ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] [15T:177-1 to 5]  In assessing aggravating factor three, the court simply noted that [...] had no remorse because he didn’t speak at sentencing.  (17T:198-24 to 198-13).  The Court also misquoted and took out of context comments from [...]’s social worker notes to place a greater emphasis on this factor.  (17T:196-11 to 18).  This information was based upon hearsay statements of a social worker that didn’t testify at the trial.
[brief] Although a Certification In Support Of Summary Judgment was submitted by Plaintiff, such Certification is not an affidavit (Exhibit FF) (Da115).  An affidavit is a written statement that is notarized and sworn to be accurate by the person who signs it.  The affidavit must also be signed by a notary public or other person authorized by law to administer oaths.  Pursuant to the clear language of R. 1:6-6, the lower Court mistakenly accepted Plaintiff’s statements of account as evidence when Declarant did not submit an affidavit.  “Only an affidavit together with properly certified depositions, answers to interrogatories or admissions can supply facts outside the record that are not judicially noticeable.  Where the submission is by affidavit, it must be made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify and which may have annexed thereto certified copies of all papers or parts thereof referred to [in the affidavit].  The certification provided no competent admissible evidence.  Counsel began the certification with the statement, ‘I am fully familiar with the facts of the matter....’  ...The absence of competent, admissible evidence precluded resolution of the summary judgments.  See [...], Current N.J. Court Rules, comment on R. 1:6-6 (1994) and the cases cited therein.
[brief] Appellant has prepared approximately eight pages of what they deem to be facts material to the matter.  It should be noted that none of the alleged “statements” are of any facts in the matter.  They are simply Plaintiff/Appellants self-serving statements and commentary on the testimony offered at the Trial.  As such, all of the information in the alleged “Statement of Facts” are denied in their entirety.  More importantly, these alleged statements of facts are the same statement of facts filed along with the prior appeal.  LEGAL ARGUMENT POINT I THE TRIAL COURT PROPERLY FOLLOWED THE APPELLATE DIVISION’S ORDER FOR REMAND
[brief] ## Cases | Case | Page Nos. | |-------------------------------------------|-----------| | State ex rel. T.M., 166 N.J. 319 (2001) | 4, 8 | | State v. Barboza, 115 N.J. 415 (1989) | 4 | | State v. Blackmon, 202 N.J. 283 (2010) | 18 | | State v. Bolvito, 217 N.J. 221 (2014) | 18 | | State v. Briggs, 349 N.J. Super. 496 (App. Div. 2002) | 28 | | State v. Campfield, 213 N.J. 218 (2013) | 3, 5, 6 | | State v. Carey, 168 N.J. 413 (2001) | 32 | | State v. Carter, 247 N.J. 488 (2021) | 22 | | State v. Case, 220 N.J. 49 (2014) | 18, 21, 26, 27, 31 | | State v. Curtis, 195 N.J. Super. 354 (App. Div. 1984) | 5, 8, 11 | | State v. Evers, 175 N.J. 355 (2003) | 31 | | State v. Gaines, 377 N.J. Super. 612 (App. Div. 2005) | 6 | | State v. Gorman, 454 N.J. Super. 343 (App. Div. 2018) | 11 | | State v. Gregory, 220 N.J. 413 (2015) | 3, 4, 8 | | State v. Hess, 192 N.J. 123 (2011) | 28 | | State v. Hooper, 459 N.J. Super. 157 (App. Div. 2019) | 35 | | State v. Jaffe, 220 N.J. 114 (2014) | 13 | | State v. Jenkins, 178 N.J. 347 (2004) | 6 | ### TABLE OF AUTHORITIES (CONT'D) | Cases (Cont'd) | PAGE NOS. | |-------------------------------------------------------------------------------|-----------| | **State v. Mance**, 300 N.J. Super. 37 (App. Div. 1997) | 13, 18 | | **State v. Miller**, 108 N.J. 112 (1987) | 32, 34 | | **State v. Morrison**, 233 A.3d 136 (Md. 2020) | 8 | | **State v. Nataluk**, 316 N.J. Super. 336 (App. Div. 1998) | 28 | | **State v. Nayee**, 192 N.J. 475 (2007) | 28, 29 | | **State v. Pennington**, 154 N.J. 344 (1998) | 35 | | **State v. Perez**, 220 N.J. 423 (2015) | 4 | | **State v. Randolph**, 210 N.J. 330 (2012) | 13, 35 | | **State v. Rivera**, 249 N.J. 285 (2021) | 18, 26 | | **State v. Ruiz**, 399 N.J. Super. 86 (App. Div. 2008) | 6, 10 | | **State v. Scriven**, 226 N.J. 20 (2016) | 22 | | **State v. Smullen**, 118 N.J. 408 (1990) | 5 | | **State v. Streater**, 233 N.J. Super. 537 (1989) | 33 | | **State v. Tate**, 220 N.J. 393, 404 (2015) | 4 | | **State v. Torres**, 246 N.J. 246 (2021) | 23, 34 | | **State v. Wilder**, 193 N.J. 398 (2008) | 7 | ### STATUTES
[brief] [Pa41].  [...] correctly concluded that Appellant was required to report the Incident to [...] pursuant to the Rules and Regulations, failed to do so, and gave inconsistent and untruthful statements on the night of the Incident.  [Pa43].  [...] also correctly concluded that Appellant was untruthful regarding his prescriptions and opioid use.  [Pa50].  [...] further concluded that Appellant was required to report the Vehicle Incidents to [...] pursuant to the Rules and Regulations but failed to do so.  [Pa50-Pa52].  [...] also concluded that Appellant was required to request and receive approval before leaving his home while on sick leave and violated the Rules and Regulations by failing to do so, and that Appellant also violated the Rules and Regulations by making misrepresentations about his whereabouts while out on sick leave.  [Pa53-Pa54].  All of these findings were supported by credible record evidence.  On May 3, 2023, the [...] adopted [...]’s Finding of Facts and Conclusion, as well as his recommendation to uphold Appellant’s termination.
[brief] As one example, Section 7 contains Choice of Law and Choice of Forum clauses that are just as internally inconsistent as the provision in Ogunyemi.  The whiplash between the second and third sentences of Choice of Forum is particularly egregious.  (Da97).  In the second sentence, the Terms set forth the statement that “any dispute, claim, or controversy arising out of or relating to incidents or accidents resulting in personal injury . . . shall be brought exclusively in the state or federal courts in the State in which the incident or accident occurred.  . . except as may be otherwise provided in the Arbitration Agreement above or in supplemental terms applicable to your region, to the extent permitted by law. ” (Da97).  This appears to endorse the filing of litigation in these circumstances, qualified by the arbitration agreement in Section 2, “supplemental terms” (that are never provided or identified), and “to the extent permitted by law” which is never elaborated on.  (Da97).  However, the third sentence then continues, “[t]he foregoing Choice of Law and Choice of Forum provisions do not apply to the Arbitration Agreement in Section 2, and we refer you to Section 2 for the applicable provisions for such disputes. ” (Da97).  This sentence, which repudiates applicability of the Choice of Forum clause just a sentence after indicating both worked in concert is contradictory and leaves the user with unreconcilable questions of what impact the Choice of Forum clause then has to personal injury claims.  The average user, with no real knowledge of arbitration or their rights, would have no ability to discern which contradictory clause controlled.  And this is all the more true where in Section 6 above, [...] actually disclaims all liability for “personal injury” and the user even agrees to indemnify [...] for such claims!  (Da95-96).  Those anti-consumer clauses, preying on ignorance to stifle claims, compound the contradictory nature of Section 7’s clauses, the confusing cross-references between innumerable sections, and the overall ambiguity of the agreement.
[brief] We represent Respondent [...] t/a [...].  In accordance with RR. 2:6-2(b) and 2:6-4(a), and in lieu of a more formal filing, please accept this letter brief in response to Petitioner [...]’s brief.  TABLE OF CONTENTS  TABLE OF AUTHORITIES .................................................. ii  APPENDIX TABLE OF CONTENTS ........................................ v  TABLE OF JUDGMENTS ....................................................  vi  PROCEDURAL HISTORY/STATEMENT OF FACTS .........................  1  LEGAL ARGUMENT ..........................................................  6  I.  PLAINTIFF MAY NOT CHALLENGE THE TRIAL COURT’S MARCH 1, 2024  ORDER DISMISSING HER COMPLAINT WITH PREJUDICE SINCE SHE DID NOT OPPOSE RESPONDENT AFFINITY CARE’S MOTION FOR SAME ..................................................  6  II.  THE TRIAL COURT PROPERLY DISMISSED PETITIONER’S COMPLAINT WITH PREJUDICE DUE TO HER FAILURE TO COMPLY WITH COURT ORDERS TO RETAIN COUNSEL .......................  7  A.  Petitioner’s Statute of Limitations Argument Has No Bearing On The Court’s March 1, 2024 Order of Dismissal ......................  9  III.  THE COURT MUST AFFIRM THE TRIAL COURT’S MARCH 31, 2023  ORDER DENYING PETITIONER’S “MOTION TO DEMAND DOCUMENTS” AS IT LACKS SUPPORT OF ANY APPLICABLE COURT RULE OR CASE LAW  .............................................  10  CONCLUSION .................................................................  12  Appendix TABLE OF AUTHORITIES
[brief] The reviewing court may "not substitute its judgment for the judgment of the sentencing court," *State v. Lawless*, 214 N.J. 594, 606 (2013), and must affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the --- \(^3\) *State v. Yarbough*, 100 N.J. 627 (1985). record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."  [State v. Miller, 237 N.J. 15, 28 (2019) (alteration in original) (quoting State v. Fuentes, 217 N.J. 57, 70 (2014))].  See also Tillery, 238 N.J. at 323 (reiterating that the focus of the reviewing court's inquiry "is on whether the basic sentencing determination of the [trial] court was 'clearly mistaken'" (quoting State v. Jarbath, 114 N.J. 394, 401 (1989))).  In determining an appropriate sentence to impose within the prescribed statutory range, the trial court "first must identify any relevant aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the case.
[brief] In contrast, in this case, there are two potential damages outcomes, neither of which calls for the exercise of equity to fashion a unique remedy.  On the one hand, if the trial court’s order awarding Plaintiffs an implied easement is not reversed, or if it is reversed but Plaintiffs then prevail on the merits at trial, Plaintiffs will have secured a significant property right by virtue of having acquired a right to an easement across [...]’s Property.  On the other hand, if the trial court’s easement order is reversed and Plaintiffs do not ultimately prevail on the merits of their easement claim at trial, Plaintiffs will not be entitled to any damages of any kind on their claim.  Either way, there is no basis on which this Court should go beyond established parameters to fashion an equitable remedy and allow Plaintiffs to recover attorneys’ fees that they are not otherwise entitled to seek under New Jersey law for an easement claim.
[brief] THE BOARD PROPERLY REJECTED THE CONTESTED MAIL-IN BALLOTS (Addressing [...]’s Points II and III)  The Board properly refused to permit a voter to cure her deficient mail-in ballot and properly rejected seven other write-in ballots postmarked more than forty-eight hours after the polls closed.  (2T75:14-2T76:1).  Where it is alleged that legal votes have been rejected, the contestant must demonstrate “that had the votes been cast for him, the result would have been different. ”  Application of Moffat, 142 N.J. Super. at 224).  Where the alleged legal votes rejected are mail-in or provisional ballots, if the court determines that they do constitute legal votes, the court would then order that the mail-in or provisional ballots be opened and counted by the Board.  See DeFlesco v. Mercer Co. Bd. of Elections, 43 N.J. Super. 492, 495 (App. Div. 1957) (wherein the trial court ordered the absentee ballots opened and counted).  A.
[brief] 15 - R. 4:3-1(a)(1) ..................................................................................  15 - R. 4:6-2 (2021) ................................................................................ 20 - R. 4:6-7 ..........................................................................................  20 - R. 4:6–7 ..........................................................................................  12 - R. 4:69-1 ........................................................................................ 19 - R. 4:9-1 ..........................................................................................  38 - Rule 1:12-1(g) ................................................................................ 36 - Rule 1:12-2 .....................................................................................
[brief] She believed that it was aimed at the fact that she could possibly be a Lieutenant (1T; 128:1).  She described what was going on as a conspiracy: “When two people talk together and come up with a plan or devise a plan to hurt someone” (1T; 128:6).  When asked if she had evidence, she stated, “Not specifically, but what I see in writing as far as the evaluation and the lies on the evaluation, absolutely” (1T; She emphasized the fact that the evaluation was false (1T; 128:17).  When the Plaintiff arrived at the Academy, she was told by [...], “I know that you have an EEO complaint” (1T; 129:17).
[brief] [...] and [...] are both general surgeons.  Between them, between the two of them, they have approximately 60 years of surgical experience, without any interruption like [...].  Without any interruption of their practice.  Without any interruption of their hospital privileges.  This is what they have been doing.  Together.  For a combined 60 years.  Both teach surgery, general surgery, to students and surgical residents.  Residents who are going to be general surgeons some day.  And they do it on a daily basis.  And clearly, among what they teach is about ischemic colitis.  [7T53-54]  Of course the jury returned a no cause verdict for [...].
[brief] Although conceding that [...] had suffered a hemorrhage, Defendants assigned a resident, [...], to monitor her on the night in question.  At 9:48 p.m., [...] observed a significant abnormality on a fetal monitoring strip that indicated that a c-section needed to be performed immediately.  Defendants contend that the hospital maintained a policy which prohibited [...] from calling a c-section, which the New Motion Judge is accepting as a reason for claiming that [...] did not deviate from the standard of care.  First, Defendants never proffered any authority from any medical governance organization holding that, even in an emergency, a resident cannot call for a c-section.  Yet the New Motion Judge found that [...] could have never called for a C-section.  Second, what Defendants actually suggested in their briefs – although not explicitly arguing this as a reason to grant summary judgment -- was that there is some internal operating procedure of the hospital that placed some limitation on [...].  But the Defendants never proffered any written evidence of such an operating procedure.  In fact, [...] testified that a second-year resident can “give orders” [Pa529, Papapetrou Dep., 85:13-15], so long as she consulted the attending physician.  [Pa529, Papapetrou Dep., 85:23-86-1].  Accordingly, the court’s finding that [...] could not have called the c-section, as per the purported and unproven hospital procedures, is not correct.  Even under the purported hospital policy, all she needed to do was consult with [...] before giving the order.  [Pa529, Papapetrou Dep., 85:13-15; 85:23-86-1].  Defendants admit that [...] and [...] spoke at 9:48 p.m., after [...] observed the alarming strip reading, but neither called for the c-section, and that was a violation of the standard of care on the part of both of them.
[brief] It treated the analysis as all-or-nothing, stating that “[i]t would be illogical to state the facts discovered from 1992 to 2009, which gave rise to and informed plaintiffs’ understanding that defendants had violated the RICO statute, had nothing to do with plaintiffs’ prosecution of their RICO claims. ” (39996a).  The standard is **not** “nothing to do with” RICO claims.  Neither is the standard whether the facts had *anything* to do with the RICO claims.  Rather, the test is whether *all* of the work done to establish *all* of the facts was “reasonably devoted to plaintiffs' pursuit of their respective RICO claims. ”  *Jarwick*, 2018 WL 2449133, at *29.  This Court has rejected precisely such an undifferentiated approach adopted on remand.
[brief] A  No.  Q  Did you -- A  Did I ever retain an expert and have them write a report, just not use it at trial?  Q  Yeah.  A  No, I’ve never done that.  Q  Okay.  And -- and you’ve never saw a ballistics expert in any other case that you may have observed in your earlier -- A  No, not to my recollection, no.  Q  Were you aware at the time of [...]’s trial and, you know, in the pre-trial area, were you aware that that was something that you could do that you could go out and get a ballistics expert?  A  Oh, absolutely Q  Okay.  Did you ever look into any experts, like who’s a ballistics expert, what kind of qualifications are they?  A  Again, it wasn’t relative to our defense, so no, I didn’t.  1T39
[brief] Id. at 177-78.  See also, In re Weeks, 29 N.J. Super. at 536-538 (when the presumption arises, both the burden of proof and the burden of going forward with proof, shift to proponent and to meet each of these assignments, the proponent must establish by the same quantum of proof -- that is, by a preponderance of the proof -- that there is no undue influence).  In Haynes, the Court recognized that a higher standard of proof is required for public policy reasons when an attorney, who serves as a fiduciary, is claimed to have unduly influenced the testatrix.
[brief] And, when we have the case reviewed and our experts tell us there’s no basis to claim against people, we aren’t permitted to file suit against them.  In addition we would not be able to get affidavits of merit against them, so it would be useless and fruitless to do so.  (1T8) (emphasis added).  This proves the point: the plaintiffs’ failure to properly assert and preserve their claims against [...] should not inure to the detriment of [...].
[directive] The single POC at the CPO will share that information with a single point of contact for each county or regional Computer Aided Dispatch (CAD) System.  The single POC for each county or regional CAD shall use this information only to enter confidential flags in the CAD system that is shared by law enforcement officers, emergency medical services (EMS) paramedics and technicians, firefighters, the Department of Children and Families Division of Child Protection and Permanency (DCP&P) and the State Parole Board, as authorized by the Commissioner of Health in this memorandum and the corresponding Attorney General Directive.  Where law enforcement, EMS or fire fighters lack access to a county or regional CAD, the single POC at CPO is authorized to share the information in accordance with the Attorney General’s directive with the Chief Law Enforcement Executive who will in turn share with a single POC for an EMS and/or Fire Fighter CAD system who will use this information only to enter confidential flags in the CAD system or where no CAD system exists for entry into an equivalent confidential records management system that is similarly protected from any dissemination not authorized by the Commissioner of Health and Attorney General.  The Attorney General and Commissioner of Health authorize law enforcement, EMS and firefighters, to share this flag in the CAD system with any responding law enforcement officer, EMS paramedic or technician, firefighter, DCP&P or State Parole Board law enforcement officer on a limited need-to-know basis, while responding to a call for service.  The limited purpose of sharing this information from the CAD system is to alert first responders described herein so that mitigation steps can be taken, such as using Personal Protective Equipment (PPE), when responding to a call for service at an identified location or an identified individual.
[brief] (Discussed below in Point III)  Evidence of the [...] contract lease should never have been presented to a trier of fact because it has absolutely no relevance to the fee simple value in this case.  That is not to say that evidence of the actual contract rent should not be evidential in any case.  The actual rent agreed upon between a landlord and tenant may be the best evidence of the anticipated income, depending on the circumstances of the case.  But not as to this Lease!  The [...] lease (Da126) was negotiated thirty years before the date of valuation when the lessor/owner had nothing but vacant land.  The lease was a variation of a type of land lease.  The owner had the leasee ([...]) act as its general contractor to build the building and parking area to [...]’s terms and specifications as designed by [...].  Thus, [...] put the owner in business with its anchor store allowing the owner to then finance construction of the rest of the units over the next few years.  This was totally unlike any comparable situation to leasing space in an existing shopping center over thirty years later.  None of the characteristics that appraisers look for in comparable leasing transactions are present.  First of all the market conditions thirty years before were never ever referenced by [...].  The standing of the parties and the motivation of the owner was entirely different from an owner renting the existing building to a hypothetical new tenant.  [...] himself never suggested that the [...] lease represented market rent in 1994, his argument was that it was the legally binding contract rent that a buyer would be stuck with for approximately the next 20 years.  That would be so if he were buying the "leased fee estate" as [...] was appraising the property.
[brief] The Trooper’s admittedly not-to-scale diagram which purported to indicate the direction of travel, the conduct of the vehicles before the impact and the final resting points were not based on the Trooper’s observations of the collision.  They were based on the statements of the witnesses for which he was allowed to testify to and his observations after the fact as to the final resting points of the vehicles.  The jury was able to see that information in the photos admitted into evidence and the dash cam video.  The Court correctly noted that the not-to-scale drawing presented vehicles travelling in certain directions.  It did not show the [...] vehicle in a stopped position and had the real probability of confusing the jury since it presented an unsupported version of the conduct of the vehicles.  Since it was not to scale and not based on personal observation of the accident, it offered nothing of value particularly considering the proper evidence summarized above that was admitted into evidence (testimony of the parties; photos of the scene; dash cam video).