ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] In fact, Cox & Koenig clearly states that “if an appellant seeking to reverse the action of an official fails to ask for alternative relief by way of variance and fails as well to give all required notice of such fact, he will be bound on his appeal to the question of whether the administrative officer erred.  If the Board finds no error in the action of the administrative officer, the action of the officer is simply affirmed.  (Id. at 559, emphasis added.)  The Court should further note that at no time did Plaintiff seek an interpretation of the Zoning Ordinance under N.J.S.A. 40:55-70(b) nor did Plaintiff seek alternative relief in their application.  There was no request for a Variance, Ordinance interpretation or any other relief, so the Board was left to the determination on the record provided and the testimony taken during the course of the Public Hearing.
[brief] For the foregoing reasons, the trial court’s decisions granting State Respondents’ Motion for Summary Judgment and their Motion for Reconsideration should be affirmed.  [...]  Attorneys for State Defendants/State Respondents  By:_____________________________________  [...]  Dated: May 10, 2024  [...] & [...], Plaintiffs, v. [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], ABC CORPORATIONS  1-5 (fictitious names describing presently unidentified business entities) and JOHN DOES 1-5 (fictitious names describing presently unidentified individuals), Defendants.  SUPERIOR COURT OF NEW JERSEY APPELLATE  DIVISION DOCKET NO.: [...]  On Appeal  From: Superior Court of New Jersey Law Division – Burlington County Docket No. [...] Sat Below: Hon. [...], J.S.C REPLY BRIEF OF PLAINTIFF/APPELLANT [...] McOMBER [...] [...] [...]
[directive] During the COVID-19 Crisis by (Promulgated Directive #16-20)  The Judiciary has transitioned to a court system which many matters are proceeding in via video or telephone response to the ongoing COVID-19 coronavirus pandemic.  in  Because this need may continue for many months based on current information, Megan's Law proceedings should be conducted remotely by video or telephone for public safety and notification to the public about sex offenders.  Accordingly, the following guidance is being issued for judges to consider when determining what of Megan's Law matters can proceed remotely during the pendency the COVID-19 public health emergency.
[brief] *N.J. Mfrs. Ins. Grp. v. Holger Trucking Corp.*, 417 N.J. Super. 393, 398 (App. Div. 2011) [“Legislature’s use of the definite article undoubtedly was intended to describe one event clearly distinguishable from all others. ”]; *Sun Co. v. Zoning Bd. of Adjustment of Avalon*, 286 N.J. Super. 440, 447 (App. Div.), certif. denied, 144 N.J. 376 (1996) (“[U]se in Avalon’s ordinance of the singular article ‘the’ modifying the term ‘principal use’ reflects an intent that there be but one principal use on the property. ”)  See also *Camp v. Jiffy Lube No. 114*, 309 N.J. Super. 305, 310-11 (App. Div. 1998)  [“In *Ellis v. Caprice*, 96 N.J. Super. 539, 549, 233 A.2d 654 (App. Div.), certif. denied, 50 N.J. 409, 235 A.2d 901 (1967), we reversed a judgment in favor of defendants when the trial court used the definite article ‘the’ in defining proximate cause for the jury.  We conclude the same charge mistake here requires reversal.
[brief] [...] explained that the most significant factor in determining where a prospective resident of a multi-level senior housing community chose to reside was the location where their adult children lived.  [1T 26-15 to 27-6].  [...] noted that in [...]’s other communities, “very few independent living residents . . . actually bring a vehicle and those that do . . . don’t typical use it and eventually . . . get rid of it . . . because it’s really an all-inclusive environment . . .”  [1T 29-2 to 29-10].  He explained that as residents progress to need more intensive, higher level of care to help with their activities of daily living (i.e., dressing, grooming, medication disbursement – typically in their mid-80s), they would move into the assisted living wing where their medical frailties can be accommodated with dignity.  [1T 29-20 to 30-12].  Finally, the memory care wing was designed as a secure environment for residents with Alzheimer’s Disease, dementia and other forms of memory loss to provide these residents with a safe living environment without the risks that might typically arise when living at their home or at the home of a child or other caregiver.  [1T 30-13 to 31- 7].  The community differed from nursing homes as staff provides general health and wellness support but not medical care.
[brief] [...] did not abuse his discretion when denying plaintiffs’ application to replace their expert, Dr.  Mayer, with a new expert, [...], or in denying reconsideration of his order ...........................................  16  A.  [...] did not abuse his discretion in his August 27, 2021 ruling ..................................................  17  B.  There would not have been a legitimate basis for [...] to have extended discovery even if the required motion to extend had been made ...............  21  C.  [...] did not err in denying plaintiffs’ Motion for Reconsideration .............................................  30  D.  Plaintiffs do not deserve a new trial for their failure to vet their own expert’s background .........................  32  Conclusion ............................................................................  33
[brief] That was false, and his application was denied in October 2022.  (Pa209-210).  In October 2022, [...], while claiming no ability to pay the judgment, then retained additional counsel at [...], and his new counsel then filed yet another application for [...] to be released in January 2023, again on the premise that he had no assets other than those being litigated in the Connecticut divorce proceedings, which was a materially false representation.
[brief] 11  I.  WHETHER THE MASTER DEED CONTEMPLATED OR AUTHORIZED THE TRANSFER OF UNIT 74 IS IMMATERIAL TO THE DISPOSITION OF COUNT ONE’S CONSUMER FRAUD CLAIM.  The trial court concluded the Developer conveyed marketable title to Unit 74 because the transfer was contemplated by the Condominium’s Master Deed.  Based upon this finding, it concluded there was no fraud.  The ‘no fraud’ determination served as the lower court’s basis for dismissing the entirety of Plaintiff’s Amended Complaint.
[brief] See Mauricio, 117 N.J. at 417 (accepting that the bouncer may have been bigger than Mauricio although there was no trial record of the size of the bouncer).  Moreover, even if [...] did not specifically brandish the gun, it is the “presence” of the gun that established sufficient provocation; it does not need to specifically be wielded against the defendant provided the person with whom the defendant is arguing is visibly armed with it.  Carrero, 229 N.J. at 129.  Finally, it must be reemphasized that an evaluation of the trial record for this “low threshold” issue must be in “a light most favorable to the defendant,” considering “all inferences that logic and common sense will allow. ”  Mauricio, 117 N.J. at 412, 417 (citations and internal quotations omitted).  The State’s brief mostly does the opposite of this, taking every inference against the instruction and rejecting out of hand any inference in its favor.  The test, however, is not whether the State or this Court believes that “a jury might easily reject defendant's view of the facts and draw inferences different from those reached in defendant's brief .  . . .”  Id. at 415.  If there is any “room for dispute” as to whether the killings could have been the result of passion/provocation, it must have been submitted to the jury.  Ibid.  Accordingly, because there was a rational basis in the record for an instruction on passion/provocation manslaughter, the trial court was required to provide that instruction, and the failure to do so was reversible error.
[brief] A SFST must be administered properly every time for an officer to be considered to have probable cause to arrest.  That is what the SFST was designed for.  State v. Harris, DOCKET NO. [...], 12 (App. Div. Oct. 26, 2020) (“failure to successfully perform the field sobriety tests, established sufficient grounds for an objectively reasonable police officer to believe that defendant had operated her car in violation of the DUI statute.
[brief] ”  *In re Stallworth*, 208 N.J. 182, 194 (2011) (quoting *In re Carter*, 191 N.J. 474, 482-83 (2007).  The challenging party bears the burden of making this showing.  *In re J.S.*, 431 N.J. Super. 321, 329 (App. Div. 2013).  Here, the [...]’s September 20, 2023 decision should be affirmed because it reasonably exercised its expertise when it affirmed [...]’s determination that [...] had discriminated against [...] in violation of the State Policy.
[brief] 127 N.J. at 165-166.  The Legislature later amended the MLUL to ensure the Sica balancing test included consideration of the second prong of the negative criteria.  See, e.g., Salt & Light Co. v. Willingboro, 423 N.J. Super. 282 (App. Div. 2011), certif. den. 210 N.J. 108 (2012).  Inherently beneficial uses are exempt from the enhanced standard of proof required for the second prong of the negative criteria under Medici, supra.  See Sica, supra, 127 N.J. at 160-161.  A.
[brief] The defendant was clearly stunned!  (Da 122)  On August 5, 2016, trial counsel in continuing the charade that he retained experts, had written to the [...] maintaining that [...] was a defense witness.  Trial counsel had also written to the Honorable [...], on September 8, 2016, listing [...] as the defense’s fingerprint expert.  (Da 122)  However, for some inexplicable reason, trial counsel never called a fingerprint expert on the defendant’s behalf.  The defendant’s family also paid trial counsel money to retain a DNA expert to address the issue that the gloves allegedly found were already “unsealed” when they were sent to the lab in May of 2009 for testing.  (Da 123)  However, trial counsel failed to call a DNA expert on the defendant’s behalf.  The false assurances by trial counsel that he retained the fingerprint expert, DNA expert, and had investigated the receipt/invoice of the defendant’s stay at the [...] in Charlotte, North Carolina at the time he was misidentified during surveillance significantly played a role in the defendant’s decision to go to trial.
[brief] ”  Ibid.  In State v. Gentry, our Supreme Court held that in deliberating on an essential element of robbery, use of force upon another, the jury must be unanimous that the defendant used force upon an identifiable victim during the course of a theft.  183 N.J. at 31-33.  The trial testimony in Gentry established that while attempting to steal items from a drug store, the defendant first knocked over a store employee and then kicked and punched the store manager who had grabbed his pants to stop him from fleeing.  Id. at 31.  During deliberations, the jury sent a note to the judge indicating that all jurors agreed that the defendant had knowingly “use[d] force upon another” within the meaning of the robbery statute, but one group of jurors believed that the defendant knowingly used force against the employee but not the manager, and the other group believed that the defendant knowingly used force against the manager but not the employee.  *Id.* at 31-32.  Notwithstanding this split on the identity of the person against whom force was used, the trial court concluded that the jurors were unanimous on the force element and accepted a guilty verdict.  *Ibid.*  The Supreme Court disagreed and reversed, concluding that the identity of the person against whom defendant used force was a critical element of the offense, and the jury had to agree on whom that person was.  *Id.*  33.  *Gentry* stands for the proposition that where the State introduces evidence that the defendant committed different acts against different victims, the jury must unanimously agree on which specific acts satisfy the elements of a conviction.
[brief] A person convicted of manufacturing, distributing, dispensing or possessing with intent to distribute any dangerous substance or controlled substance analog under N.J.S.2C:35-5, of maintaining or operating a controlled dangerous substance production facility under N.J.S. 2C:35-4, of employing a juvenile in a drug distribution scheme under N.J.S. 2C:35-6, leader of a narcotics trafficking network under N.J.S. 2C:35-3, or of distributing, dispensing or possessing with intent to distribute on or near school property or buses under section 1 of P.L.1987, c.101 (C.2C:35-7), who has been previously convicted of manufacturing, distributing, dispensing or possessing with intent to distribute a controlled dangerous substance or controlled substance analog, shall upon application of the prosecuting attorney be sentenced by the court to an extended term as authorized by subsection c. of N.J.S. 2C:43-7, notwithstanding that extended terms are ordinarily discretionary with the court.  The term of imprisonment shall, except as may be provided in N.J.S.2C:35-12, include the imposition of a minimum term.  The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater, not less than seven years if the person is convicted of a violation of N.J.S. 2C:35-6, or 18 months in the case of a fourth degree crime, during which the defendant shall be ineligible for parole.
[brief] Moreover, [...]’s reading of what little information the barebones advertisement *did* contain is patently unreasonable.  [...]’s website advertised the four-year dual degree as merely an “opportunity. ”  By its literal terms, the advertisement did not claim that the “opportunity” was automatic – nor did it purport to define when, how, or in what fashion the opportunity would be manifested.  According to *The American Heritage Dictionary of the English Language*, “opportunity” is defined as follows:  A favorable or advantageous combination of circumstances; suitable occasion of time . . .  **usage**:  Opportunity is often followed by *for*, *of*, or *to* as in *opportunity for* (or *of*) writing, opportunity to write.  *The American Heritage Dictionary of the English Language*. (Houghton Mifflin Co., copyright 1980).  This argument of school advertisement-as-contract came up – and was subsequently struck down – during the COVID-19 pandemic, in which schools across the country had to eliminate (or make virtual) *entire programs* after admitting students into those programs.
[brief] Plaintiffs have adequately pleaded that the illegal, large, makeshift liquor concession stand on the Subject Premises was a defect in the physical condition of the Subject Premises, causing a dangerous condition on public property, for which Defendants could be liable under the TCA.  This Court should respectfully reverse the lower court’s grant of dismissal of Plaintiffs’ Complaint with prejudice and remand the matter back to the lower court for further proceedings.
[brief] This Court reviews a grant of summary judgment de novo, applying the same standard governing the trial court under R. 4:46.  See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007).  Generally, it must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party."  Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c).  Summary judgment is inappropriate if an issue of material fact genuinely exists.  See R. 4:46-2(c).  An issue of fact is genuine if the evidence submitted on the motion, together with all legitimate inferences favoring the non-moving party, is not so one-sided that it requires submitting the issue to a jury.  Summary judgment must also be denied when analyzing a question of fact requires a credibility determination.  See Parks v. Rogers, 176 N.J. 491, 502 (2003).  Moreover, a summary judgment motion should be denied when an action or defense requires determination of a state of mind or intent.  See Wilson v. Amerada Hess, 168 N.J. 236, 253-54 (2001).  Accordingly, "[a]s a general rule, summary judgment is not a proper vehicle for resolving claims of employment discrimination which often turn on an employer’s motivation and intent. ”  Miller v. Beneficial Mgmt. Corp., 855 F. Supp. 691, 707 (D.N.J. 1994).
[brief] (Pa852 - Pa853)  Counsel for Applicants was extremely vocal in his request that the motion judge defer the decision on Appellants’ motion and to move forward to decide all issues together in a singular hearing.  The rationale was that it would be more efficient in the event the Appellate Division overturned the denial Appellant’s motion.  In that context, it becomes apparent that the motion judge attempted to decide those issues to support the decision to deny the motion.  However, such decisions were made without the entire record or arguments from the parties and were not ripe.  In fact, the motion judge rightly states:  “As the request for an extension of time for filing complaint in the present matter is denied, the remainder of plaintiffs’ arguments are moot. ”  (Pa835)  This was found at the top of Page 8 of a 13-page statement of reasons.  There is no need to belabor this point as the majority of the last six pages relate to matters previously addressed above.  However, it should be noted that the video of the May 23 hearing (Pa837) was not available until sometime after the August and September meeting and was not available to either party.  As far as mischief at the August and September 2022 hearings, Appellants are seeking leave to introduce that evidence, so that evidence has yet to be produced.  There are many others.  **CONCLUSION**
[brief] *See Deutsche Bank Nat. Tr. Co. v. Russo*, 429 N.J. Super. 91, 101–02 (N.J. Super. App. Div. 2012) (citation and quotation omitted) (standing is a judicially constructed element of justiciability.).  New Jersey courts require that an Appellant have standing to invoke judicial review.  *Id*; *New Jersey Dep’t of Env’t Prot. v. Exxon Mobil Corp.*, 453 N.J. Super. 272, 291–92 (App. Div. 2018).  Whether a party has standing is a “threshold justiciability determination” that must be made by the court and that is not subject to “waiver” or “consent. ”  *Id.*  “[A] lack of standing ... precludes a court from entertaining any of the substantive issues for determination. ”  *EnviroFinance Grp. v. Envtl. Barrier Co.*, 440 N.J. Super. 325, 339 (App. Div. 2015) (citations omitted).  To have standing in New Jersey, a plaintiff must “present a sufficient stake in the outcome of the litigation, a real adverseness with respect to the subject matter, and a substantial likelihood that the party will suffer harm in the event of an unfavorable decision.
[brief] POINT II  THE COURT ERRED IN ADMITTING IMPLIED HEARSAY FROM NON-TESTIFYING WITNESSES THAT IMPLICATED DEFENDANT.  In his initial brief, [...] argued that the trial court erred in admitting implied hearsay from non-testifying witnesses that implicated [...] in the shooting.  (Db 31-37)  Specifically: (1) [...] testified that he spoke to “family members at the hospital,” and that after leaving the hospital, he had “a nickname” — “[...];” (8T 168-4 to 9, 168-12 to 18); and (2) [...] testified that after meeting with Brown, - He had been “provided with a possible name to look into as a potential suspect”: “[...]” (8T 34-9 to 17); - He had “a general description of who this [...] was”: “Blue eyes, brown skin, dark brown skin,” (8T 34-19 to 35-7); - He was “provided with another name after meeting with [...],” that that name was “Zahir [...],” and was given a physical description of [...]: “About 5’6”, dark brown skin, blue eyes” (8T 35-8 to 19); - He used this description of [...] to prepare the photo array shown to [...].  (8T 49-4 to 11)  In response, the State claims that any error with [...]’s testimony was invited by defense counsel, and that there was no error with [...]’s testimony because he said he spoke to [...].  (Sb 19-23)  The State entirely failed to respond to the error of permitting [...] to testify as to how and why he assembled the photo array.  The State’s arguments should be rejected and will be addressed in turn.  First, [...]’s testimony was not invited error.
[brief] Personal Contact.  [...] approached the sedan from the passenger side.  7T40-14/16.  [...] was the driver (7T20-14/25), and his wife was a passenger (7T23-16/18).  [...] immediately smelled what he called “an odor of alcoholic beverage” (7T23-14/15, 40-17/19), using the term he learned in the academy and later training.  7T40-20/22.  From this odor, [...] could not tell whether, what, when, or how much [...] drank.  7T40-23/41-12.  Although drinking alcohol and driving is not illegal (7T41-21/42-14), the odor raised [...]’s suspicions (7T41-  In response to his question, [...] gave an answer consistent with the odor.  Asked where he was coming from, [...] said he was on his way from [...] in the north end of [...] to his home in [...].  [...] was nonchalant, swaying, a little rigid, relaxed.  He said he did not have his license, but [...] could not recall anything else about documents.  Based on the car going through the red light, the odor, and what [...] perceived as a slight delay in answering questions, he decided to “play it safe” by running [...] through SFST.  [...] tilted his video camera to capture SFST on an MVR.  Exit.
[brief] For the foregoing reasons, Plaintiff respectfully submits that the trial court’s denial of its OTSC be reversed, and the settlement reached between the parties and memorialized on the record on December 20, 2022 be enforced.  Respectfully submitted, [...]  Attorneys for Plaintiff-Appellant [...] By:/s/ [...]  [...], Esq By:/s/ [...]  [...], Esq  Dated: September 6, 2023  RESPONDENT
[brief] (Da 112-13; 3T 5-5 to 7-2)  The detectives also already believed that the man running west at 2:12 a.m. was the “same male that we see walking around,” who [...]’s father already identified.  (1T 78-11 to 15) post had “put[] [his] life in jeopardy. ”  (1T 29-18 to 48-4)  [...] tried to deny their theory, but [...] continuously cut him off; waived his hands at him; slapped the table; shouted, “No, no, no”; “Whoa, whoa, whoa”; and “Timeout. Timeout. Timeout”; and swore at him and accused him of lying, stating, “Now you gonna bullsh*t me,” “that’s bullsh*t,” and “don’t sit here and lie” -- until [...] eventually agreed.  (1T 30-7 to 48-4; Da 109, 00:45:45 to 00:58:48)  At that point, the detectives announced “a problem here” and began to empathize with his plight, stating that [...] was “totally wrong” for exposing him and had affected his father’s affection and endangered his family.
[brief] The trial court dismissed plaintiff’s entire 5 Counts 309 paragraphs hybrid prerogative writ/declaratory judgment/civil rights act violations complaint without providing plaintiff limited and expedited discovery on all his “colorable” civil rights act violation claims and causes of actions.  In their joint opposition brief, defendants assert a disingenuous “shield and sword” argument.  Defendants opposed and denied plaintiff expedited and limited discovery.  But on the other hand, defendants usurped the trial court’s evidentiary umpire function and declared plaintiff’s summary judgment counterstatement of material facts to be not relevant and lacking any evidentiary support.  In addition, the trial court avoided the substantive merits of plaintiff’s civil rights act violation claims.  The trial court never issued specific Rule 1:7-4(a) findings of fact and conclusions of law relating to each of plaintiff’s civil rights act violation counts, claims and remedies.