ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[directive] I.  Vehicles Subject to this Guidance:  Definitions  The purpose of this Guidance is to address certain vehicle use on public lands and public roads.  ORV is an umbrella term that includes vehicles such as pick-up trucks and Jeeps that can legally be driven on public roads, as well as ATVs such as dirt bikes, quads/four-wheelers, and snowmobiles, which cannot be used on public roads.  With limited exceptions related to permitted times and places, State law generally prohibits operation of the broad category of ORVs on public 2 lands, including parks and wildlife management areas.  State law also prohibits operation of ATVs, snowmobiles, and dirt bikes on public roads.  ORVs  “[A]ny motorized vehicle with two or more wheels or tracks that is capable of being operated off of regularly improved and maintained roads including, but not limited to, motorcycles . . . , snowmobiles and all-terrain vehicles, and dirt bikes . . . .”  N.J.S.A. 39:3C-32.  Snowmobiles  ATVs Dirt Bikes  “[A]ny motor vehicle, “A motor vehicle, designed “[A]ny two-wheeled designed primarily to travel and manufactured for off-road motorcycle that is designed over ice or snow, of a type use only, of a type possessing and manufactured for off- which uses sled type runners, between three and six non- road use only and that does skis, an endless belt tread, highway tires .  . . .”  N.J.S.A. not comply with Federal cleats, or any combination of 39:3C-1.  Motor Vehicle Safety these or other similar means of Standards or United States contact with the surface upon Environmental Protection which it is operated .  . . .”  Agency on-road emissions N.J.S.A. 39:3C-1. standards. ”  N.J.S.A. 39:3C- 1.  ORVs, ATVs, snowmobiles, and dirt bikes that are used in lawful areas in New Jersey are generally subject to the following requirements:  (1) the vehicle is registered and numbered in accordance with N.J.S.A. 39:3C-3, N.J.S.A. 39:3C-4, N.J.S.A. 39:3C-5, and N.J.S.A. 39:3C-8; (2) the owner obtains liability insurance (N.J.S.A. 39:3C-20); (3) the vehicle is equipped with headlights, taillights, brakes, reflectors, and a muffler (see N.J.S.A. 39:3C-24); and (4) the operator older1 39:3C-16).2 of the vehicle is 18 years old or (N.J.S.A. II.
[brief] A.  Conflict of Interest Rules and Law.  Conflicts of interests are governed by RPC §1.7, Conflict of Interest: General Rule.  RPC §1.7 provides, in pertinent:  (a)  Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest.  A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer.  (b)  Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) each affected client gives informed consent, confirmed in writing, after full disclosure and consultation, provided, however, that a public entity cannot consent to any such representation.  When the lawyer represents multiple clients in a single matter, the consultation shall include an explanation of the common representation and the advantages and risks involved; (2) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (3) the representation is not prohibited by law; and (4) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.  An attorney cannot engage in concurrent representation where there is “a significant risk that a lawyer’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of the lawyer’s other responsibilities or interests. ”  In re Opinion No. 17-2012 of Advisory Comm. on Pro. Ethics, 220 N.J. 468, 478–79 (2014).  To identify such a risk, “[t]he critical questions are the likelihood that a difference in interests will arise, and if it does, whether it will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. ”  Id.  However, “joint representation of multiple parties whose interests are potentially diverse is permissible only if ‘there is a substantial identity of interests between them in terms of defending the claims that have been brought against all defendants.
[brief] ........................................................................................................12  PROCEDURAL HISTORY  [...] relies on the State’s Procedural History.  (Sb1-4)¹  STATEMENT OF FACTS  Defendant relies on the State’s Statement of Facts.  (Sb4-10)  ¹  The following abbreviations are used:  1T – Oct. 24, 2024 (Joinder and 404(b) Motions)  2T – Dec. 13, 2024 (Motion for Reconsideration)  3T – Dec. 19, 2024 (Motion for Stay)  Sb – State’s Brief Ma – State’s Appendix Ca – State’s Confidential Appendix LEGAL ARGUMENT POINT  I  BECAUSE THE TRIAL COURT APPLIED  THE CORRECT LEGAL TEST AND DID NOT ABUSE ITS DISCRETION, THIS COURT MUST DEFER TO THE TRIAL COURT AND SHOULD AFFIRM THE ORDER DENYING THE STATE’S MOTION TO CONSOLIDATE THE APRIL 20 ROBBERY WITH THE APRIL 23 CARJACKING AND DENYING THE STATE’S MOTION TO ADMIT EVIDENCE OF THE APRIL 20 ROBBERY AT THE TRIAL FOR THE APRIL 23 CARJACKING.
[brief] Ibid.  In the instant matter, the City used its toolbox to craft the Redevelopment Plan.  It did so just as the LRHL allows by crafting unique land uses and building requirements for particular parcels.  The zoning change must be understood in relation to the redevelopment context, wherein municipalities are tasked with the special mechanisms to create overlay zoning that respond to the particular nature of areas in need of redevelopment and that permits a finely tuned approach to individual parcels and lots.
[brief] The State’s expert, [...], explained the difference between clinical and forensic psychiatry:  “It’s a very sharp distinction.  So clinical psychiatry involves the assessment and treatment of patients for the benefit of the patient.  Forensic psychiatry is the evaluation of people who are not patients …  And that is for the benefit of their lawyers or the State or the Federal government of whoever is seeking the evaluation. ”  (12T42-10 to 23).  [...] stated, “You can’t be both the patient’s advocate and sponsor and helper and also be objectively analyzing for some third party.  They are two very separate roles,” which “creates conflicts, and sometimes insurmountable ethical conflicts.  So, to avoid ever reaching one of those cases with an insurmountable ethical conflict, best practice is never to see someone for both clinical and forensic purposes. ” (12T162-4 to 8; 13T69-11 to 70-21).
[brief] 5.  On August 20, 2020  [...] filed a Medpay arbitration which was assigned Docket Number [...] as a result of a motor vehicle accident which occurred on July 10, 2019 involving the injured party [...] and the [...] insured, [...].  On or about August 23, 2022, the Arbitrator entered an award in favor of [...] NJ Insurance Company in the amount of $10,040.00.  See arbitration award (Da147 – Da155).
[brief] ”  Rule 3:7–7 also provides that “[r]elief from prejudicial joinder shall be afforded as provided by R. 3:15–2. ”  Rule 3:15–2(a) states that a court should grant severance if one defendant has made a statement implicating any other defendant and that portion of the statement cannot be effectively redacted.  That rule is inapplicable here.  Rule 3:15–2(b) provides that in cases where it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation the court may order an election or separate trials of counts, grant a severance of defendants, or direct other appropriate relief.
[brief] *Id.* at 561.  The statute does not counterbalance the general rule that each litigant bears his or her own litigation costs, even when there is litigation of “marginal merit. ”  *Venner v. Allstate*, 306 N.J. Super. 106, 113 (App. Div. 1997).  Thus, “[w]hen the plaintiff’s conduct bespeaks an honest attempt to press a perceived, though ill-founded and perhaps misguided, claim, he or she should not be found to have acted in bad faith.
[brief] There are several compelling circumstances present in this matter to not enforce the settlement agreement.  First, Plaintiff jumped the gun and took over the property.  In addition, there is no proven and contingent “dumping” claim addressed by the current lawsuit or addressed by the Settlement Agreement.  Giving Plaintiff approximately $800,000 as part of a consent judgment for Plaintiff’s allegations of contaminated debris being dumped onto the property by Defendant would deprive Defendant of discovery, defenses, expert opinions, and ability to sue any [responsible] parties.  This alleged “property damage claim” is better suited in a separate action.  \(^1\)  The Court may take judicial notice of other Orders in the action.  See Narain v. George Harms Constr. Co., 2023 WL 3575597, at *8 (N.J. Super. Ct. App. Div. May 22, 2023), appeal denied sub nom.  Narain v. George Harms Constr. Co., 255 N.J. 380 (2023) (“On appeal, we have the discretion to ‘take judicial notice of any matter specified in Rule 201, whether or not judicially noticed by the trial court’…[including] records of the court in which the action is pending. ”).  \(^2\)  See February 2, 2024 Transcript, filed with the Clerk on April 15, 2024 (“1T”).  The trial court did not address (or acknowledge) [...]’s failure to make the fourth settlement payment, its failure to leave the Leased Premises in broom clean condition, or its failure to vacate by October 31, 2023, any one of which would constitute an additional event of default that entitled [...] to present the Consent Judgments for entry even if unauthorized dumping had not also occurred.
[directive] 5.2  Officers shall reevaluate the situation and reassess the need to use force before any second or subsequent firing or discharge or utilization of drive stun mode of the device against the same person.  Any second or subsequent firing or discharge or utilization of drive stun mode of the device must be necessary and justified by the circumstances at that moment.  5.3  An officer shall not direct an electrical charge or current against a person who is restrained by handcuffs unless: (a) Deadly force would be authorized under the Use of Force Policy; and (b) the use of physical or mechanical force is not feasible or would be ineffective.  5.4  Consistent with training, officers may point a CED at a person only when circumstances create a reasonable belief that it may be necessary for the officer to use enhanced mechanical force.  When the officer no longer reasonably believes that enhanced mechanical force may be necessary, the officer shall, as soon as practicable, secure or holster the CED.  5.5  Unholstering, displaying, or pointing a CED shall be considered a display of constructive authority.  5.6  A spark display from a CED shall be considered a display of constructive authority.  A spark display must be reported as a Show of Force on the Attorney General’s Use of Force Reporting Portal.  7
[brief] ” (Db18; 30-31, emphasis in original).  Those statements are neither accurate nor properly framed: in crediting [...]’s testimony about certain transactions, the trial court weighed the evidence, including the accounting records that buttressed [...]’s assertions, and the defense’s response, which the trial court did not find credible.  (36T 33:6-13).  First, in addition to [...]’s testimony, the trial court also had before it [...]’s 44 schedules analyzing the financial records for [...], [...], and the other defendant entities.  (Da6612-6788).  He was the only witness to perform that analysis.  [...] also testified that he conferred with [...] to ascertain whether he authorized many of the transactions in question.  (34T 75:15-23).  Second, for each of the defendants’ misappropriations, the trial court reviewed the underlying records, including bank statements, checks, and other materials to support [...]’s opinion that the defendants misappropriated funds from the [...] and [...] accounts to accounts they controlled.  (23T 9:23 to 29:9).  Third, [...]’s analysis withstood the defense’s extensive cross examination.  Over two days, the defendants challenged [...]’s methodology, his analysis, and argued forcefully that [...] was biased.  (E.g., 22T 122:16 to 124:11).  Cross examination focused heavily on issues of intent and whether [...] knew if certain transactions were authorized.  (22T 26:12 to 28:11; 78:21-24; 80:19-21; 80:13-16).  The trial court credited [...] and rejected the defense position.
[brief] And, while the defense offered some testimony responding to the misappropriation of funds issue, the Court found that, “there’s nothing there.  You know, there was really no meat to most of the explanations. ” (36T 33:6-13).  Moreover, the Court identified conduit accounts, co-mingling, and step transactions in the entity-defendant financial records.  (36T 33:14-16).  Based on these and other findings, the trial court found that the defendants converted funds that rightfully belonged to the Plaintiffs.
[brief] The test for granting severance ... is a rigorous one.  Separate trials are necessary when co-defendants' defenses are antagonistic and mutually exclusive or irreconcilable.  However, if the jury can return a verdict against one or both defendants by believing neither, or believing portions of both, or, indeed, believing both completely, the defenses are not mutually exclusive.  *6  [State v. Brown*, 170 N.J. 138, 160 (2001) (internal quotation marks and citations omitted). ]  In its written decision denying the severance motions, the trial court noted that [...] intended to present a defense that he was not involved, and that [...] lied to protect [...], with whom she was in love.
[brief] In the Resolution for the [...] application, the Board observed on Ja 228a, lines 13-14, that “The primary building with attached pole barn will be large in context of the available developable area. ”  Further, at Ja 231a, par. 3, line 8, the Board concluded, “The variance request will result in substantial development within too small an area. ”  This conclusion affronts the ‘negative criteria’ outlined in N.J.S.A. 40:55D-70(c)(1).  The Board's conclusion on this point is supported by an analysis of evidence contained in the exhibits.  According to Ja 174a, the front width of the lot along the road is 254.4 feet.  With a depth of 100 feet, this provides 25,440 square feet available for development use.  If the balance of the lot is not included in development calculations, a 3,600 square foot building array would occupy more than 14% of the buildable ground, even before considering the impervious driveways.  This exceeds the 10% limit specified in the City’s ordinance (see Ja 217a).  Moreover, Ja165 reveals [...]’s plan included a separate driveway on the east side of the lot to service the proposed pole barn, a fact overlooked by the trial court.  This driveway constitutes a second principal use given its separate access, as noted by the Board’s engineer in his comments on Ja218, par. 6.  The second driveway does not serve the principal use, the home.  As established in Nuckel v. Little Ferry Planning Bd., 208 N.J. 95, 104-105, a driveway providing access to a use other than the primary use on the lot cannot be construed as an accessory use.  It must be considered a second principal use, requiring a variance under section d(1).  This principle is also noted in Cox & Koenig, New Jersey Zoning and Land Use Administration (GANN, 2023) sec. 29-2.3, p. 431.  In contrast, the [...] application did not present this driveway issue.  However, the Board failed to conduct this analysis at the conclusion of the [...] presentation.  Although these documentary items were in evidence before the Board and the trial court, they were unreasonably not considered or factored into the conclusions.  The failure to consider submitted evidential material leads to arbitrary conclusions.  POINT IV
[brief] (Pb12).  Nor do the equities weigh in his favor.  The Board found on the basis of undisputed facts that [...] was provided notice, that information about the Ricci Act was available to him through the Division’s website and publications, and that he had sufficient time to file his Eligibility Registration Form within the statutory period.  Thus, contrary to [...]’s contention, (Pb14), there was ample evidence for the Board to reasonably conclude that he failed to demonstrate good cause, reasonable grounds, and reasonable diligence to warrant consideration of his application well beyond the statutory deadline.  (Pa14).  Finally, [...]’s argument about and reference to a different applicant is misplaced.  (Pb17).  That applicant asserts that he attempted to file his Eligibility Registration Form but was told he was ineligible because he was not currently sick.  (Pb17; Pa129).  But those facts are not in the record before this court.  And that applicant’s assertions are irrelevant to [...]’s appeal as they deal with an entirely different set of circumstances not alleged by [...], so they should be disregarded.  **CONCLUSION**
[brief] During the hearing on the cross-motions for summary judgment, [...] properly recognized that Plaintiff’s argument was considered by the arbitrator, but ultimately rejected:  THE COURT: But there’s no suggestion that the arbitrator did not take your arguments into consideration, right, they just rejected them?  You're not happy with his or her, I don't know if the arbitrator was him or she, but you're not happy with the arbitrator's decision?  [1T8:4-9]  While Plaintiff denied that suggestion, he offered that there was evidence on the record to support his claim.  However, [...] properly recognized that this evidence was weighed and balanced by the arbitrator and Plaintiff’s position was simply not accepted:  [...]: So there's evidence here.  There's no -- there seems to be -- THE COURT: Evidence which the arbitrator considered and looked at before he or she made his decision, their decision.  [...]: That I don't know, but because -- THE COURT: Well, I'm to presume, unless you can show me that there was either -- that there was either corruption, fraud or misconduct or partiality or that the arbitrator exceeded their power or failed to follow the procedures that are set forth in the act or that the umpire committed prejudicial error by erroneously applying law to the issues and facts presented for alternative resolution.  Those are the bases by which this Court can vacate an award under 2A:23A-13(c).  The fact that -- [...]: Right, I'm familiar -- THE COURT: The fact -- [...]: Sorry.  THE COURT:  The fact that you're not happy, it doesn't -- the record that is before me is that all the issues that you have raised were all in front of the arbitrator and that they took them into account and they made a decision.  You may not agree with that decision.  Another arbitrator may have come out with another decision looking at the same material because not everybody looks at everything exactly the same way.  So the question is, did they miss the boat entirely or was there some fraud or was there some partiality?  There has been no suggestion of any of those factors here.  It looks like the procedures were followed.  The arbitrator did not exceed their authority in making the ruling.  All the evidence was before it based on both your and her submission, everything was in front of the arbitrator.  So based on 2A:23A-13(e), there doesn't appear to be any reason for this Court to disturb the arbitration award at this time and I'm not going to.
[brief] ..............................................  25,26,27,29  Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366 (1995)  ............................................................................................................  24 McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546 (1993)  ............................................................................................................. 33,34  Rosenberg ex rel. Rosenberg v. Cahill, 99 N.J. 318 (1985)  ..............................................................................................................  39  Rowe v. Bell & Gossett Co., 239 N.J. 531 (2019)  .............................................................................................................  24 State v. Lyons, 417 N.J. Super. 251(App. Div. 2010) ..................................................................................  24 State v. Steele, 92 N.J. Super. 498 (App. Div. 1966) ..................................................................................  24 Summit Plaza Assocs. v. Kolta, 462 N.J. Super. 401 (App. Div. 2020) ..................................................................................  24 Syndicate 1245 at Lloyd's v. Walnut Advisory Corp., 721 F. Supp. 2d 307 (D.N.J. 2010) ...................................................................................... 37 United Hearts, L.L.C., 407 N.J. Super. 379 (App. Div. 2009) .................................................................................. 34 United States v. Clarke, 445 U.S. 253, 100 S.Ct. 1127, 63 L.Ed.2d 373(1980) ......................................................... 26 Venner v. Allstate, 306 N.J. Super. 106 (App. Div. 1997) ......................................................... 33 Wolosky v. Fredon Twp., 31 N.J. Tax 373 (Tax Ct. 2019) .................................................................. 34 RULES R. 1:4-8 .............................................................................................................. 4 STATUTES N.J.S.A. 2A:53A-27 .......................................................................................... 4,14 N.J.S.A. 40A:12A-1 .......................................................................................... 6 N.J.S.A. 58:10B-16, ....................................................................................... 12,29 N.J.S.A. 58:10-23.11g..................................................................................... 30 N.J.S.A. 2A:15-59.1(b)
[brief] The Trial Court’s Analysis Of The Legal Issues In This Case Was Consistent With Applicable Law**  The *Griepenburg v. Twp. of Ocean* case cited above suggests that an appellate court should also defer to the legal conclusions of a trial judge.  Even if no such deference is given, however, the Trial Court’s Order of final judgment should still be affirmed because [...]’s decision was supported by the record and was consistent with applicable law.