ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Decision and Order of the Trial Court dated February 16, 2024…………  Sa14-33  TABLE OF APPENDIX  Lease Between [...] and [...]..........................  Da1  [...] Purchase of Liquor License from [...].......  Da83  [...] Operating Agreement – February 8, 2013..............................  Da89  [...] Operating Agreement – October 11, 2013.............................  Da100  [...] and [...] Communications..............................................  Da111  Memo Agreement for [...] to fnud [...]..............................  Da115  [...] Statement..................................................................................  Da116  [...] and [...] Communication...............................................  Da139  PRELIMINARY STATEMENT
[brief] *(6T:56-2 to 58-3); (6T:95-14 to 96-4); (17T:72-22 to 75-24)*  “A prosecutor’s declaration of a defendant’s guilt, at best, implies that it is the prosecutor’s personal opinion. ”  *Rivera*, 437 N.J. Super. at 449.  “Our Supreme Court suggested that a prosecutor may state such a belief if he or she makes it “perfectly plain” that the belief “is based solely on the evidence that has been introduced at trial. ”  Id.  Here, the Prosecutor stated, “This is not simply an insanity case. ” (6T:34-4).  “This is a murder trial. ” (6T:34-4 to 5).  “This is about four victims, four people who were killed in an unprovoked attack in their own home when they should have been safe.” (6T:34-5 to 7).  Then then prosecutor proclaimed, “This is murder. ” (6T:34-7 to 8).  In denying the motion for a mistrial the court made a false equivalence and stated that the defense made the same comments regarding insanity.  (6T:58-4 to 11).  However, in the defenses opening statement, the defense stated, “Because the evidence will show that this is insanity. ” (6T:40-17 to 18).  The Prosecutor telling the jury that this was not an insanity case in her opening statement was problematic.  (6T:34-4).  Likewise, a prosecutor telling a jury that “this is about four victims, four people who were killed in an unprovoked attack in their own home when they should have been safe”, cannot be construed as anything other than the Prosecutor’s opinion of the facts of the case.  (6T:34-5 to 7).  Nowhere in that statement does the Prosecutor make it perfectly plain to the jury that the statement was based on the evidence to be introduced in trial.  437 N.J. Super. at 449.  Finally, if the Prosecutor’s personal opinion wasn’t clear enough, she then unambiguously said “this is murder. ” (6T:34-7 to 8).  These inflammatory and prejudicial opinions by the Prosecutor deprived [...] of a fair trial.  (16T:11-21).  Furthermore, the Court erred by not granting a mistrial or giving a curative instruction.  (6T:57-10 to 58-15).  b.
[brief] (Da77, ¶5).  [...], the sole remaining member of Defendant [...] and [...] and co-executrix of [...], refused to complete the transaction.  (Da16, ¶¶88-90; Da77, ¶6).  One year later, on May 23, 2023, [...] amended both the [...] Operating Agreement and the [...] Operating Agreement to delete the arbitration provisions.  (Da143, Article 4.6 (viii); Da159, Article 4.6 (viii)).  On August 23, 2023, [...] filed this Chancery Action, seeking, inter alia, to compel defendants [...], [...], and [...] to specific performance of the May 21, 2022 agreement.
[brief] [...], : CIVIL ACTION : ON APPEAL FROM A Plaintiff-Appellant, : FINAL ORDER OF THE : SUPERIOR COURT : OF NEW JERSEY, vs. : LAW DIVISION, : ESSEX COUNTY  RICARDO A. ALBOREDA : DOCKET NO. [...] GUAPACHA, [...] and : [...] (being fictitious and unknown), Defendants-Respondents.  : Sat Below: : HON. [...], : J.S.C. BRIEF AND APPENDIX FOR DEFENDANTS-RESPONDENTS  RICARDO A. ARBOLEDA  GUAPACHA AND [...]  LAW OFFICE OF [...]  Attorneys for Defendants-Respondents Ricardo A. Arboleda Guapacha and Alba Vidal
[brief] Additionally, the trial court failed to question [...]’s financial circumstances, including the veracity of [...]’s claims about loans from friends and family members.  She never produced any promissory notes as proof of these purported “loans” that allegedly total approximately $270,000.  (See Db39).  [...] further claims in her brief that she owes $75,000 to various bank credit cards.  (See Db39).  According to her counsel’s September 22, 2022 Certification of Services, the total counsel fees billed to [...] was $478,279.35.  Her counsel certified that [...] was billed a total of $383,645.39 by the [...] and owed a total of $91,545.02 to the [...], which meant that [...] paid a total of $292,100.37 to that firm.  Her counsel further certified that [...] was billed a total of $94,633.96 by the [...] and the total owed to WLG (including pre-bill) was $22,502.30, which meant that [...] paid $72,131.96 to that firm.  It was further clear to the trial court that [...] retained significant assets in equitable distribution at least $280,000, not including the valuable jewelry and designer accessories and clothing (in excess of $1 million to [...]’s estimation).  C.
[brief] A.  The Parties.  Plaintiffs collectively own real property consisting of approximately 24 acres, designated as Block 58, Lots 1.01, 1.02, 1.03, 1.07 and Block 59, Lot 5.01 (the “Property”) on the tax map of the [...].  See Complaint ¶4; Pa 107.  A portion of the Property, consisting of approximately 22 acres, has been designated an area in need of redevelopment and included in the [...] (“Redevelopment Plan”) for decades.  Id.  In 2001, the Mayor and Council of the [...] (“Borough”) created the [...] (“Redevelopment Agency”) to administer the Redevelopment Plan.  See Complaint ¶9.  B.
[brief] (Pa165).  Without a warrant this was a violation of [...]’s rights under the New Jersey State Constitution, Article I ¶ 7 and his Fourteenth Amendment Due Process Right to notice and an opportunity to be heard before the document was unlawfully seized by law enforcement.  The third parties to the criminal conspiracy were [...] Esq. ([...]’s former counsel) and his parents Eugenia and [...] ([...] clients).  (Pa276).  On March 7, 2006, the three Emmanouils filed a complaint against [...] in the United States District Court for the District of New Jersey.  (Pa271).  The last paragraph in that complaint contained the identical alleged criminal history of [...], unlawfully seized on January 11, 2006 (Pa165).  Sometime in the late summer or early fall of 2006 an embellished version of the alleged criminal history report was published on the internet in the name of [...]
[brief] The questions for purposes of whether the common knowledge exception applies are therefore: 1) would a person of reasonable intelligence be able to determine whether [...] owed a professional duty to the Appellants regarding the professional engineering services? and 2) whether [...] breached that duty by continuing to develop its engineering plans for the Project once ownership of the Project transferred to [...]?  The questions involve the evaluation of the proper use, and determination of ownership and rights to engineering plans and designs in the field of professional engineering under the complex factual circumstances of the underlying case.  No average person could be expected to perform such an evaluation without a professional engineer providing an opinion on the standard of care under those complex circumstances.  Thus, Appellants’ claim against [...] in the underlying case implicates “technical matters peculiarly within the knowledge of [the licensed] practitioner[].”  Cowley v. Virtua Health System, 242 N.J. at 17.  Appellants admitted in their complaint that their claim against [...] was premised upon professional and ethical duties that they alleged [...] owed to them.  (Pa19).  Those professional and ethical duties are clearly beyond the ken of the average juror without the aid of expert testimony detailing what those ethical and professional duties are, and how [...] breached them.  The underlying case is not analogous to ones where the common knowledge exception applied, such as a dentist pulling the wrong tooth or a medical professional giving a patient gas instead of fluid.  Since the common knowledge exception does not apply, Appellants’ failure to obtain and serve an affidavit of merit within the statutory time properly resulted in dismissal of the claim against [...] with prejudice.  The ruling of the Trial Court should therefore be affirmed.
[brief] Utilities cannot simply spend as much as they like and hope for recovery of the expenditure in rates.  Rather, in order for a utility’s costs to be eligible for rate recovery, such --- \(^3\) I/M/O the Petition of [...] for a Determination Pursuant to the Provisions of N.J.S.A. 40:55D-19 (Susquehanna – Roseland Transmission Line, BPU Docket No. [...] (April 21, 2010).  \(^4\) I/M/O the Petition of [...] for a Determination Pursuant to the Provisions of N.J.S.A. 40:55D-19, BPU Docket No. [...] (December 16, 2015)  \(^5\)  I/M/O the Petition of [...] for a Determination Concerning The Southern Reliability Link Pursuant to N.J.S.A. 40:55D-19 and N.J.S.A. 48:9-25.4.  BPU Docket No. [...] (March 18, 2016) costs must be reasonably and prudently incurred.
[brief] *But See Florida v. J.L.*, 529 U.S. 266, 274 (2000) (anonymous tip alone not enough to reach level of reasonable suspicion).  This is because informants whose names are available face a serious risk committing a crime if they provide false information.  *See Id.*  Officers have a duty to fully --- 5In holding that the heightened-caution standard for removing passengers requires more than the per se rule for removing drivers, but less than the Terry standard, the Court noted, “We adopt this lesser standard because of the need to protect police officers and because of the minimal intrusion the requirement to exit the car imposes on the passenger.
[brief] Point II  A limiting instruction was unnecessary because [...]’s testimony was not inadmissible hearsay.  Defendant’s argument that a limiting instruction was necessary fails because [...]’s testimony did not improperly imply an unavailable witness had implicated the defendant.  While it is true that “[w]hen inadmissible evidence is admitted in error by the trial court, a curative instruction may sometimes be a sufficient remedy,” no inadmissible evidence was admitted in error in this case.  State v. Prall, 231 N.J. 567, 586 (2018).  A curative instruction was not required or appropriate in this situation.  “Whether testimony or a comment by counsel is prejudicial and whether a prejudicial remark can be neutralized through a curative instruction or undermines the fairness of a trial are matters ‘peculiarly within the competence of the trial judge. ’”  *State v. Yough*, 208 N.J. 385, 397 (2011) (quoting *State v. Winter*, 96 N.J. 640, 646-47 (1984).  Again, [...]’s testimony was not improper in any way, See Point I, ante, and even if it had been, was not “clearly capable of producing an unjust result” as to require reversal and was harmless, R. 2:10-2.
[brief] (ECF 63-1, at 3.)  At the discovery conference on July 18, [...] explained that the hits on these irrelevant documents were due largely to the breadth of the search terms and the fact that one of the custodians was [...]’s CEO.  (ECF 64, at 14-15.)  The search terms are: “[...]” OR “[...]” OR “[...]” AND “Derby” OR “usd260” OR “[...]” OR “[...]” OR “age” OR “old” OR “retirement” OR “woman” OR “female” OR terminate OR terminated OR fired OR fire.  The court expresses no opinion on the propriety of this type of request for production at this procedural juncture (i.e., where the propounding party specifies search parameters) because [...] has not lodged any objection to the form of RFP No. 7.  [...] now seeks to compel the production of all documents that hit on the parties’ agreed-upon search terms without further relevance review by [...] because [...] characterizes all resulting hits as presumptively relevant and responsive.
[brief] 7.  **Utilities.**  All applications and connections for necessary utility services on the demised premises shall be made in the name of lessee only...  8.  **Entry and Inspection.**  Lessee shall permit Lessor or Lessor’s agents to enter the premises at reasonable times and upon reasonable notice for the purpose of inspecting same...and will permit Lessor...within sixty (60) days prior to the expiration of this lease, to place upon the premises any usual “To Let” or “For Lease” signs and permit persons desiring to lease the same to inspect the premises thereafter.
[brief] This appeal arises out of an action in lieu of prerogative writs wherein [...] challenged the decision of the [...] granting conditional use and site plan approval to [...].  The [...] approval permits [...] to operate an adult use “micro cannabis” retail business within the [...].  The [...] unanimously granted [...]’ application and included a detailed statement of facts and conclusions of law in its memorializing Resolution.  (Da454).  The [...] relies on those findings of fact as well as the record before the [...] and offers the following, which more specifically relate to the instant appeal.
[brief] [...] ignores the substance of DEP’s analysis and insists that the Project does not comply with the Scenic Resources and Design Rule.  (Ab14-16).  In fact, [...] does not address DEP’s rationale at all even though [...] previously acknowledged DEP’s reasoning in a public comment (Aa46) and its adjudicatory hearing request (Aa64-65).  With that limited framing of the issues as its starting point, [...] argues by not applying the Scenic Resources and Design Rule to the Project, DEP impermissibly waived one of its own regulations, as discussed in Dragon v. N.J. Dep’t of Env’t Prot., 405 N.J. Super. 478, 492 (App. Div. 2009).
[brief] With respect to each count of the First Amended Complaint asserted against [...], Plaintiff alleges that [...]’s conduct “was so egregious as to cause a reasonable person to conclude with practical certainty that some employee of Defendant, [...] would be injured in the very manner that occurred to the Plaintiff. ”  Ja45.  In the Second Count Plaintiff alleges, “All of these acts resulted in a substantial risk of physical injury inherent in the nature of the specific work operation assigned to Plaintiff,” and describes [...]’s conduct as “intentional wrongdoing. ”  Ja46.  Thus, Plaintiff has premised his entire theory of liability against [...] on the very type of conduct expressly excluded by the New Jersey Part Two Employers Liability Endorsement.
[brief] Despite repeated objections, the trial court correctly permitted testimony from [...] as to whether the transactions he described could “potentially have been the product of fraudulent activity. ” (10T69:20 to 71:17; 11T35:2-24).  [...] testified that he had experience in examining books and records for fraud, and he testified about certain factors that might be indicative of fraudulent conduct that he observed in the [...] and [...] financial books and records.  (10T120:19 to 121:24).  The trial court explained that the issue of intent was ultimately one for the court to decide based on a weighing of the evidence, but that [...] could provide expert testimony – based on his experience and the data presented to him – why the defendants’ conduct warranted scrutiny.
[brief] **POINT III**  THE PARAMETERS OF THE LEGAL DUTIES OF A PUBLIC SERVANT ARE A LEGAL MATTER THAT SHOULD BE INSTRUCTED TO THE JURY BY THE JUDGE.  NOT ONLY WERE THEY NOT INSTRUCTED HERE -- REVERSIBLE ERROR UNTO ITSELF -- BUT THEY WERE INSTEAD ONLY THE SUBJECT OF TESTIMONY FROM MULTIPLE FACT WITNESSES, THEREBY ALLOWING THE JURY TO PICK AND CHOOSE WHAT OF THAT FACTUAL TESTIMONY IT DECIDED TO CREDIT.  (PARTIALLY RAISED BELOW; RULINGS AT 14T 138-10 TO 11; 14T 140-10 TO 14; 16T 215-13 TO 23; 17T 82-16; 20T 168-23 TO 184-20)  Official misconduct, as indicted in this case, is committed when a public servant, with a purpose to obtain a benefit, either: (1) commits an act relating to his office, but “constituting an unauthorized exercise of his official functions,” knowing that it is unauthorized, *N.J.S.A. 2C:30-2a*, or (2) “refrains from performing a duty which is imposed upon him by law. ”  *N.J.S.A. 2C:30-2b*.  It is black-letter law that it “is the court’s function,” not the role of witnesses, “to ascertain the law” governing an allegation of official misconduct, “and explain it to the jury. ”  *State v. Grimes*, 235 N.J. Super. 75, 80 (App. Div. 1979).  “Whether a statutory duty is imposed upon a public officer is a legal issue,” State v. Deegan, 126 N.J. Super. 475, 482 (App. Div.), certif. den. 654 N.J. 283 (1974) (emphasis added), and, thus, part of the law that must be explained to the jury by the judge under Grimes.  See also State v. Brady, 452 N.J. Super. 143, 165-166 (App. Div. 2017) (dismissing an official-misconduct indictment when the prosecutor presenting the matter to the grand jury did not explain the legal duties of the public official in question to the grand jury), citing Grimes, 235 N.J. Super. at 79.  Because here the jury instruction contained absolutely no explanation of the legal duties of a suspended trooper regarding turning in ID or displaying ID, and, instead, those duties were only the subject of testimony from fact witnesses, which allowed the jury to believe, or disbelieve, any aspect of that testimony -- as with any factual testimony -- the jury was inappropriately left without a proper and full legal definition of all of the elements of official misconduct.  Consequently, defendant’s rights to a proper jury verdict under the Sixth Amendment, to due process under the Fourteenth Amendment, and to the corresponding rights under the state constitution were violated, and his convictions must be reversed and the matter remanded for retrial.
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[brief] The Court then went on to evaluate what the process server did, where he was, the confirmation of this information by the GPS data, and the information that was on the Affidavit of Service.  Here the Appellant argues that Affidavit of Service from [...] should be discounted because as a formal, official process server [...] had so many files and so many service jobs over the course of so many years that he could not remember each one with accuracy.  But the Court addressed this in its decision:  Yes, his testimony was that he doesn't -- he doesn't remember.  But that whatever -- whatever is in the affidavit is -- is what took place because that -- that's all that exists.  He does many, many of these services a day, a year.  And to try to pin him down -- I recognize that there was -- that there was testimony at a deposition that, you know, he thinks between 30 seconds and a -- a minute is when he would enter this GPS, push the GPS button, but he said today that it's, typically, under five minutes.  So -- and -- and he testified that he didn't always do it right at the house or right at the business or the driveway, or whatever, he sometimes drove away.  And, again, he has no idea what he did on this - on this particular instance.  So who was served?  [...], according to the affidavit.  There's no such person.  Where did that name come from?  Well, her name is [...].  I suspect that when the process server met with her, whether it was at the door, in the driveway, as she's putting things in the car, he asked her name.  She said, "[...]," and somebody might actually think she said Linda, and he wrote down Linda.  The point is, and really the absolute uncontroverted evidence here is that at approximately the proper time on the proper day the process server was in that school parking lot, which is a very, very short distance from the house.  What [...] wants me to believe is that the process server would have been at that location at approximately the right time of service and he didn't actually serve the documents.  That's just not credible.  I just -- I don't believe that for one minute.  And, certainly, if the standard is clear and convincing evidence, it's not clear and convincing evidence that process was not served.  It's clear that the process server was there.  He spoke to somebody and believed that somebody indicated her name was [...], and that's what he wrote, and the GPS coordinates proof.  There's an expert who says you can't -- the only thing on that form that can't be tampered with is the GPS coordinates.  He was there.  [Trial Transcript, 4/20/2023, at T4 98:7 to 99:23.]
[brief] The burden of proof cannot be accomplished simply by introducing hearsay evidence.  *N.J.A.C. 1:1-15.1(b)*.  *In the Matter of [...], Juvenile Justice Commission*, 2009 N.J. AGEN LEXIS 250, *14-15*, OAL DKT. NO. [...] (April 15, 2009), the Court held:  "While hearsay evidence is admissible in administrative hearings, *N.J.A.C. 1:1-15.5*, in order to prove its case, the appointing authority must produce a residuum of competent evidence to prove any ultimate fact.  *Weston v. State*, 60 N.J. 36 (1972).  Although credible hearsay evidence may serve to buttress the foundation of credible competent evidence such as to provide a more satisfactory degree of proof of guilt, hearsay that is not otherwise admissible under the Rules of Evidence (thus competent) cannot by itself support an ultimate finding of fact.  See also, *Russian White House Restaurant v. Village of Ridgewood*, 2000 N.J. AGEN. LEXIS 188, *109, OAL DKT. NO. ABC 7585-97 & ABC 7036-98 Consolidated* (November 29, 1999)(the residuum rule requires legally competent evidence to support the entire decision or ultimate finding of fact.