appeal From Award of Commissioners and Jury Demand Filed 06/26/19 ..................
[brief] On October 13, 2021, a Union County Grand Jury returned [...] charging defendant-appellant [...] and codefendants [...], [...], and [...] with second-degree unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5(b)(1) (count one), and fourth-degree possession of a large capacity ammunition magazine, in violation of N.J.S.A. 2C:39-3(j) (count two).  (Da1 to 2).  Defendant also was charged in a disorderly persons complaint for possession of a controlled dangerous substance, less than fifty grams of marijuana, in violation of N.J.S.A. 2C:35-10(a)(4).  (Da3)  On February 28, 2022, co-defendant [...] filed a Motion to Suppress evidence seized by police following a warrantless search of [...]’s vehicle.  (Da11).  On March 5, 2022, defendant joined the motion.  (Da15)  On July 12, 2022, the Honorable [...], J.S.C. held an --- 1 Da refers to defendant’s confidential appendix.  1T refers to the motion to suppress hearing dated July 12, 2022.  2T refers to the motion to compel buccal swab hearing dated July 6, 2023.  3T refers to the plea hearing dated December 11, 2023.  4T refers to the sentence hearing dated April 12, 2024.  2  The co-defendants are referred to by their initials because it appears their charges were dismissed and records related to the incident expunged.  See R. 2:6-1(a)(3); R. 1:38-3(c)(7).  evidentiary hearing.  (1T).  On August 23, 2022, the court issued a written opinion and order denying defendants’ Motion to Suppress.  (Da13; Da14 to 40).  On January 13, 2023, the State filed a Motion to Compel buccal swabs from defendants.  (Da41 to 58).  On July 6, 2023, the court heard oral argument and then granted the State’s motion.  (2T; Da59 to 68).  On December 11, 2023, defendant pleaded guilty to second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1) (count one).  (3T; Da6 to 12).  On April 12, 2024, defendant was sentenced pursuant to the plea agreement to a term of five years imprisonment with forty-two months of parole ineligibility.  (4T; Da3 to 5).  Count two of the indictment and the disorderly persons complaint were dismissed pursuant to the plea agreement.  (Da3 to 5; Da9).  On May 16, 2024, defendant filed a Notice of Appeal on May 16, 2024.  (Da69 to 73).  This appeal follows.  COUNTER-STATEMENT OF FACTS
[brief] He was Crew Supervisor, but he was on childcare leave during reactionary mode.  He testified he never called [...] (T. P. 124, L1-15).  [...] testified for [...].  She stated she did not know of any instance where [...] was called and asked to come in to work under Reactionary Mode (T. P. 73, L4-8).  [...] testified for the [...].  He was assistant crew foreman (T. P. 80, L10-18).  During Reactionary Mode one of his jobs was to call the guys three times a day to make sure they were home and if there was an emergency, to have the workers respond (T. P. 80, L16 to P. 81, L3).  [...] testified he only called [...] once (T. P. 101, L22 to P. 102, L5).  [...] testified for [...].
[brief] [...] complained about [...] on February 10, 2015, shortly after his Rutgers remarks.  (Pa333).  The DEP’s EEO office conducted an investigation.  (Pa857-867).  Plaintiff suggests that the fact that the EEO investigation did not substantiate his complaint against [...] means that it was “flawed and partial. ”  (Pb9).  In support, he cites excerpts of statements of male employees who noticed women getting promotional opportunities, and [...] being described as “aggressive,” and “intimidating. ”  (Pb10).  [...] criticizes the investigation for not containing a statement of [...].  (Pb11).  Notably, plaintiff has submitted no sworn statement, or statement of any type, from Zalaskus regarding his allegation about the “too old” comment.  Plaintiff’s claims against the State and the DEP fail for two reasons.
[directive] 2  See, Attorney General Law Enforcement Directive 2018-5, Implementing Procedures and Protocols for Sexual Assault Response and Referrals.  3  SART provides a coordinated response to victims of sexual assault.  The SART is comprised of a law enforcement officer; a Confidential Sexual Violence Advocate (“CSVA”); and an FNE.  2 | P a g e presents at a healthcare facility, a sexual violence service organization, or a law enforcement agency, the victim shall be personally informed about the availability of the specialized services of the SART by either a SART member or a representative of the healthcare facility, sexual violence service organization, or law enforcement agency.  A SART activation occurs when the victim chooses to engage with one, two, or all three members of the SART.  The requested on-call SART member(s) will be activated according to county protocol, and shall respond within one hour or less.  The first responding SART member shall ensure that the coordinated response of a SART activation is properly explained to the victim.  Pursuant to the Standards, each County Prosecutor’s Office is required to have at least one assistant prosecutor with specialized training in investigating and prosecuting sexual assault cases.  In addition, the County Prosecutor’s Office is required to establish procedures to maintain custody of any forensic evidence collected during a medical forensic exam conducted within the county.  If the victim is undecided about reporting an incident to law enforcement at the time of the forensic medical exam, the County Prosecutor’s Office must establish a procedure for all forensic evidence to be secured for at least five years from the examination date (known as a “Hold Kit”).  Where the victim is a minor, evidence must be secured for at least five years after the victim reaches the age of 18.
[directive] [...] I, January 2017, 1, on effect take that Constitution Jersey laws the of authority under the operating agencies prosecuting and enforcement all law DIRECT procedures, policies, following with the comply and implement to Jersey New of State of the practices. and standards, AUTOMATED THE INITIATE REQUIRED TO FINGERPRINTING SCAN LIVE  2.  PROCESS  RISK-ASSESSMENT PRETRIAL Status.  Scan Live Up-to-Date on Report
[directive] The Property Description Report (Short or Long Form) shall be submitted following the recovery or loss of any property.  When a Property Description Report is submitted in conjunction with an Investigation Report, the INCIDENT NO. and the DEPT.  CASE NO. must coincide with the corresponding blocks on the Investigation Report.  6.1.3  The officer will use a Property Description Report (Short Form) and as many Property Description Reports (Long Form) as necessary to completely record the listed information for each item of property and each transfer of custody.  6.2
[brief] Also like [...], [...] never received the notice.  The Board did not fulfill its obligation to notify the members of the [...] of this legislation “within 30 days” of July 8, 2019, including the requirement that they had to register their presence at the World Trade Center within 2 years of the law’s enactment, as was required by law.  The determination of the [...] acknowledges that it did not comply with the requirement to provide notice to all members and retirants enrolled in the [...] within 30 days of the Ricci Act’s enactment.
[brief] \textsuperscript{149}  Prosecution of this litigation as a class action is the superior method of proceeding with this case as the claims of each individual claimant would be small and it is doubtful any claimant would undergo the time and expense of a lawsuit to enforce his or her rights for such small sum(s) because litigation costs would exceed the benefit of the recovery - exactly the sort of claim class actions are designed to address. \textsuperscript{150}  Public policy also favors a class, as a great deal more judicial resources would be expended in managing and trying thousands of Small Claims or Special Civil Part cases.  To require hundreds or thousands of identical individuals, repetitive cases to be filed to address the claims in this – all with the attendant possibility of inconsistent adjudications – verges on the absurd. \textsuperscript{151}  The class action device is designed for this very situation where an individual seeks to vindicate “the rights of groups of people who individually would be without effective strength to bring their opponents into court at all.
[brief] State v. Walker, 385 N.J. Super. 388, 410 (App. Div. 2006).  Although this Court may consider allegations of errors or omissions not brought to the trial court’s attention if they meet the plain error standard under Rule 2:10-2, that standard requires first that the defendant identify an error that has a clear capacity to produce an unjust result.  State v. Macon, 57 N.J. 325, 337-39 (1971).  Instead, this Court generally declines to consider issues which were not properly presented at trial.  *Nieder v. Royal Indem. Ins. Co.*, 62 N.J. 229, 234 (1973).
[brief] On September 19, 2016, NJSP Lieutenant [...], defendant’s supervisor, was notified defendant was to be suspended that day.  After Ross collected defendant’s firearm, Ross, Captain [...], and defendant drove in one car to the OPS office.  (11T159-5 to 160-15).  There, defendant met an attorney provided by his union, [...] (11T152-13 to 16; Pa20-21).  NJSP Lieutenant --- 7 S-17 differed from S-12 only in that the former included a single additional line of text, which stated that defendant took “full responsibility for failing to safeguard” his ID.  (Compare Pa18 with Pa19).  The difference was noted during trial, but never explained.
[brief] Defendants’ entire case was premised upon the notion that it acted in a reasonable period of time in removing the snow at [...] given the huge amount of snow, order in which snow removal was supposed to be completed, and given the fact that snow removal was still actively occurring on site.  Certainly, telling the jury explicitly that it could consider what was a reasonable amount of time to clear the snow and ice is a far more nuanced analysis based on the totality of circumstances rather than simply advising that defendants owed a duty to make the premises reasonably safe for invitees such as plaintiff.  This erroneous charge alone is sufficient to warrant reversal, but its capacity to mislead the jury by having the jury apply the wrong standard also rendered the trial unfair to defendants.
[brief] THE COURT BELOW ERRED IN RULING THAT DEFENDANTS HAD A CONFLICT OF INTEREST BECAUSE IT LACKED SUBJECT MATTER JURISDICTION.  (Da1 – Da4)  The trial court did not have subject matter jurisdiction to consider Plaintiffs’ complaint.  It has been, “[w]ell established that a court cannot hear a case as to which it lacks subject matter jurisdiction even though all parties thereto desire an adjudication on the merits. ”  Peper v. Princeton Univ. Bd. of Trs., 77 N.J. 55, 65-66 (1978).  Murray v. Comcast Corp., 457 N.J. Super. 464, 470 (Super. Ct. App. Div. 2019).  Jurisdiction over subject matter is the power to hear and determine cases of the general class to which the proceeding in question belongs.  Petersen v. Falzarano, 6 N.J. 447, 454 (1951).  Our Supreme Court defined jurisdiction as: the right to adjudicate concerning the subject matter in the given case.  To constitute this there are three essentials: (1) the court must have cognizance of the class of cases to which the one to be adjudicated belongs; (2) the proper parties must be present, and (3) the point to be decided must be, in substance and effect, within the issue.  [Petersen v. Falzarano, 6 N.J. 447, 453 (1951)]  Subject matter jurisdiction refers to the power of a court to hear and determine cases of the class to which the proceeding in question belongs.  N.J. Citizen Action v. Riviera Motel Corp., 296 N.J. Super. 402, 411 (App. Div. 1997) (quoting State v. Osborn, 32 N.J. 117, 122 (1960)).  The issue of whether a court has subject matter jurisdiction rests upon having been granted such power by the Constitution or by valid legislation.  State v. Osborn, 32 N.J. 117, 122 (1960).  Here, neither the Constitution nor valid legislation vested subject matter jurisdiction in the trial court.  In fact, the LGEL provides, “The Local Finance Board in the Division of Local Government Services in the Department of Community Affairs shall have jurisdiction. ”  N.J.S.A. § 40A:9-22.4.  It is clear the trial court did not have jurisdiction to make any determination relating to the allegations in Plaintiffs’ complaint.  If a defect in subject matter jurisdiction exists, the court must dismiss for lack of subject matter jurisdiction upon motion “or sua sponte, upon its own initiative. ”  SMS Fin. P, LLC v. M.P. Gallagher, LLC, 2019 N.J. Super. Unpub. LEXIS 1914, *10.  If a court is not authorized to decide the question before them, consideration of the issue is “wholly and immediately foreclosed. ”  Baker v. Carr, 369 U.S. 186, 198 (1962).  Here, the trial court’s consideration was appropriately wholly and immediately foreclosed upon due to the Local Finance Board having exclusive jurisdiction.  Plaintiffs appropriately moved for dismissal based upon the court’s lack of jurisdiction.  The court below should have done that and no more.  III.
[brief] Indeed, with respect to the latter point, not only was it a question for the jury, which the judge forbade as too speculative, barring argument or photographic evidence to support it, but [...] had acknowledged that very possibility -- the perpetrator’s possible escape onto Edgemere -- in his testimony.  [...] testified that when the suspect ran into the walkway between 22 and 24 Ellsworth, he lost sight of that man and that person “could have went [sic] anywhere,” which caused [...] to back up his vehicle all the way onto Stuyvesant Avenue between Ellsworth and Edgemere Avenue in order to thwart the perpetrator’s escape from either of those streets.  (13T 189-14 to 194-3)  Apparently, [...] thought more of the notion of an escape onto Edgemere than the judge did.  This was a “real” theory of defense and the judge had no business thwarting it with these rulings.  Reversal of the resulting convictions is necessarily required where, as here, the error potentially tips the jury’s consideration of the credibility or evidentiary worth of the State’s case.  *State v. Briggs* 279 N.J. Super. 555, 565 (App. Div. 1995); *State v. W.L.*, 278 N.J. Super. 295, 301 (App. Div. 1995); see also *State v. Hedgespeth*, 249 N.J. 234, 252-253 (2021), citing *State v. Scott*, 229 N.J. 468, 484-485 (2017) (errors which affect the weight the jury will give the State’s arguments in favor of conviction versus the defendant’s arguments in favor of acquittal are reversible and never harmless).  The State will likely tell this Court that defendant’s defense was implausible and attempt to argue that no reasonable juror would have accepted it, but *Hedgespeth* and *Scott* are clear that such an appellate argument must be rejected, every time.  It is not for a reviewing court to determine implausibility of a defense when evaluating harmless error.  “Determining implausibility ‘is in the sole province of the jury.  Judges should not intrude as the thirteenth juror. ’”  *Hedgespeth*, 249 N.J. at 253, quoting *Scott*, 229 N.J. at 485.  The jury could have accepted this defense, and the judge was wrong to preclude evidence and argument that supported it.  Defendant’s resulting convictions should be reversed, and the matter remanded for retrial.
[directive] Page 11 Guideline Final Relief . 6.  Court's Determination.  The court shall issue a final extreme risk protective .@} of order if it finds by a preponderance evidence at the hearing that the respondent of poses a significant danger bodily injury to self or others by owning, possessing, or purchasing, receiving a firearm.  The court shall place on the record the reasons supporting its decision to grant or deny the order . of Contents  Order.  If ordered by the court, the final extreme risk protective .(Ql order (1) shall prohibit the respondent from owning, purchasing, possessing, or receiving firearms or ammunition, or from securing or holding a firearms purchaser identification card or permit to purchase a handgun pursuant to N.J.S.A. 2C:58-3, or a permit to carry a handgun pursuant to N.J.S.A. 2C:58-4 during the period that the order is effect, and (2) shall order the respondent to surrender to law enforcement any in firearms or ammunition which the respondent possesses or owns, and any firearms or purchaser identification card, permit to purchase a handgun, permit to carry a handgun held by the respondent.
[brief] (Ab17-19).  [...] claims this permit issuance is the same as [...] because there was a settlement and “blatant non-compliance with applicable regulations, . . . no regulations exists --- 7  If the court does not defer to its interpretation of the CZM rules and instead determines that the Scenic Resources and Design Rule, N.J.A.C. 7:7-16.10 applies to [...]’s development, the court should remand the matter to [...] to review [...]’s permit application’s compliance with that rule.
[brief] ”) (emphasis added); Terminal Const. Corp. v. Atl. Cnty. Sewerage Auth., 67 N.J. 403, 412 (1975) (“Essentially this distinction between conditions that may or may not be waived stems from a recognition that there are certain requirements often incorporated in bidding specifications which by their nature may be relinquished without there being any possible frustration of the policies underlying competitive bidding.  In sharp contrast, advertised conditions whose waiver is capable of becoming a vehicle for corruption or favoritism, or capable of encouraging improvidence or extravagance, or likely to affect the amount of any bid or to influence any potential bidder to refrain from bidding, or which are capable of affecting the ability of the contracting unit to make bid comparisons, are the kind of conditions which may not under any circumstances be waived. ”)