ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] **POINT ONE:**  **SUMMARY OF STATUTES, STANDARD OF REVIEW, AND CREDIBILITY** (Da3; Da5; 5T4:9-5T5:4; 2T:85:13-2T88:12)  The relevant portion of the statute reads as follows:  4:19-23  Dog declared potentially dangerous; conditions.  a.  The Municipal Court shall declare a dog to be potentially dangerous if it finds by clear and convincing evidence that the dog: (1) caused bodily injury to a person during an unprovoked attack, and poses a serious threat of serious bodily injury or death to a person; (2) caused serious bodily injury to another domestic animal or killed another domestic animal, and (a) poses a serious threat of serious bodily injury or death to a person, or (b) poses a serious threat of death to another domestic animal; or (3) (Deleted by amendment, P.L.2019, c.82).  b.  A dog shall not be declared potentially dangerous for: (1) causing bodily injury to a person if the dog was provoked; (2) causing serious bodily injury to, or killing, a domestic animal if the domestic animal was the aggressor; ...  (c)  For the purposes of paragraph (1) of this subsection, the municipality shall bear the burden of proof to demonstrate that the dog was not provoked.  The word “serious” is underlined above to highlight that it was added to the statute in May 2019.  See P.L. 2019, Ch. 82. Da182.  Both judges below omitted the word “serious”, calling into question whether either court below applied the correct standard.  Bodily injury, is defined as follows:  c.  As used in this section, "bodily injury" means bodily injury as defined in subsection a. of N.J.S.2C:11-1; and "serious bodily injury" means serious bodily injury as defined in subsection b. of N.J.S.2C:11-1.  L.1989, c.307, s.7; amended 1994, c.187, s.4; 2002, c.24; 2019, c.82, s.2.  N.J.S.A. 2C:11-2 defines serious bodily injury as injury that “creates a substantial risk of death, or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. ”  Defendant was also found guilty of violating Ordinance 6-5:  Running at Large:  No person keeping, owning, or harboring a dog shall permit the dog to be upon the private premises of another without his permission, or upon any street or other public place in the Township unless such dog is securely confined upon an adequate leash not more than 6 feet long and under the control of a responsible person.  A dog will not be impounded for killing a domestic animal, but an ACO has discretion whether to impound if a human is injured.  N.J.S.A. 4:19-19 provides in relevant part that an ACO: shall seize and impound a dog when the officer has reasonable cause to believe that the dog: a. attacked a person and caused death or serious bodily injury as defined in N.J.S.2C:11-1(b) to that person; b. caused bodily injury as defined in N.J.S.2C:11-1(a) to a person during an unprovoked attack and poses a serious threat of harm to persons or domestic animals; . . .
[brief] When questioned about the parking lot area, he made it clear that he would act if the Defendant attempted any changes to the parking lot:  Q.  Okay.  And certainly you’ve never been – you’ve never participated in that?  In any – any repairs or maintenance to the parking lot in the strip?  A.  If they started to repair something I would tell them that it is my property.  But they did not start any repairs on the parking lot.  Q.  In strip?  A.  Yes, in the strip.  2T21:3-10.  Based on the foregoing, Defendant’s use of the Strip has not been exclusive.
[brief] It is also apparent that Probation lost track of court Orders, lost track of charges it placed on the account record and could no longer explain its erroneous postings on the account record.  It is further clear that after a year of effort to correct the account record, Probation’s “accounting” of 3/17/2022 is incomplete, erroneous and fatally flawed.  Account errors starting “day one”, i.e. Oct. 1, 1998, have yet to be corrected.  2.  It is further apparent that the trial court has been reluctant for 25 years to challenge Probation to correct its account errors and to properly enforce its court Orders against Probation.  It is also clear that the trial court failed to meet its continuing obligation to serve as finder of fact and to ensure an accurate account record.  Probation has thus remain unaccountable for its erroneous account record for decades.
[brief] ”  Henry, 81 N.J. at 579–80 (citing Campbell, 39 N.J. at 562).  In determining whether agency action is arbitrary, capricious, or unreasonable, appellate review is limited to determining: (1) whether the agency’s action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.
[brief] Defendant annexed the June 6, 2023 order as Exhibit 4 (Pa1081) to the certification of her motion.  The OTSC was converted to a motion returnable on January 12, 2024.  Defendant’s subsequent OTSC filed on January 2, 2024 seeking the court to take custody of plaintiff’s passport was also converted to a motion by a January 3, 2024 order that noted: “Defendant provides no basis for her belief plaintiff is about to flee the country”.  (Pa1148)  On the designated return date of January 12, 2024 trial court called off the scheduled hearing and adjudicated the motions on papers.
[brief] JUDGMENTS, RULINGS, AND ORDERS BEING APPEALED  Judgment of Conviction…………………………………………………………Da 7-10 INDEX TO APPENDIX  [...] ………………………………  Da 1-3 Verdict Sheet………………………………………………………………………..  Da 4-6 Judgment of Conviction…………………………………………………………Da 7-10 Notice of Appeal ………………………………………………………………………Da 11-15  Miranda Warning and Waiver Certificate……………………………………Da 16  Transcript of Defendant’s Statement to Police ……………………………Da 17-55  Letters Allegedly Written to [...] …………………………………Da 57-58 TRANSCRIPT OF CITATIONS “1T” – January 7, 2022, status conference (not cited) “2T” – January 18, 2022, pretrial proceeding (not cited) “3T” – January 20, 2022, hearing on scheduling (not cited) “4T” – January 24, 2022, hearing on discovery “5T” – January 25, 2022, scheduling conference “6T” – January 26, 2022, discovery ruling “7T” – January 31, 2022, Miranda hearing and trial “8T” – February 2, 2022, trial “9T” – February 3, 2022, trial “10T” – February 4, 2022, trial (Volume I) “11T” – February 4, 2022, trial (Volume II) “12T” – February 8, 2022, trial “13T” – February 9, 2022, trial “14T” – February 10, 2022, trial “15T” – February 11, 2022, jury charge conference “16T” – February 14, 2022, summations and jury charges “17T” – February 15, 2022, verdict “18T” – May 10, 2022, motions and sentencing | CASES | PAGE NOS. | |----------------------------------------------------------------------|-----------| | Berger v. United States, 295 U.S. 78 (1935) | 33 | | Johnson v. Coombe, 271 A.D.2d 780 (N.Y. App. Div. 2000) | 31 | | Pettus v. U.S., 37 A.3d 213, (D.C. 2012) | 31 | | State v. Artis, 57 N.J. 24 (1970) | 41, 42 | | State v. Begyn, 34 N.J. 35 (1961) | 42 | | State v. Carroll, 256 N.J. Super. 575 (App. Div. 1992) | 27, 28, 29| | State v. Gardner, 51 N.J. 444 (1968) | 42 | | State v. Marks, 201 N.J. Super. 514 (App. Div. 1985) | 33 | | State v. Mazowski, 337 N.
[brief] see R. 3:22-12(a)(2)(C).  As advanced in Point IA, The PCR Court could not competently decide the timeliness of defendant’s PCR petition without knowing the substantive issues because the substantive issues necessarily frame the procedural ones.  For all these reasons, this Court cannot rule upon procedural issues without knowing all the substantive issues, and thus dismissing the petition with prejudice without reviewing those submissions and hearing legal argument is clearly premature.
[brief] 2.  The evidence did not clearly indicate that defendant was reasonably or adequately provoked.  Evidence of passion/provocation also did not jump off the page.  The only provocation defendant points to come from her self-serving statements that she believed [...] was trying to poison her and that a spirit controlled her.  The record belies the first claim, and the second is at most an argument for diminished capacity, which defendant did not pursue.  Thus, the record did not clearly indicate a need for a passion/provocation manslaughter instruction.
[brief] The misstatements of fact and falsehoods by Appellant’s counsel in response to our Cross-Appeal are extensive.  Appellant’s counsel states the matter was “preliminarily settled” which is false.  Once this matter was remanded back to the Trial Court to determine the amount of common area insurance due from the Defendant/Respondent, the parties promptly settled that final issue for the amount of $1,096.00.  Not only was the sum accepted by all parties, but Appellant’s counsel approved the Release, notified the Court in writing the matter was resolved and then filed a Stipulation of Dismissal with Prejudice.  The fact that Appellant reneged on his agreement to sign the Release is irrelevant and in no way changes the fact this case was concluded or that res judicata and/or the Entire Controversy Doctrine apply.  Further, Appellant’s argument regarding future claims not being ripe again ignores the doctrines of res judicata the Entire Controversy Doctrine since the only relationship between these parties was that of landlord and tenant.  The Trial Court extensively questioned Appellant’s counsel in this regard and it was admitted there is no other relationship or viable cause of action that could arise between these  Finally, Appellant never acknowledges the purpose and intent of N.J.S.A 2A:16-51. et seq.  (Declaratory Judgment) which is to prevent the exact arguments now being made by Appellant.  That is, that the Court has the authority to bar the filing of future actions by Appellant and stop the filing of claims which have no merit and the abuse of the judicial process, which is what is occurring in this matter.  **CONCLUSION**
[brief] Luchejko v. Hoboken, 207 NJ 191, 210 (2011).  It is also clear that where a property owner removes snow, they will be liable for a pedestrian’s injury if they create a hazard that does not exist as a result of “natural forces. ”  Id. At 201.  We know in the case presently being considered by the court, from the testimony and expert opinion outlined above, no new “natural forces” occurred between the attempt by the defendant to clear snow and the plaintiff’s fall.  There was no new snow or other precipitation, and there was no freeze/thaw cycle.  We submit that the respondent/defendant created a hazardous condition.  Our Model Jury Charges make clear that where a hazard is created or made more hazardous by a residential property owner, the residential property owner will be liable “where … the owner attempts to make repairs or correct some defect therein for which she/she is not responsible, he/she becomes responsible if he/she makes the repairs negligently and thereby causes the sidewalk, after the repairs, to be more dangerous than before or if he/she causes a new hazard from the old.
[brief] Cox & Koenig, New Jersey Zoning and Land Use Administration, (GANN 2024), at §23.10(b).  Here, the proposed use is expressly permitted and entirely consistent with the planning objectives that the [...] expressed in Resolution 22-112, including "reducing existing commercial vacancy rate[s] and abandoned commercial space...[at and around the Property].  (Aa246).  The [...] and the City both agreed that a retail cannabis dispensary would be a permitted use as part of that redevelopment initiative.  Thus, the [...]’s decision not only runs contrary to that stated intent – but also effectively prevents the Property from being used for any commercial purpose.
[brief] The lower Court here also found that because the plan amendment did not “add a new permitted use . . . to the underlying zone,” the change did not warrant a spot zoning assessment.  However, a change in density can, this Court ruled in Gallo, trigger a spot zoning analysis.  See also East Mill Associates v. --- 3  Appellant certifies that it is aware of no unreported decision contrary to this Court’s ruling in St. Paul’s Missionary or Agazzi.  [...], 241 N.J. Super. 403 (App. Div. 1990) (reverse spot zoning).  A change in a height limitation may also trigger a spot zoning analysis.  See e.g. Agazzi v. Governing Body of the Borough of Red Bank, No. A-4199-13T4, 2016 N.J. Super. Unpub. LEXIS 65, at *20 (App. Div. Jan. 13, 2016).  (Pa1001 to Pa1007).  Therefore, Plaintiff was entitled to advance a spot zoning argument.  B.
[brief] Appellants’ position would undermine New Jersey’s salutary public policy of encouraging Kd-12 regionalization, as well as educational and fiscal improvement.  More importantly, it would leave municipalities such as [...] beholden to the districts that they have joined and powerless to control their own destiny with regard to decisions concerning public education.  The Commissioner’s decision, relying on the plain statutory language and the wider statutory scheme, wisely avoided that fundamentally unfair and contradictory result.
[brief] [See Pa210-211; Pa212-213; Pa266-267; Pa403-410; Pa438-442].  But at oral argument on July 14, 2023, they began to suggest to the Second Motion Judge that [...]’s opinion -- that the applicable standard of care required one of them, or both of them, to act more promptly -- was not realistic because of bald excuses they were offering.  [...]’s counsel asserted that she was not bedside at 9:48 p.m.; first learned of the deceleration at 9:53 p.m.; and then placed a call to [...] – at 9:58 p.m.  and they spoke for five minutes!  None of these “facts" were recited in the Rule 4:46-2 statement submitted on her behalf.  There are good reasons why the [...] did not argue that [...] met the standard of care, at least for purposes of this motion.
[brief] As the Missouri Court of Appeals framed it in Frank:  As noted by the Manning court, Tenant was placed in a better position by the provision’s inclusion in the lease.  Had this provision not been included, Tenant unquestionably would have been responsible for paying the final four months’ rent.  Essentially, by asking us to declare the provision an unenforceable penalty, Tenant now asks us to reward it for being in breach of the lease by allowing it retain the benefit of the provision despite the fact that it is no longer entitled to claim such benefit.  We find Tenant’s position in this regard to be patently unfair to Landlord.  The clause at issue was an agreed upon incentive for Tenant to promptly pay its rent and was not an attempt to exact a penalty.  [4 S.W.3d at 606 (emphases added). ]  Appellants’ remaining arguments do little to overcome the trial court’s reasoned finding that the Concession Recovery Provision is not a penalty.  Appellants inexplicably argue that the trial court was “fundamentally incorrect” in finding the [...] provided the Concessions to Appellants in exchange for their promises to make full and timely payments.  (Db12).  That assertion is belied by the plain text of the Lease Rider and Concession Recovery Provision contained therein.  The Lease Rider makes clear that Appellants were entitled to the Concessions so long as they fulfilled their obligations under the Lease.  (Da44).  The fact that Appellants were already obligated under the Lease to abide by its terms is irrelevant; they agreed in the Lease Rider that, as a condition for receiving the Concessions, they would make full and timely payments under the Lease.  The Concession Recovery Provision is also not a disguised penalty.  While this is a new theory raised by Appellants for the first time on appeal, it is easily disposed of because the Concession Recovery Provision was not even remotely disguised in the Lease Rider.
[brief] POINT II  THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AND DISMISSING THE COMPLAINT (Raised below; Pa1; T25-8-16)  It is well settled law that summary judgment is an extraordinary remedy which essentially denies a litigant’s right to a plenary trial on the grounds that there exists no genuine issue of material fact to be resolved at trial.  *Judson v. Peoples Bank & Trust Company of Westfield*, 17 N.J. 67 (1954).  Such a judgment is to be granted with extreme caution and the moving papers and pleadings must be viewed in a light most favorable to the party opposing the motion, all doubts being resolved against the movant.  *Shadel v. Shell Oil Company*, 195 N.J. Super. 311 (App. Div. 1984); *Baer v. Sorbello*, 177 N.J. Super. 182 (App. Div. 1981); *Boyer v. Anchor Disposal and Sunshiner Maintenance*, 135 N.J. 86 (1994).  This is a universally accepted principle.  The burden is always on the moving party, and where the movant does not make this initial showing, and thus does not demonstrate the propriety of summary judgment, the motion will be denied.  *United States Use of Pneumatic & Electric Equipment Company v. Continental Insurance Company*, 44 F.R.D. 354 (D.C. Pa. 1968).  The trial court's function is one of examination of the facts and not a trial on the facts.  It is a fundamental maxim that on a motion for summary judgment, the trial court cannot try issues of fact; it can only determine whether there are issues to be tried.  *Bilotti v. Accurate Forming Company*, 39 N.J. 184 (1963); *Manetas v. International Petroleum Carriers, Inc.* 541 F.2d 408 (C.A. N.J. 1976).  The party opposing the motion should be given the benefit of all inferences reasonably deducible from the evidence.  *Nolan v. Otis Elevator Company*, 197 N.J. Super. 468 (App. Div. 1984).  In other words, doubts as to the existence or non-existence of a triable issue of fact are resolved against the moving party, and a motion for summary judgment must therefore fail.
[directive] These Guidelines shall apply to all Brimage-eligible cases (i.e., all cases arising under Chapter 35 of Title 2C that involve a mandatory term of imprisonment and parole ineligibility waivable pursuant to N.J.S.A. 2C:35-12) committed on or after September 15, 2004.  These Guidelines supersede all pre- existing Attorney General Guidelines for implementing N.J.S.A. 2C:35-12, provided, however, that the original Brimage Guidelines shall remain in full force and effect and shall be used to determine the appropriate plea offer in all Brimage- eligible cases where the offense was committed prior to September 15, 2004.  Except as otherwise expressly authorized by this Section, offenses committed prior to the effective date of these revised Guidelines shall not be subject to the provisions of these Guidelines and shall not be eligible, for example, for a standardized plea offer pursuant to Section 6.
[brief] He testified that neither had sustained “significant” damage to the front end or windshield, and that the airbag of neither had been deployed.  (4T 211-5 to 212-9).  [...] also testified that the silver car had blood in the front passenger area, and “some loose marijuana” was in the back seat.  (4T 212-11 to 213-5).  He also testified that a tire iron was on the driver’s seat of the Impala (4T 213-5 to 6); however, after being shown a photograph, he testified that it depicted the tire iron on the passenger seat.  (4T 241-1 to 215-18).  Neither [...] nor Waterford officer [...] recalled seeing blood on the tire iron.
[brief] In any event, the issue is moot because the defendants waived the issue by failing to timely raise it at trial.  an accountant.  He wasn’t running the company.  That was more of [...]’s role. ” (36T 9:23 to 10:4).  As the trial court later explained: [...] “was the scientist.  There is no doubt in my mind that he was out [the financial] loop. ” (37T 86:16-17).
[brief] They rolled [...] over, used shears to cut off his shirt and attempted to find any bullet wounds.  (2T179-4 to 9).  They observed a chest wound in [...]’s left upper chest area below his shoulder, and attempted to apply a chest seal.  (2T179-14 to 180-4).  At 6:56 p.m., [...], an Emergency Medical Technician with the [...], was dispatched to the scene.  (2T164-16 to 19; 2T165-21 to 25; 2T167-13 to 20; 2T168-4 to 6).  Upon his arrival, he located [...], who had sustained a gunshot wound to his left shoulder, right side/back, lower abdomen, left knee, and right knee.  (2T169-9 to 24; 2T170-9 to 18).  Mr. Cosaj’s supervisor indicated that [...] had a pulse, so Mr. Cosaj moved [...] onto a stretcher and brought him to the ambulance for further assessment.  (2T170-2 to 8).  In the ambulance, [...] became pulseless and was not breathing, so Mr. Cosaj initiated chest compressions and started CPR.  (2T171-7 to 21).  [...] was then transported to [...].  (2T171-3 to 6).  CPR was continued all the way to the hospital.  (2T171-24 to 172-2).  [...] [...] responded to [...] and was advised that [...] was pronounced dead by [...] at 7:19 p.m. (5T55-12 to 16; 5T57-10 to 59-5).
[directive] Under the plain language of the Rule, to determine how much additional time should be excluded, trial courts should scrutinize both indictments with care and consider when the information underlying the new charges was available.  Beyond that, courts may require the State to explain how the new charges affect its ability to prepare for trial and present its case.  See D.F.W., 468 N.J. Super. at 436; see also United States v. Andrews, 790 F.2d 803, 808- (noting that superseding charges that “merely . . . ‘gild[]’ 09 (10th Cir. 1986) the initial charge” do not provide a basis for additional time under the federal A prosecutor’s decision not to present an Speedy Trial Act).
[brief] The Board's own findings are set forth at paragraphs 6-7:  1.  The Application for Development will promote the public health, safety, morals and general welfare.  2.  The Application for Development will secure from fire, flood, panic and other natural and man-made disasters.  3.  The Application for Development provides for adequate light, air and open space, 4.  The Application for Development promotes a desirable visual environment through creative development techniques and good civic design.  5.  The Application for Development promotes the construction of single-family residential dwellings consistent with current base flood elevation and FEMA requirements and is a substantial benefit to the general welfare of the community.  6.  The site is particularly suited for the subject development as being consistent with the [...] Vision Plan.  Pa23 to Pa24.  These bare-bones 'findings' do not relate in any way to the (d)(5) proofs set forth by [...].  The Board cannot find what the Applicant did not prove.  The primary responsibility of the applicant is to supply competent and credible evidence .  . . .  The responsibility of the board is then to weigh the evidence submitted and reach basic factual determinations .  . . .  Tomko, 21 N.J. at 239.  "Likewise, in addressing the so-called negative criteria, the applicant would need to demonstrate that the increase in density would not have a more detrimental [e]ffect on the neighborhood than construction of the project in a manner consistent with the zone's restrictions."  Grubbs v. Slothower, 389 N.J. Super. 377, 390 (App. Div. 2007).  For obvious reasons, the Applicant made no such demonstration and the Board made no such finding.  Stuffing in two extra units -- 13% more than the permitted density -- is exacerbating the traffic and parking problem.  There would be no net loss of street parking were it not for the Applicant intensely developing seventeen units accessing two different streets.  At Da61 to Da62, the judge adopts the Board's reasons why the height and density variances should be granted.
[brief] ”  *Id.* at 320-21 (citation omitted).  Defense counsel’s decision concerning which witnesses to call is “an art”, and appellate review of that decision is “highly deferential. ”  *Id.* at 321 (quoting *Strickland*, 466 U.S. at 689, 693).  The PCR court properly determined that [...] and [...] were simply not credible alibi witnesses.