ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] See supra at 8-9, 36-37.  *Second*, the ESI Order imposes unnecessary and significant “expense” on Defendants.  See Rule 4:10-2(g).  The privilege review is expected to cost the [...] and [...] hundreds of thousands of dollars in additional costs, because the parties would need to conduct this labor intensive review not just for the estimated 30,500 responsive documents, but also the approximately 68,000 non-responsive documents for privilege.  Da125-26; T35-37.  The costs are compounded in this case because the parties have already litigated extensively similar matters in cases across the country, and this action involves many of the same search terms for many of the same custodians.  T28:20-29:21.  While the parties might have benefited from the previous relevancy reviews conducted in those cases—a “more convenient, less burdensome, and less expensive” source for discovery, Rule 4:10-2(g)—now they must conduct additional privilege reviews for non-responsive documents, T28:20-29:21.  B.
[brief] The Smart Court rejected the State’s argument that the Witt test should look at whether the police had probable cause “well in advance of the search,” holding that this would be a departure from Witt and that “there is no justification, let alone special justification, to part ways with Witt. ”  Id. at 174.  Thus, our Court has made clear that the Smart standard for evaluating spontaneity and unforeseeability does not places an undue burden on the investigatory demands of law enforcement or place officers in danger. \(^3\)  The State’s misplaced policy concerns cannot avoid the conclusion that this case presents a run-of-the-mill-application of Smart under which suppression was required.  In this case, like in Smart, “the circumstances giving rise to probable cause were anything but spontaneous” because they “unfolded over almost two hours” invested by the police “in investigating, surveilling, and utilizing five officers. ”  253 N.J. at 172-73.  (2T 19-15 to 20-19)  The lack of spontaneity and unforseeability compels the inevitable conclusion that this search was not justified by the automobile exception to the warrant requirement.  The motion court correctly order the evidence suppressed, and this Court should accordingly affirm the motion court’s order suppressing the evidence.
[brief] THE TRIAL COURT’S OCTOBER 6, 2023 ORDER DENYING PLAINTIFF’S MOTION FOR A NEW TRIAL SHOULD BE AFFIRMED BECAUSE THERE IS NO CLEAR AND CONVINCING EVIDENCE THAT THERE WAS A MISCARRIAGE OF JUSTICE UNDER THE LAW.  (Pa665-666; Pa1716).  The standards for granting a motion for judgment notwithstanding the verdict and a motion for a new trial are similar.  Such motions should be granted only when it clearly and convincingly appears that there was a plain miscarriage of justice under the law.  “The fact finder’s determination is entitled to very considerable respect [and] .... should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination. ” Barber, 406 N.J. Super. at 51-52.  In reviewing a jury’s verdict on a motion for new trial, “a judge must view the evidence in the light most favorable to the party opposing the motion for relief. ”  Kozma v. Starbucks Coffee Co., 412 N.J. Super. 319, 325 (App. Div. 2010) (citing Caldwell v. Haynes, 136 N.J. 422, 432 (1994)).  “[A] jury verdict, from the weight of the evidence standpoint, is impregnable unless so distorted and wrong, in the objective and articulated view of a judge, as to manifest with the utmost certainty a plain miscarriage of justice. ”  Kozma at 324 (quoting Carrino v. Novotny, 78 N.J. 355, 360 (1979)(emphasis added)); see also, Doe v. Arts, 360 N.J. Super. 492, 502-03 (App. Div. 2003).  Moreover, jury verdicts should be set aside “only with reluctance and then only in the cases of clear injustice. ”  Crego v. Carp, 295 N.J. Super. 565, 577 (App. Div. 1996), cert. denied, 149 N.J. 34 (1997) (citing Goss v. Am. Cyanamid Co., 278 N.J. Super. 227, 239 (App. Div. 1994)).  Plaintiff cites Dolson v. Anastasia, 55 N.J. 2, 6, 258 A.2d 706, 708 (1969) implying that the “feel of the case” may supplant that of the trial judge.  This is not the case.  Dolson’s “feel of the case” is applicable when the trial judge rules on a motion for a new trial, where he or she takes into account, not only tangible factors relative to the proofs as shown by the record, but also considers appropriate matters of credibility (generally within the jury’s domain)—so-called ‘demeanor evidence,’ and the intangible ‘feel of the case’ which he or she has gained by presiding over the trial.  Dolson at 6 (emphasis added).  The trial judge here made that determination and, having the benefit of “the feel of the case,” denied Plaintiff’s motion for a new trial.  Defendant will address the alleged facts that Plaintiff argues belie the jury’s findings to the point that its verdict constituted a miscarriage of justice.
[brief] For all of the reasons raised above, the trial Court’s findings and its entry of judgment of possession against Defendant must be vacated.  Respectfully submitted, Dated: July 25, 2024  By: [...] (ID 441392023) and, By: [...] (ID 010992005)  [...]  Attorneys for Defendant-Appellant  [...] PLAINTIFF/RESPONDENT [...]  RESPONSE TO DEFENDANT/APPELLANT
[brief] (Cont'd.)  a.  The reliability of eyewitness identifications, especially the role of familiarity, was the critical jury question, but jurors heard no evidence that would assist them in evaluating it .................................................................25  b.  [...] established a prima facie case that the failure to consult, obtain, and use an expert witness fell below the level of reasonable behavior expected of competent counsel, and this deficient performance prejudiced his defense ..............................................................................28  2.  Trial counsel’s failure to investigate and enable presentation of Facebook posts and other evidence left him unable to cement [...]’s alibi ..................................................................................................................35  3.  Trial counsel’s inexplicable failure to demand production of the hard drive (or take any other action) after learning that [...] had not, in fact, “wiped” it, deprived [...] of the opportunity to fully present his alibi and meaningfully counter the State’s case ...........................................................................................................39  4.  [...]’s policies regarding preservation, production, and destruction of evidence plainly demonstrate that the [...] blatantly violated its policies in this case; trial counsel’s failure to obtain them deprived the defense of information essential to establishing [...]’s bad faith .................................................................43  5.  Trial counsel’s repeated prior representation of the victim and his brother warrants an evidentiary hearing on the conflict of interest .........................................................................................46  TABLE OF CONTENTS  (Cont'd.)  6.  Trial counsel overplayed his hand in opening by promising to prove [...]’s innocence, inviting the State’s damaging remarks on his failure to provide exonerating evidence.  ..............................................49  7.  Trial counsel was ineffective for failing to investigate and present testimony of property manager [...], an exculpatory witness.  ..................51  8.  Trial counsel was ineffective in failing to object to the prosecutor’s testimony in summation regarding ambidexterity, and in failing to present evidence of [...]’s left-handedness.............................................51  9.  Counsel’s errors cumulatively denied [...] effective representation.  .................................................................54  C.  Conclusion.  .........................................................................................54  POINT II
[brief] “[W]histle-blowing activity” is not simply any type of complaint.  Internal workplace disputes and complaints about discourteous supervisors are not protected under CEPA.  See Klein, 377 N.J. Super. at 42 (“The whistle-blower legislation is not intended to shield a constant complainer who simply disagrees with the manner in which the [employer] is operating . . . its . . . [business], provided the operation is in accordance with lawful and ethical mandates. ”); see also Young, 275 N.J. Super. at 237 (“[CEPA] . . . was not intended to provide a remedy for wrongful discharge for employees who simply disagree with an employer’s decision, where that decision is entirely lawful.
[brief] [...] arrived at its proposed EGP for the Bayonne 3 project (which the Arbitrator adopted without further explanation) of $2,670,000 using an incorrect oversimplified formula, applying the 3% contractor’s fee to the total contract sum of $89,000,000 [Da400, Bayonne Contract §§ 5.1.1, 5.2.1] and demanding to be paid 65% of that amount.  \[ \$89,000,000 \times 3\% = \$2,670,000 \times 65\% = \$1,735,500 \]  However, the Bayonne 3 Project’s Agreement states that the contractor’s fee is $2,502,246, or 3% of the cost of work, (which does not include insurance, CCIP, subcontractor default insurance, or the contingency).  Da435 (stating that the fee for the Bayonne 3 project is $2,502,246).  Sixty-five percent of that EGP is $1,626,460.  $83,408,188 \times 3\% = $2,502,246 \times 65\% = $1,626,459.90  Therefore, the Award for unpaid EGP should be reduced by $109,040.  $1,735,500 - $1,626,459.90 = $109,040.10  Second, the Bayonne 3 Project is ongoing, with an expected final completion date in August 2024.  Da236; Da245-46.  Pursuant to the PTA, [...] was to pay [...] the EGP in quarterly installments based on the percent complete of the project.  Da60.  As of the date of the Award (as amended), the Bayonne 3 Project was 82.76% complete.  Da245-46.  Therefore, as of the date of the Award, [...] was only liable for 82.76% of the EGP payments, and the Arbitrator disregarded this clear contractual provision in awarding [...] the full EGP for Bayonne 3.  The amount remaining on the unpaid Bayonne 3 EGP is $299,200.20 based on the current Award ($1,735,500 - $1,436,299.80 = $299,200.20).  Da245-46.  The amount remaining on the unpaid Bayonne 3 EGP is $280,401.69 based on the corrected EGP ($1,626,459.90 - $1,346,058.21 = $280,401.69).  This amount was not due and owing at the time of the Award.
[brief] Defendant presents *Berent* as the court’s walk-back from its prior decision in *Taylor v. Butler*, 142 S.W.3d 277, 284–87 (Tenn.2004), *cert. denied*, 543 U.S. 1147 (2005).  That is not the case at all.  *Berent* was another case dealing with a lender carve-out for foreclosure remedies.  In *Berent*, the commercial drafter contended that the holding in *Taylor* was no longer the “majority” position and argued for it to be overruled.  When the court chided the secured lender’s efforts to blur issues -- writing that “any attempt to synthesize the cases neatly into a ‘majority’ and a ‘minority’ view must necessarily founder” -- it was addressing the lender’s advocacy which – like here – involved blurring cases allowing carve-outs for foreclosure-type remedies with other provisions.
[brief] [...] WAS DEPRIVED OF A FAIR TRIAL BECAUSE THE INTERROGATION VIDEO ERRONEOUSLY INCLUDED DETECTIVE EGAN’S COMMENTARY ON MASON’S CREDIBILITY, GUILT, AND AN UNRELATED ARREST.  As [...] argued in his opening brief, the minimally redacted interrogation video included several types of inadmissible evidence that biased the jury’s ability to reach a fair verdict.  First, the video featured Egan’s lengthy commentary on [...]’s veracity and guilt.  Second, the video contained Egan’s references to [...]’s unrelated arrest, the admission of which the State concedes was error.  (Pb 27)  The erroneous admission of this commentary created the danger that the jury’s convictions were influenced by an officer’s belief that [...] was guilty and a liar, and the perception that he had a propensity to commit crimes.  Because this error is clearly capable of producing an unjust result, and because the State’s arguments in opposition are unpersuasive, reversal is required.
[brief] If we assume Plaintiffs had disclosed the OAE Proceedings and, in accordance with their Underwriting Policy, Defendants had explored the issue further with Plaintiffs prior to any decision on the Policy Applications [Pa442, ¶ 5], it is implausible that the trial court could conclude on summary judgment that Defendants would have denied the Policy Applications.  In doing so, the trial court necessarily ignored [...]’s own admission that: [...] will consider issuing a policy notwithstanding a pending disciplinary proceeding if the nature of the charges or other circumstances indicated that the proceeding involves a comparatively less serious alleged ethical violation….  [Pa445, ¶ 19]  The matters addressed in the OAE Proceedings did not involve any Legal Services and Plaintiffs had no record of prior disciplinary issues—including no suspensions.  We also know that, upon the improper rescission of the Policies, Plaintiffs were able to instantly obtain a replacement policy despite disclosing the OAE Proceedings—further calling into question the credibility of [...]’s suggestion that Plaintiffs were uninsurable based on the OAE Proceedings.  [Pa573]  There is nothing to suggest that [...]’s claim of an “automatic” denial would stand scrutiny.  Rather, viewing the evidence in the light most favorable to Plaintiffs, a reasonable trier of fact could conclude that Defendants would have issued the Policies to Plaintiffs even if the OAE Proceedings had been disclosed.
[brief] *Foster v. Medela*, supra.  "*It is clear that the dominance must be of the mind, and the dependence must be upon the mind rather than upon the hands and feet of the donee.*"  *Chandler v. Hardgrove*, 124 N.J. Eq. 516 (Ch. 1938).  It exists when the circumstances make it certain that the parties do not deal on equal terms, but on the one side there is an overmastering influence, or, on the other, weakness, dependence or trust, justifiably reposed.
[brief] [...] Amended Class Action Complaint alleges that Defendants [...] and [...] (“[...]”) created and engaged in a scheme to sell fraudulent debt adjustment services to New Jersey consumers.  See Am. Compl. ¶ 1 (Pa1).  Prior to the filing of the Complaint, [...] (now defunct) unlawfully sold debt adjustment services to New Jersey consumers, offering to consolidate and negotiate debts in exchange for monthly fees.  Am. Compl. ¶¶ 14-16 (Pa3-Pa4).  However, [...] never obtained the necessary licensure, pursuant to the New Jersey Debt Adjustment and Credit Counseling Act (“DACCA”), N. J.S.A. 17:16G-1, *et seq.*, to lawfully perform debt adjustment services in New Jersey.  Am. Compl. ¶ 1 (Pa1); *see also* N.J.S.A. 17:16G-2.  Additionally, [...] generated profits by collecting fees from consumers, often without providing any credit assistance or debt settlement and/or consolidation services and/or collecting fees that exceed the amounts permitted by the DACCA.  Am. Compl. ¶ 14 (Pa3); *see also* N.J.S.A. 17:16G-6.  [...], a Nevada-based payment processing company, is in the business of providing payment processing services for unlicensed debt adjusters, like [...], by withdrawing funds from consumers’ personal accounts, holding the funds in escrow, then later disbursing the funds to [...] fraudulently, retaining a fee for the service.  Am. Compl. ¶¶ 15, 16 (Pa4); *see also* Client Services Agreement § 4 (Pa28).  Prior to the filing of the Complaint, [...] executed a Client Services Agreement (“CSA”) with [...] (Pa27) and a separate Electronic Funds Transfer Authorization (“EFTA”) with [...] (Pa24).  [...] made payments pursuant to the CSA and EFTA until May of 2018, when she had paid approximately $7,585.00 and received no benefits or services from [...] or [...].  Am. Compl. ¶ 29 (Pa6).  In fact, [...] continued to receive collection letters and court documents from accounts that were covered under the CSA and EFTA.  *Id.*  Accordingly, the Amended Class Action Complaint alleges violations of the DACCA, the New Jersey Consumer Fraud Act (“CFA”), N.J.S.A. 56:8-1, et seq., the New Jersey Truth in Consumer Contract, Warranty, and Notice Act (“TCCWNA”), N.J.S.A. 56:12-1, New Jersey’s statutory prohibition against the unauthorized practice of law codified at N.J.S.A. 2C:21-22, the New Jersey Racketeer Influenced and Corrupt Organizations Act (“NJRICO”), N.J.S.A. 2C:41-1, et seq., and common law.
[directive] (See attached instructions for example).  ____________________________________________________________________________________________________  ____________________________________________________________________________________________________ ____________________________________________________________________________________________________ □ □  9.  a.  Did you explain the basic photo array procedures to the witness?  Y N □ □  b.  Did you tell the witness that the perpetrator may or may not be in the array?  Y N □ □  c.  Did you tell the witness that he/she should not feel compelled to make an identification?  Y N □ □  10.
[brief] Defendant [...] relies on the procedural history and statement of facts set forth in his opening brief.  (Db 1-8)¹  LEGAL ARGUMENT  Defendant relies on the arguments in his opening brief and the following.  POINT I  THE POLICE INTERROGATION OF DEFENDANT  VIOLATED NUMEROUS WELL-ESTABLISHED PROHIBITIONS AGAINST AFFIRMATIVE POLICE DECEPTION, PSYCHOLOGICAL COERCION, AND THREATS.  (Response to State’s Point I)  For the reasons stated in [...]’s opening brief, he maintains that the motion court erroneously admitted his statement to police because (1) he was in custody and subject to interrogation, so the Miranda² protections applied; (2) the police repeatedly ignored his invocations of his right to remain silent; and (3) his Miranda waiver and statement as a whole were involuntary due to overwhelming police coercion.  This reply brief responds to several claims by the State that are not supported by the factual record or the law.  As an initial matter, just as the State did not contest custody below, on ¹ “Db” refers to defendant’s opening brief.  “Pb” refers to the State’s brief.  All other abbreviations are set forth in defendant’s opening brief.  (See Db 1 n.2) ² Miranda v. Arizona, 384 U.S. 436 (1966).
[brief] Evidence on the record is insufficient to support Defendants motion.  There is no proof of medical records which demonstrates to the Court that an injury was inflicted.  Defendants were aware of evidence at the time of claim denial which proves that the extent of the injuries was improbable.  (2T9).  The “actual” injuries sustained, if any, were not an inherently probable consequence of [...]’ alleged conduct.  There were no actual injuries (only allegations).  The defendants have a duty to defend and reimburse given the allegations were ambiguous and it was impossible to determine the specific injury any potential claimant suffered. (2T7).
[brief] In the present case, the Board’s refusal to accept [...]’ settlement agreement and recognize the stipulated salary increases violated express legislative policies.  The governing stature herein is N.J.S.A. 18A:66-2(d)(1).  It provides that:  “Compensation means the structural salary, for services as a teacher as defined in this article, which is in accordance with established salary policies of the member’s employer for all employees in the same position but shall not include individual salary adjustments which are granted primarily in anticipation of the member’s retirement.  . .”  (emphasis added).  The Board’s implementing regulation in N.J.A.C. 17:3-4.1(a)(ii) which defines forms of extra compensation as, among other things, “pay for extra work, duty or service beyond the normal workday. ”  The foregoing statute and regulations were construed in the case of William Coyle vs. Board of Trustees of the Teachers’ Pension and Annuity Fund, unpublished decision of the Appellate Division (2015) (Aa57-64).
[brief] Increase in Density  The Court below noted in its opinion (Pa 128) that the Plaintiff has commenced 8 lawsuits against the [...]\(^6\).  Plaintiff is not sure of the number (it depends on how you count them) but Plaintiff believes it only lost one of those suits.  In that lawsuit, Plaintiff sued the Borough to increase the density of the residential development on the site.  With the standard 20% low income housing set-aside, the 350 unit plan previously approved only produced 70 (350 residential units \( \times \) 20\% = 70) of the 158 low income housing units the [...] needed to meet its Mt. Laurel obligation.
[brief] See N.J.S.A. 13:20-10b(1)-(9).  Notably, protection of air quality and climate change considerations are not specifically identified as goals of the Highlands Act or RMP.  Moreover, as directed by the Legislature pursuant to N.J.S.A. 13:20-32, [...] promulgated regulations and developed substantive standards related to Highlands resource areas identified under the Highlands Act.
[brief] [...]’s Tender to Its Direct Liability Insurance Carriers  After the Hood Lawsuit was filed, [...]’s attorneys, [...], forwarded the Complaint to [...] on March 21, 2017.  (Pa2536.)  In turn, that day, [...] sent the Complaint to its insurance broker, [...]  (“[...]”)¹¹.  (Pa2536.)  [...] also tendered its defense to [...] (its primary CGL carrier), which confirmed on March 23, 2017, that it was handling the claim against [...].  (Pa2538-2539.)  On March 24, 2017, given the potential that the Hood Lawsuit might exceed the $1M limit of the [...] Policy, [...] requested that [...]’s excess carrier be placed on notice.  (Pa2542.)  Accordingly, notice was provided that day on behalf of [...] to [...] ([...]’s excess carrier).  (Pa2544-2549.)  [...] and [...] each acknowledged receipt of Hood’s claim by communications to [...] dated March 29, 2017.  (Pa2554 and Pa2557.)  ¹¹ [...] took over from [...] the role as [...]’s insurance broker.  Thereafter, [...], the primary CGL carrier, provided [...] with a defense in the Hood Lawsuit without reservation, other than reserving on the uninsurability of punitive damages.  (Pa2551-2552.)  [...], at no point, reserved its rights to disclaim coverage on any specific basis.  Neither reserved their rights to disclaim coverage for the Hood Lawsuit based on their respective Policies’ Wrap-Up Exclusions.  (Pa2559-2561.)  IV.
[brief] See, e.g., In re Kelly, 120 N.J. at 684 (“An executor is required to account for each item of the estate that comes into his hands. ”); see also In re Wilson, 81 N.J. 451, 454 (1979) (explaining that “money of the client or collected for the client or other trust property coming into the possession of the lawyer should be reported and accounted for promptly[.]”).
[brief] Equalization Aid.  Once the adequacy budget and LFS are calculated, the Department computes the allocation of “equalization aid” for each district.  (Aa7; Aa1104; Aa1255; Aa1871).  Equalization aid is an aid category that the State provides to each district for general fund expenses to support the district in meeting the CCCS.  N.J.S.A. 18A:7F-53; (Aa7).  It is calculated by subtracting the district’s LFS from its adequacy budget, provided that equalization aid shall not be less than zero.  Ibid.; (Aa7).  “In short, equalization aid is the difference between a district’s LFS and its Adequacy Budget. ”  Abbott XX, 199 N.J. at 155.  Therefore, equalization aid is calculated based on a district’s ability to contribute toward its adequacy budget through its LFS.  N.J.S.A. 18A:7F-53.