ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The Defendant asked the Municipal Court a question about making time payments, and then the Municipal Court moved on to sentencing the Defendant.  (T1:6-21 to 7-3).  The Municipal Court ultimately sentenced Defendant to fines and penalties consistent with his status as a first offender of the DWI statute.  (T1:11-24 to 12-12).  On May 15, 2022, Defendant filed a Motion to Vacate Guilty Plea based upon an insufficient factual basis.
[brief] Our Supreme Court has also recognized and referenced the United States Supreme Court’s Fourth Amendment analysis in *Florida v. Jardines*, 133 S.Ct. 1409 (2013), see *State v. Wright*, 221 N.J. 456 at 467, 476.  That Court remanded to this Court to consider the issues raised on this appeal as to *Jones* and its progeny as well as, presumably, an independent State constitutional analysis.  This Court, when confronted recently with the pertinent principles of constitutional law noted that “New Jersey courts must apply the principles and holdings set forth in Jardines and Collins, and to the extent that existing New Jersey precedent conflicts with those holdings, the United States Supreme Court cases govern. ”, State v. Ingram, 474 N.J. Super. at 540.  Notably, the Ingram Court made no determination on a State constitutional analysis.  This remand from the New Jersey Supreme Court would appear to counsel an independent State constitutional inquiry rather than simply relying on a Federal supremacy Fourth Amendment analysis.
[brief] *Pa006*.  She further inquired as to when Appellants would be obtaining the new counsel required by the Order under review.  *Ibid.*  In response, that same day, [...] wrote to the court below requesting an informal stay pending his formal motion for a stay.  *Pa008*.  [...] never addressed his ethical duty to abide by the Order under review, nor did he explain what part of the law of the State of New Jersey authorized an informal stay at all, let alone at the request of a disqualified attorney.  *Ibid.*  Later that day, both [...], *Pa009*, and the undersigned attorneys for Respondent filed letters in opposition to [...]’s informal application.  *Pa011*.  The undersigned attorneys also wrote to [...] directly and provided a copy to the court below.  *Pa013*.  By text order dated February 29, 2024, the court below advised that “A formal motion is required as the court cannot decide such an application based upon a letter that provides no legal analysis. ”  On March 19, 2024, Appellants, through [...], filed for leave to appeal.
[brief] (PA000007).  Indeed, although Plaintiff was unaware whether such requirements were fulfilled by Defendants, the underlying notion of the regulation and Plaintiff’s complaints remain clear: a lack of staffing coverage is not justifiable unless made in writing and approved by the respective authorities, otherwise the minimum requirements of such a facility would be noncompliant and the safety and well-being of the developmentally disabled residents would be a risk.  Similarly, Plaintiff’s complaints about inadequate training also “closely relates” to N.J.A.C. § 10:44 A-2.7(a) because the staff training established minimum requirements for training such as medication training, preventing abuse and neglect, and other subject areas; again, Plaintiff particularly stated in her Complaint  Defendants’ employees were unable to properly take a resident’s blood sugar, which goes directly to the required training on medication and preventing abuse/neglect as required by the training requirements set forth in N.J.A.C. § 10:44 A-2.7(a).2 (PA000007-PA000008)  Furthermore, a closer review of the regulation N.J.A.C. § 10:44A leads to the understanding that the Commissioner of Human Services, who created the standards set forth in N.J.A.C. § 10:44A, adopted said rules and regulations to carry out the purposes set forth by the State Council on Developmental Disabilities under N.J.S.A. § 30:1AA.
[directive] Nothing in this Supplemental Directive shall be construed to limit the authority of the -10- prosecutor to argue for a specific sentence, or to argue with respect to the applicability and weight that should be given to the circumstances specified in N.J.S.A. 2C:35-7b(1)(a through d), with the understanding that when the defendant is eligible to be sentenced pursuant to N.J.S.A. 2C:35-7b, the decision to waive or reduce the mandatory minimum sentence under that section rests within the discretion of the court and not the prosecutor, and that any specific sentence urged by the prosecutor or contemplated by a negotiated plea agreement represents a non-binding recommendation.  Authority to dismiss school zone charges as part of a "package deal" involving non-school zone charges
[brief] As Plaintiff demonstrated in its initial appellate brief, [...]’s application proposed two principal commercial or industrial uses that were part of a single site plan in accordance with [...] Ordinance § 250-4.  Defendant does not provide any argument to the contrary.  As previously demonstrated, the already permitted Cell Tower use and permitted as-of-right industrial use proposed in Plaintiff’s site plan qualify as “mixed uses of more than one principal commercial or industrial use” that “are part of a single site plan. ”  One of the principal uses proposed in Plaintiff’s site plan Application, a warehouse, is by-right permitted use in the Industrial Zone.  The other principal use proposed in the Application was the existing Cell Tower, which was at all times integrated with the warehouse use as part of a united and comprehensive site plan.  Further, Plaintiff has demonstrated that the “uses are part of a single site plan, with cross easements for utilities and stormwater management, and access, ingress and egress utilizing shared, common driveways” in accordance with the Ordinance.  (Pa3-Pa13).  The site plans submitted in support of the Application show the existing and proposed conditions of the Property, including the existing Cell Tower along with the equipment enclosure at its base, as well as the proposed warehouse development and associated site improvements.  Thus, all information necessary for the Planning Board to make an informed decision regarding whether the existing and proposed development complies with Westampton’s site plan Ordinances is demonstrated in the Application.  Additionally, no cross easements for utilities and stormwater management are necessitated by the existing and proposed development, and the requirement for shared access is met by the existing and proposed uses and development.  Thus, Defendant’s argument that any use not expressly permitted in the applicable ordinances is prohibited is irrelevant.  (Db17-18).  Nonetheless, the case law Defendant relies on in support of its contention that any use not identified as permitted is deemed prohibited is distinguishable from the facts in this matter.  Defendant relies on *L.I.M.A. Partners v. Borough of Northvale*, 219 N.J. Super. 512 (App. Div. 1987), *Bartlett v. Middletown Twp.*, 51 N.J. Super. 239 (App. Div. 1958), and *Fin. Servs., L.L.C. v. Zoning Bd. of Adjustment of Borough of Little Ferry*, 326 N.J. Super. 265 (App. Div. 1999).
[brief] ’”  *Id.* at 835 (quoting *Adams v. United States ex rel McCann*, 317 U.S. 269, 279 (1942)).  As this Court has explained, a “two-step process has emerged” when assessing a defendant’s request to proceed pro se.  *State v. Rose*, 458 N.J. Super. 610, 626 (App. Div. 2019).  First, a defendant must “clearly and unequivocally” request to represent himself in a timely manner.  *Ibid.*  In making the request, a defendant need not “recite some talismanic formula. ”  *Ibid.* (internal quotation marks omitted).  A defendant need only make the request in a manner clear enough that “no reasonable person can say that the request was not made. ”  *Ibid.* (internal quotation marks omitted).  Second, “once a defendant asserts the self-representation right, the trial court must ascertain. . . whether the waiver is indeed knowing, voluntary, and intelligent after a searching inquiry that involves advising the defendant of the risks and pitfalls of self-representation.
[brief] See Hernandez, 149 N.J. at 75.  Thus, interference or attempted interference with the exercise of that right by retaliation constitutes "threats, intimidation or coercion" cognizable under N.J.S.A. 10:6-2(c)  Hernandez v. Hudson Cnty.  DOCKET NO. [...] (App. Div. Jul. 15, 2020)  Tumpson v. Farina 218 N.J. 450 (N.J. 2014)  The court found that defendants [...] and the [...] “violated Plaintiffs’ substantive right under the referendum laws and are therefore liable” under N.J.S.A. 10:6–2(c) of the New Jersey Civil Rights Act.  The court also found that plaintiffs were entitled to an award of attorney's fees and costs pursuant to N.J.S.A. 10:6–2(f), an amount that was later determined to be $69,564.18.
[brief] (Pa209)  Having no response, the Board’s counsel sent a follow-up email of September 8, 2022, which prompted a conference call between counsel.  (Pa237)  Thereafter, [...] sent Board counsel a further revised/redlined draft resolution by way of email of October 7, 2022 (Pa238-239); that draft contained significant changes.  From the foregoing history, it is clear that the Board wanted to resolve both the resolution and the Settlement Agreement amendment as soon as possible, and long before the Board counsel’s scheduled an out-of-the country trip from October 20 through November 3, 2022, because the Board did not want the resolution and/or the settlement agreement amendment to linger past October.  (Pa269)  In addition, [...]’s attorney [...] was scheduled to be married in mid-November.  (Pa139)  By the date of Board counsel’s scheduled departure date of October 20, 2022, the Resolution had not been resolved and [...] had yet to provide any comments to the proposed Amendment to the Settlement Agreement.
[brief] 4  In 2017, the Supreme Court summarily denied a motion by the State to vacate those underpinnings.  Abbott v. Burke, Docket No. 078257 (Jan. 31, 2017) (Pra1).  the State asserts is [...]’s “refus[al]” to increase property taxes to allow it to fully fund its LFS.  (Db39; Pa41.)  This claim is, however, belied by the evidence showing that [...] consistently raised its property tax levy within the parameters allowed by the SFRA’s 2% annual tax growth cap.
[brief] Not only does the legislative history fail to support the sentencing court’s assertion the legislative intent of the certain persons statute was to provide a further deterrent in the form of a consecutive sentence, but the fact that N.J.S.A 2C:39-7 lacks a provision mandating or even creating a presumption of a consecutive sentence makes it clear that the Legislature did not intend sentences for certain persons convictions to always or even usually be served consecutively.  State v. Lopez, 417 N.J. Super. 34, 37 n.2 (App. Div. 2010) (“[T]here is no statutory mandate that the court impose a consecutive sentence for a certain persons conviction. ”).  In contrast, the Legislature explicitly mandated that a sentence for possession of a firearm in the course of committing a controlled dangerous substance offense “be served consecutively to that imposed for any conviction for a violation of any of the sections of chapter 35 or chapter 16 referred to in this section. ”  N.J.S.A. 2C:39-4.1(d).  Likewise, the Legislature created a presumption of consecutive terms for offenses committed while on probation, parole, or pretrial release.  N.J.S.A. 2C:44-5(c), (f), (h).  If the Legislature had intended that certain persons offenses be run consecutively, it would have included language similar to that in Section 39-4.1(d).  Cf. State v. Dillihay, 127 N.J. 42, 49 (1992) (“Had the Legislature intended multiple punishment [for school zone and ordinary CDS distribution charges stemming from the same transaction], it could have explicitly authorized consecutive sentencing for related Section 5 and Section 7 offenses. ”)  Accordingly, a consecutive sentence is not necessary to further the legislative intent of the certain persons statute nor to ensure that the certain persons statute is not “neutered” because (1) its purpose was to criminalize and enhance the penalty for simple possession—not use—of a firearm by a convicted felon, and (2) the Legislature did not create any presumption or mandate that a certain persons conviction run consecutive to any substantive offense committed with the firearm.
[brief] In Milcarek v. Nationwide Ins. Co., 190 N.J.Super. 358, 366, 463 A.2d 950 (App.Div.1983), we held that, in determining whether a PIP payment is overdue, “the objective merit” of the insurer’s defense is relevant.  In so ruling, we quoted from Hopkins v. Liberty Mut. Ins. Co., 158 N.J.Super. 176, 178-79, 385 A.2d 922 (App.Div.1978), where it was stated:  [T]he subjective good faith of the carrier in interposing a defense to payment is immaterial.  Rather, the determining factor is the objective merit of the defense, whatever way it is ultimately decided—not the good or bad faith of the carrier asserting it.  Hence, a frivolous defense tendered in complete good faith as to its validity will not be held to excuse payment of statutory interest.  As a result, when it is determined that an interposed defense is of sufficient merit as to warrant judicial resolution, the payment of interest at the statutory rate, which is in excess of the legal rate, is excused.  Milcarek, supra, 190 N.J.Super. at 366, 463 A.2d 950.  We discern the basis for plaintiff’s arguments in support of her claimed right to seek the discovery in question, as well as the basis for the trial judge’s ruling, which permitted the divulging of this information, was plaintiff’s contention that defendant asserted its defenses to plaintiff’s claim in bad faith.  As we held in Milcarek, the subjective purpose for the assertion of a defense to PIP benefits is not relevant.  All that is relevant in this regard is whether there is “objective merit” in the defenses interposed, a question which will not be illuminated by the discovery in question.  Considering that the statutory scheme was intended to provide for the prompt payment... of medical expenses “without having to await the outcome of protracted litigation,” *Milcarek, supra*, 190 N.J.Super. at 366, 463 A.2d 950, we find it ironic that it is plaintiff’s pursuit of irrelevant discovery—including, perhaps, some of the discovery that has already occurred—which is protracting this litigation.  We conclude that the trial judge mistakenly exercised his discretion over the management of the discovery proceedings by permitting this unwarranted and irrelevant excursion into the question of whether defendant asserted its defenses in subjective bad faith.  As a result, we reverse the orders of May 13, 2005 insofar as they required that the in-house attorney submit to a deposition and insofar as they required the turnover of PIP aid and training materials, and we reverse also the order of August 23, 2005, which denied reconsideration.
[brief] Likewise, the purpose has been recognized by the Board, as recently as less than a year ago.  While not explicitly identified as contaminated land or landfill property, the use of a sand pit for solar is well supported.  In the I/M/O Competitive Solar Incentive (“CSI”) Program Pursuant to P.L. 2021, C. 169, Docket No. [...], dated December 7, 2022, the Board noted:  The Board has long recognized the benefits of solar development on contaminated sites and landfills, with approximately 254 MW operational under the subsection (t) program of the Solar Act of 2012 as of October 31, 2022.  This is not least because such development has enabled clean-up and mitigation activities on such sites, and because, given the limited availability of land in New Jersey, using contaminated sites and landfills for solar development reduces development pressure on open space.  [Id. at 16. (106a, 122a.)]
[brief] Generally speaking, if the language of a statutory provision is “plain,” courts employ its “plain meaning,” giving the words of the statute “their ordinary meaning and significance. ”  *Nicholas v. Mynster*, 213 N.J. at 480 (citing *DiProspero*); *Hardt v. Reliance Standard Life Ins. Co.*, 560 U.S. 242, 251 (2010).  However, in deciding whether a particular statutory provision is “plain,” courts do not construe the provision “literally or in isolation,” as Appellant effectively proposes.  *Pettus v. Morgenthau*, 554 F.3d 293, 297 (2d Cir. 2009).  See also *Guiseppi v. Walling*, 144 F.2d 608, 624 (2d Cir. 1944) (The Honorable [...], stating: “There is no surer way to misread any document than to read it literally. ”); [...], A Matter of Interpretation 24 (1997) (noting “the good textualist is not a literalist”); Perez v. Rent-A-Ctr., Inc., 186 N.J. 188, 208 (2006).  Instead, “[t]he plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.
[brief] Distilled to its essence, [...]’s defense here is that other agreements were deemed enforceable that lacked the language its agreement lacks.  It thus points to the recent (unpublished, not precedential or binding) Drosos v. GMM Global Money Managers Ltd., No. A-3674-21 (App. Div. Nov. 14, 2023) (slip op., at *4) (Da360- 361), where an agreement that did not specifically mention “waiver” of the “right to a trial by jury” was upheld.
[brief] In his appeal, plaintiff relied on the law of nuisance to argue that he did not need expert testimony to establish a prima facie case of liability against the [...].  Pb17-20.  However, the trial court focused on the issue of net opinion as the basis for its grant of summary judgment.  T64:13-68:10.  The court ruled that plaintiff needed to support his claim of nuisance through admissible expert testimony, T63:22-64:18, and that he failed to do so.  T67:20-68:12.  For expert testimony to be admissible, the proponent must show that the expert’s opinion is based on facts in the record and is supported by a proper scientific or technical foundation.
[brief] Under N.J.S.A. 40:55D-70c(1), the Board can grant c(1) or so-called “hardship” variances from zoning ordinance regulations where: “(a) by reason of exceptional narrowness, shallowness or shape of a specific piece of property, (b) or by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property, or (c) by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structure lawfully existing thereon, the strict application of any regulations … would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon the developer of such property. ”  The Board may not exercise its power to grant a c(1) variance otherwise warranted, however, unless the “negative criteria” has also been satisfied, i.e., without a showing that such variance can be granted: (a) without substantial detriment to the public good; and (b) will not substantially impair the intent and purpose of the zone plan and zoning ordinance.  N.J.S.A. 40:55D-70.  To meet the c(2) positive criteria for variance relief, the applicant must show that, as related to the property in question: (1) the purposes of the MLUL would be advanced by a deviation from the zoning ordinance requirement; (2) the benefits of the deviation from the applicable zoning requirement would substantially outweigh any detriment; and the negative criteria, (1) the variance can be granted without substantial detriment to the public good; and (2) the granting of the variance will not substantially impair the intent and purpose of the zone plan and zoning ordinance.  Wilson v. Brick Twp. Zoning Bd., 405 N.J. Super. 189, 198 (App. Div. 2009).  The Board explained why it found Plaintiff failed to satisfy the criteria for a c bulk variance relief under both N.J.S.A. 40:55D-70c(1) and c(2):
[directive] Do you understand that if you violate the conditions of your parole supervision that your parole may be revoked and you may be subject to return to prison to serve all or any portion of the remaining period of parole supervision, even if you have completed serving the term of imprisonment previously imposed?  [Wi/Yes]  [Non/No]  4.  Èske w konprann ke le fèt ke w plede koupab epi ke w admèt ke krim la (krim yo) se yon krim vyolans lè sa a w abandone dwa w pou yon jiri ta detèmine, odela de dout rezonab, ke sikonstans la (yo) ki konvèti krim la a yon krim vyolans prezan?  Do you understand that by pleading guilty and admitting that the crime(s) are a violent crime you are waiving your right to have a jury determine, beyond a reasonable doubt, that the circumstance(s) that make the crime(s) a violent crime(s) are present?
[brief] He asserted that the assets of [...] had been sold “in bulk” on that date.  Ca142.  In blaming [...] for the year and a half in between, he asserted that counsel for [...] “did not take any action for a year and a half to the point when I am making my request for discharge which would be nunc pro tunc January 18, 2022, technically. ”  He does not explain, for example, if this was the reason, he did not seek assistance of the Court.  He asserts that the diner, per monthly reports, was a “negative operation”, such that rent could not be paid.
[brief] See, e.g., H.R. 2532, 210th Leg., (N.J. 2003) (statement of [...] and Vitale).  The bill was based on a Model Act adopted by the [...] ([...]) and added “two new provisions to the [...] Model Act”: (1) “[e]very long-term care insurance policy shall be filed with the commissioner for prior approval” and (2) “[r]ate filings for long-term care insurance issued on an individual basis must receive prior approval” and “must not be excessive, inadequate or unfairly discriminatory. ”  Id.  Central here, the Act provides that “[t]he commissioner shall promulgate regulations, pursuant to the ‘Administrative Procedure Act,’ P.L. 1968, c. 410 (C.52:14B-1 et seq.), necessary to effectuate the purposes of this act including, but not limited to, regulations dealing with . . . loss ratio, and other information that the commissioner feels necessary. ”  N.J.S.A. 17B:27E-9 (emphasis added).  In accordance with this mandate, the Commissioner promulgated detailed regulations, see, e.g., N.J.A.C. 11:4-34.1 (discussing promulgation), including regulations that set forth requirements for loss ratios, see N.J.A.C. 11:4-18.5; 11:4-34.17, 11:4-34.18.  By contrast, the Department has taken the position that there are no regulations implementing the Act’s statement that rate filings are to demonstrate that “rates are not excessive,” notwithstanding that the Legislature ordered the Commissioner to promulgate regulations.  *See, e.g.*, Pa152.  (“[T]he LTCI Act gave the Department the absolute discretion to deny rates it finds . . . excessive notwithstanding [...]’s compliance with the regulatory requirements. ”).  There also is no agency guidance that spells out what that statutory concept means, nor to [...]’s knowledge had there been any agency adjudications prior to this one addressing that provision and the criteria for its applicability.  **D.
[brief] ”  *Id.* at 9 (“The Court sees no reason, and the [...] provides none, why a request for emails or other communications records necessarily must include a key word or subject matter for an agency to determine ‘precisely what records are being requested. ’”).  The court found the record did not establish that the [...] had any such per se policy because there was proof it had fulfilled some requests without requiring a keyword.  *Id.* at 14.  Nonetheless, the court found that the request for “[a]ll emails between [...] and [...] (Chief of Staff), [...] (Deputy Chief of Staff), or [...] (Acting Deputy Administrator) from June 1, 2017, to June 15, 2017” sufficiently identified the records sought with reasonable clarity.