ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The BPU Decision And Initial Decision Did Not Consider The Entire Record; They Relied Upon An Arbitrary And Capricious Selection Of [...]'s Pre-Filed Direct Testimony And Ignored The Cross-Examination Of [...]'s Witnesses  Insofar as the material facts are concerned, this is the heart of the case.  The ID and the BPU Decision claimed to have "credited" the testimony of the [...] witnesses on the critical issue of whether or not the proposed regulator station is "reasonably necessary."  But our initial brief set out in considerable detail how the [...] witnesses presented two testimonies that cannot be reconciled.  Hb10-28.  The first was the pre-filed, lawyer-curated written direct testimony.  [...] says that this is the customary way of presenting direct testimony in the Office of Administrative Law, but that does nothing to make it at all credible.  Yet when confronted with cross-examination, those same witnesses conceded away nearly all of the important assertions in that written direct testimony.  HB10-28.  [...]'s brief merely recites at length its witnesses' written direct testimony, with added embellishment.  This is the testimony that the ID and the BPU Decision credited; their opinions cite almost exclusively to the pre-filed direct testimony.  [...]’s brief says almost nothing about the extensive cross-examination we set forth in our initial brief, and claims without explanation that our brief "distorted" the [...]'s witnesses' testimony on cross.
[brief] [Pa368-388].  That motion was granted on September 13, 2019.  [Pa432-433].  Plaintiffs’ Third Amended Complaint was filed on September 23, 2019.  [Pa436-447].  Respondent [...] a/k/a [...] filed an Answer to the Third Amended Complaint on September 24, 2019.  [Pa448-454].  Respondent [...] filed an Answer to the Third Amended Complaint on September 25, 2019.  [Pa455-468].  Defendant [...] (not a Respondent) filed Answer to the Third Amended Complaint on September 27, 2019 [Pa471-474].  Respondent [...] filed Answer to the Third Amended Complaint on October 25, 2019 [Pa475-482].  Defendant (not a Respondent) [...] filed an Answer on October 28, 2019.  [Pa483-495].  On December 19, 2019, Respondent [...] filed a motion for summary judgment, asserting that they should not have been joined as one of the “John Doe" defendants and that the two-year Statute of Limitations had lapsed before the transactional counsel had provided a copy of the subject lease to Plaintiffs.
[brief] (7T33:1-4; 7T39:24-40:3; 7T40:4-42:13).  Plaintiff’s counsel objected to the repeated comments on the plaintiff not being called as a witness.  (7T40:4-42:13).  The Trial Court then instructed the jury that “[y]ou are not to consider the reasons for why [the plaintiff] is not here today, whether it’s a positive reason or a negative reason.  You’re not to infer why she’s not here and take away anything from that, and I’ll instruct you again when I charge you, but you’re to disregard any statements made by counsel in his closing arguments as to why [the plaintiff] is not here. ” (7T42:23-43:5).  The Trial Court instructed the jury after summations and photographs taken by the plaintiff’s daughter identified as P-9, P-10, and P-11; photographs taken by [...] during his site inspection identified as P-12, P-13, P14, and P-15; and photographs taken by [...] during his recreation identified as D-11A, D-11B, ad D-11C were moved into evidence.
[brief] **  On page 31 of Defendant’s brief, they cite *Allocco v. Ocean Beach Club*, 456 N.J.Super. 124 (App Div 1988) asserting a “similar club” which passed upon rule concerning height restrictions.  (Db31).  *Allocco* has no application here for several reasons.  First, the issue of the club’s authority to impose building restriction was not before the *Allocco* court since Plaintiffs resolved and dismissed counts one and two prior to appeal.  This narrowed the issue, leaving the court to decide the case premised upon the business judgement rule.  *Id.* at 133.  Second, the *Allocco* deed provided that "no[] more than one residence nor more than [a] one-story one- family dwelling shall be allowed on any lot,".  *Id.* at 131.  The [...] deed does not contain this restriction.  (Db53).  This single-story restriction only applies to properties west of Route 35 South.  It has absolutely no application in this case, as Plaintiffs’ property is east of Route 35 South.  Thirdly, the deed in *Alloco* “allowed the Club to adopt rules and regulations concerning the construction and modification of homes in the community. ”  (emphasis ours)  *See, Alloco* at 132.  The [...] Genesis Deed contains no such language and does not grant any authority to [...] to alter or amend the building restrictions.  (Da53).  Next, the defense relies upon an unpublished Law Division case of *Hernan v. Ocean Beach* [...].  (Db32)  The property in that case is referenced as being on [...], which is *west of Route 35 South*.  We do not have the deed, but we know the developer did, in fact, impose a single-story restriction on properties *west of Route 35 South*.  *See*, for example, [...] Deed (Da147)  Notwithstanding same, the *Hernan* case has no binding authority on this Court, it applies to the recorded single-story neighborhood and its reasoning is of little persuasive value.  Finally, the defense raises *Cape May Harbor Village and Yacht Club Ass'n, Inc. v. Sbraga*, 421 N.J. Super. 56 (2011) (Def. Brf. at 32).
[brief] “Db” refers to defendant’s brief.  “Da” refers to the appendix to defendant’s brief.  “Pa” refers to the appendix to the State’s brief.  “PSR” refers to the pre-sentence report.  “1T” refers to the motion transcript, dated April 28, 2023.  “2T” refers to the trial transcript, dated May 2, 2023.  “3T” refers to the trial transcript, dated May 3, 2023.  “4T” refers to the trial transcript, dated May 4, 2023.  “5T” refers to the trial transcript, dated July 12, 2023.  “6T” refers to sentencing transcript, dated July 19, 2023.  Four, and Five); fourth-degree retaliation for past official action, contrary to N.J.S.A. 2C:27-5 (Count Six); and, fourth-degree stalking, contrary to N.J.S.A. 2C:12-10(b) (Count Seven).  (Da6-14; Da53).  On May 1, 2023, on the prosecutor’s motion, Counts Three and Four (harassment) were dismissed prior to trial.  (1T6-13 to 16; Da15).  On May 2, 2023, defendant was tried before the Honorable [...], J.S.C., and a jury, which found defendant guilty on all counts.  (2T1, et seq.; Da45-52).  On July 19, 2023, [...] sentenced defendant to an aggregate term of sixteen years’ imprisonment, reflecting consecutive eight-year flat terms of imprisonment on Counts One and Two (charging terroristic threats during a state of emergency), and concurrent one-year flat terms on Counts Five, Six, and Seven.  (6T47-13 to 50-3; Da53-56).  Defendant received 694 days of jail credit.  (6T47-20-22; Da55).  On or about September 5, 2023, defendant filed a notice of appeal with this Court.  (Da57-59).  This appeal follows.  COUNTERSTATEMENT OF FACTS
[brief] The other hearing dates are: 2T (5/25/23); 3T (7/7/23); 4T (10/20/23) & 5T (12/1/23).  4  It was submitted in “Track Changes” format my Federal deletions were obvious.  It was not a “serious” Complaint, it was purely for remand.  The 5th Federal Complaint is here:  [...].
[brief] ”  *Id.* at 647–48; see also *State v. Zapata*, 297 N.J.Super. 160, 175–76 (App.Div.1997), certif. denied, 156 N.J. 405 (1998).  *8  In reviewing a decision to deny or order a new trial, we recognize that “the trial court's findings at the hearing on the admissibility of identification evidence are ‘entitled to very considerable weight. ’ ”  *Adams*, supra, 194 N.J. at 203 (quoting *State v. Farrow*, 61 N.J. 434, 451 (1972)).  Furthermore, we “give deference to the judge's determination of the extent to which the prejudice, if any, may have contributed to an unjust result. ”  *Hill v. N.J. Dept. of Corrs. Comm'r Fauver*, 342 N.J.Super. 273, 302 (App.Div.2001), certif. denied, 171 N.J. 338 (2002); see also *State v. Kueny*, 411 N.J.Super. 392, 403 (App.Div.2010).
[brief] ”  Aa270-74.  Therefore, Appellant will not belabor this Court with a recitation of the arguments espoused in Points I and II sub judice but will incorporate them herein to the extent they are applicable to the [...]’s findings that Appellant’s libel and slander claims were not supported by the filing of a Notice of Claim pursuant to the TCA and that the remaining State claims were filed beyond the statute of limitation.  See Point I and Point II, sub judice.  [...] also found that Appellant provided no evidence supporting the conspiracy claims alleged in his Complaint.
[brief] (Pa95-115).  [...] found that [...] was ineligible for PERS enrollment through [...] from 2015 onward pursuant to N.J.S.A. 43:15A-7.2(b) because she met the definition of independent contractor under the twenty-factor test.  (1T95:21-96:1; Pa105-07).  [...] has been specifically trained on the IRS twenty-factor test by supervisors who were retired from the IRS.
[brief] Membership in [...] was a clear violation of Section (e).  Respondents effectively claim that board members can belong to any organization they wish as a First Amendment right, and say anything they wish as such a member (BOE-Db26).  Plaintiff asserts that while Board members have a First Amendment right in general regarding 3rd party organizations, Board members are in fact restricted regarding organizations that exist strictly to impact School Boards, and are further banned from giving miss information to the public as a member of such organization.  The Board Members belonging to [...] deliberately mislead the public regarding material aspects of the referendum, a clear violation of section (e).  VII.
[brief] The testimony that was presented was unrefuted.  We haven’t had competing traffic studies.  We weren’t presented with a list of police violations or parking summonses.  You received no contrary information other than the... analysis presented by the applicant’s professionals, the applicant’s property manager.  The courts in New Jersey had said that when you’re making a decision, again relying solely on the evidence that’s presented, it’s inappropriate to speculate or give a hypothetical as to what could happen.  Board’s are resigned to make a decision as to the evidence and the testimony that’s been presented to you, and I would submit to this Board that based on the road we’ve traveled with the scaled back proposal, the concessions that the applicant has made throughout this process, most importantly the last concession of being sure that the new units will be parked in accordance with today’s standards.  All of that testimony and evidence provides you with the ability to grant the variances that we’re requesting and the preliminary site plan approval.  [(Pa478 to Pa482). ]  As has been shown, over a period of four hearings before the Board, Plaintiff presented substantial expert testimony and supporting evidence in its application for a d(5) density variance.
[brief] Similarly, in Laidlow v. Hariton Machinery Co., Inc., 170 N.J. 602 (2002), the plaintiff suffered a debilitating hand injury when his hand got caught in a rolling mill due to the company's failure to engage a safety guide on the machine.  Evidence showed over the course of approximately 13 years there were a number of other near misses and the safety guide was only engaged when OSHA inspectors came to the plant.  Plaintiff alleged that the combination of the employer disengaging the safety guide and its deception of OSHA constituted an intentional wrong.  Again, the Court found that plaintiff’s intentional wrong claim should be submitted to a jury for its consideration.  Finally, in *Mull v. Zeta Consumer Products*, 176 N.J. 385 (2003), an employee was allowed to pursue an intentional wrong claim against his employer based on allegations that the employer altered the original design of a machine, that it failed to warn employees that the machine had sudden start up capabilities and that safety switches had been removed.
[brief] Later, plaintiff’s counsel confronted [...] with an email she claimed to have written to herself on November 12, 2022 and saved to the Drafts folder of a joint email account she shared with [...], in which she stated “Case for [...][3]  I don’t want to be helping with this case but I have been subpoenaed.  I don’t have a choice to testify.  . . .  I still want to marry [[...]] because I love him and at least being married would allow me not to testify against [...], or [...], or anything else. ” (Pa244; Pa250).  When [...] was confronted with this email, counsel for [...] stood up, walked over to the plaintiff’s attorney, and unilaterally stopped the deposition, and refused to allow [...] to take any more questions about it (Pa178/273:9-295:11).
[brief] On May 8, 2020, a Somerset County grand jury returned Indictment No. [...], charging the defendant, [...], with one count of fourth-degree animal cruelty, contrary to N.J.S.A. 4:22-17(c)(1).  (Da1)¹ [...] was found guilty by a jury after a two-day trial before the Honorable [...], J.S.C., on May 9 and 10, 2023.  (3T 103-24 to 104-3; Da22-23)  On June 23, 2023, [...] sentenced [...] to 180 days in Somerset County Jail.  (4T 29-4 to 6)  In addition to the custodial sentence, [...] ordered that [...] have no contact with the subject of the indictment, a dog, that he be prohibited from owning or exercising care or control over any other animals, and that he attend anger management counseling.  (4T 29-6 to 14)  The judge ordered that these conditions be added to the terms of [...]’s existing parole supervision for life.  (4T 29-10 to 14)  A Notice of Appeal was filed on July 19, 2023.  (Da27-29)  ¹ Da – defendant’s appendix  1T – May 8, 2023 – trial 2T – May 9, 2023 – trial 3T – May 10, 2023 – trial 4T – June 23, 2023 – sentencing
[directive] Duty to Inspect and Report Malfunction.  An officer equipped with a BWC shall be responsible for determining that the device is fully functional and that its battery is adequately charged at the start of the officer’s duty shift and before going into the field.  If a malfunction is detected, the officer shall report the malfunction to a supervisor before going into the field.  If the BWC malfunctions while out in the field, the malfunction upon its discovery shall be reported to the officer’s supervisor as soon as it is safe and practicable to do so.  3.7
[brief] 1.  [...]’s Violation of Probation Charge, Conviction, and Reversal on Direct Appeal.  On October 28, 2013, [...] pleaded guilty to third-degree Unlawful Possession of a Controlled Dangerous Substance in violation of N.J.S.A. 2C:35-10.  (Pa138; Pa229).  The trial court sentenced [...] to a probationary term instead of incarceration.  Ibid.  [...] was arrested eleven months later, while still on probation, on a --- 3  Because the procedural history and counterstatement of facts are closely related, they are combined for efficiency and the court’s convenience.
[brief] Second, on Defendants’ motion for summary judgment, Plaintiffs were entitled to all favorable inferences.  Brill, supra, 142 N.J. at 540 (requiring that the facts be “viewed in the light most favorable to the non-moving party”).  Thus, beyond the improper credibility determination, if the trial court had properly applied Brill, it should have resolved the conflict in Plaintiffs’ favor on summary judgment—at worst, finding that an issue of fact exists that precludes summary judgment.
[brief] The Procedural History and Statement of Facts are represented together for the Court’s convenience and to avoid repetition.  codes; (4) the fee schedule amounts for those CPT codes; (5) the amounts paid by the health insurer; and (6) the amounts paid (or not paid) by Defendant.  Pca1-84.  Consequently, on February 21, 2022, Plaintiff amended the Demand for Arbitration seeking reimbursement pursuant to the fee schedule for the unpaid medical expenses outlined in Defendant’s arbitration summary rather than the lump sum lien and stipulated to the amounts shown in Defendant’s own arbitration summary for purposes of calculating reimbursement. \(^2\) Pa15.  Plaintiff’s amendment to the Demand for Arbitration was authorized by the arbitrator and is recognized in the arbitration award.
[brief] That is a concerning state of affairs.  It is even more concerning given the history of reliance on unreliable forensic techniques in the criminal justice system and the fact that there have been documented cases of misattribution based on fingerprint analysis:  To the untrained eye, and especially the eyes of lawyers and judges, anecdotal forensics look scientific.  Phrenologists used highly detailed and specific maps of skulls and the corresponding bumps found on them, and identification experts use methods such as ACE-V.  A century from now, however, the anecdotally-based beliefs of forensic experts are likely to survive much as phrenology endures today.  They will be no more than abject lessons from the annals of the history of science.  [...], Anecdotal Forensics, Phrenology, and Other Abject Lessons from the History of Science, 59 Hastings L.J. 979, 998–99 (2008)  In short, there is no prior precedent that is relevant to the questions before this Court.
[brief] [...] testified that he specifically reviewed the 2005 Master Plan and the 2009 Vision Plan:  The overarching theme that I got from the Vision Plan was just revitalization.  For the bayside it spoke to underutilized properties.  For the boardwalk district, it spoke about the branding that is provided to the Borough.  I look at this development as checking two options.  Again, as I indicated, parking lots are not an aesthetically pleasing improvement.  This development will continue the revitalization that you see through the Borough and it also provides the branding that the Borough is looking for.
[brief] In this case, the State argues that there was reasonable suspicion to stop [...] either considering the relayed contents of the 9-1-1 call, [...]’s testimony, and the video, or just based on the relayed contents of the 9-1-1 call and the video.  No matter what is considered, the failure to corroborate an assertion of illegality that stems from a 9-1-1 call is fatal to the State’s case.  The order granted suppression must be affirmed.
[brief] [...]  Attorneys for Plaintiff  Of Counsel: [...], Esq.  (Atty. I.D. No. 015541980)  Of Counsel and On The Brief: [...], Esq.  (Atty. I.D. No. 001321996)  Date: May 13, 2024 ¹ Decedent’s name is spelled [...]; it is inadvertently misspelled in the caption.
[brief] ”  See id. at 245.  All those cases --- 35  In In re Herbstman, 84 N.J. 485, 421 A.2d 592 (1980), the attorney was disciplined for certifying to court about ownership of fund under attorney’s control without mentioning of competing claims made against fund.  In In re Turner, 83 N.J. 536, 416 A.2d 894 (1980), the attorney was found ethical infraction when attorney failed to advise court about client’s receipt of monies in the course of receivership action.  enunciate the principle that an attorney is under a duty, when the proper administration of justice so requires, to disclose all pertinent and relevant facts to the court so that it may act fairly.  See id. at 80 N.J. 234, 248 (2004).36  Applying the law to the facts in the instant case, attorney [...]’s affirmative misrepresentations to various courts were fraud upon the court, resulting in the unconstitutional decision and opinion of [...] of the Superior Court New Jersey dated September 12, 2012 (Docket No.: [...]) (Da352) and the decision and opinion of the Appellate Division of the Superior Court of New Jersey dated July 21, 2016 (Docket No.: [...]) (Da429) in the matrimonial action Fou v. Fou.
[brief] 2012: $45,000.00; 2013: $45,000.00; 2014: $45,000.00; 2015: $50,000.00; 2016: $50,000.00; 2017: $50,000.00; 2018: $50,000.00; 2019: $50,000.00; 2020: $55,000.00; 2021: $55,000.00; 2022: $55,000.00 then January through May 2023 at $4,583.34 X 5 months = $22,916.70, for a total of $872,916.70 in rental payments made by Plaintiff [...] and collected by the [...].  •  [...], or more accurately the heirs to the former owner of the [...], were the lawful owners of the subject property.
[brief] The Respondents’ Brief In Opposition to Appeal (“State’s Brief”) and the decision below share a central fallacy: the contention that the SFRA formula has been upheld as constitutional statewide and, therefore, [...] must prove a new T&E violation.  In fact, the Supreme Court has never found that the State has remediated the severe and longstanding T&E violation in the Abbott litigation.  Nor did the Court in Abbott v. Burke, 199 N.J. 140 (2009) (“Abbott XX”), relieve the State of its burden to show the SFRA remains constitutional when the Adequacy Budget – the core metric of the formula’s efficacy as a remedial measure for the T&E violation in [...] – has been significantly underfunded for over a decade.  Relying on a limited record, the trial court concluded that the SFRA is constitutional in [...] without evaluating or even considering the compelling evidence of the State’s failure to operate the SFRA formula under the “express, clear and exacting” mandates imposed by Abbott XX for SFRA’s “optimal” operation in future years.  Correcting that error requires reversal of the decision below and a remand to develop a full evidential record to determine whether the State has allowed “deficiencies of a constitutional dimension” to “emerge” in SFRA’s operation requiring judicial branch remediation.  ---  1  All capitalized and abbreviated terms used herein have the same meaning as defined in Appellants’ initial brief submitted on November 20, 2023.  ARGUMENT I.
[brief] ”  State v. Garcia, 245 N.J. 412, 430 (2021).  “A court abuses its discretion when its ‘decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis. ””  *State v. Chavies*, 247 N.J. 245, 257 (2021) (quoting *State v. R.Y.*, 242 N.J. 48, 65 (2020) (internal quotation omitted)).  “[A] functional approach to abuse of discretion examines whether there are good reasons for an appellate court to defer to the particular decision at issue.
[brief] And the inadvertent circumstances did not warrant the drastic remedy of dismissing the indictment with prejudice.  As the judge recognized at the motion-to-dismiss hearing, the delayed diagram had been turned over while they were “still in the middle of the motion,” while they were “still litigating the case,” and while they were still at a point “where [the judge] c[ould] deal with it and fix it[.]” (6T47-13 to 48-6).  Because any prejudice to defendant was remediable with a lesser remedy, the judge properly exercised her discretion in declining to dismiss the indictment for this reason alone.