ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Moreover, In re Resolution of State Com. of Investigation, supra—cited by Veras—addressed and analyzed a statute that explicitly disallowed a private right of action, i.e., N.J.S.A. 52:9M-15(a).  See In re Resolution of State Com. of Investigation, 108 N.J. at 36-37.  In re Resolution did not analyze an implied private right of action because there was no need to—improper disclosures of information related to investigations into crime by the [...] ("[...]") were and are explicitly within the purview of the [...], as per the black letter language of the statute.  *In re Resolution* supports *Veras*'s reasoning that, generally, when there are extensive state enforcement mechanisms included in a statute, that statute rarely also includes a private right of action.
[brief] ”  Id. at 233.  The Court noted the DME in a part of the adversarial process where a party is “asked extraordinarily personal questions about [his] mental health without [his] consent. ”  Id. at 233-34.  The Court explained, “especially for plaintiffs with alleged cognitive limitations, psychological impairments, or language barriers, a DME reflects a profound power imbalance between the plaintiff and a medical professional with long experience in the examination of patients and participation in court proceedings. ”  *Id.* at 233.  The Court noted if there is a dispute about what occurred at trial, there is a “power imbalance” between the witness who has testified hundreds of times and the plaintiff with a cognitive disability or a language barrier.  *Id.*  In requiring the defendant to show good cause as to why to limit a recording or third-party observation, the Court explained “trial courts must balance both the need for an accurate record and the imbalance of power between a medical professional and a patient against any valid concerns regarding the expert’s ability to conduct an accurate assessment of the patient’s condition with a recording or third-party observer. ”  *Id.* at 238.  The Court further held, “[t]he plaintiff’s age, ability to communicate, cognitive limitations, psychological impairments, inexperience with the legal system, and language barriers are all relevant to this determination; other factors may be as well. ”  *Id.* at 238.  The Court further noted that as to the instant *[...]* matter, “for a person with limited English proficiency who will already be accompanied by an interpreter, despite the trial court’s holding regarding [...]-Robalino, it is not immediately obvious how an unobtrusive recording device would call the validity of the examination into question in a way that the interpreter would not. ”  *Id.* at 238-39.  Finally, the Court addressed concerns over the 2016 ABN Policy Statement.
[directive] NJLEARN through the on-line available training computer/web-based the of authority under the operating agency enforcement law every of executive chief  The officer sworn every ensure that to necessary steps such shall take Jersey of New State the of laws patrol to assigned officers supervises directly who officer sworn every duty, patrol to assigned related of or circumstances the investigating include duties whose officer sworn every duty, and pursuant to training developed computer/web-based the receives incident violence domestic to a being program training of the days 60 within training receive shall officers
[brief] DEFENDANTS’ ARBITRATION CLAUSE PROVIDES ONLY FOR ARBITRATION “DURING THE WARRANTY PERIOD” WHICH HAS NOT YET OCCURRED  The SPA arbitration clause provides for “binding arbitration during the warranty period. ”  (emphasis added.)  Separate from the compelling Atalese deficiency, there is no obligation to arbitrate except “during the warranty period. ”  Since there was no closing, no “warranty period” has commenced and, therefore, no obligation to arbitrate has commenced.  In addition, a reasonable consumer could understand such terminology as limiting the arbitration clause to claims covered by a warranty.  Indeed, the SPA arbitration clause immediately follows Section 12 of the SPA which sets forth which limited warranties are being given by the defendants.  None of those warranties cover the false advertising of the square footage of the units, and there is no warranty period associated with plaintiffs’ claims herein.  That is a very fair reading of the language.  Moreover, since the arbitration clause was drafted by defendants and their counsel, it should be construed against them.  Also, on this motion for summary judgment by defendants, this Court must consider the language of the arbitration clause in the light most favorable to plaintiffs.  Kleine v. Emeritus at Emerson, supra, 445 N.J. Super at 152.  At a minimum, the arbitration clause is confusing and does not tell plaintiffs in plain language that their claims are even covered by the arbitration clause, in addition to its Atalese flaws.  Indeed, in Atalese, one of the reasons that the Court held the arbitration clause to be unenforceable was that it was not “written in plain language that would be clear and understandable to the average consumer. ”  219 N.J. at 446.  In Kernahan, the “confusing sentence order” in the purported arbitration clause also was one of the reasons given for the Court finding no mutual assent to arbitrate.  236 N.J. at 327.  CONCLUSION
[brief] First, the lower court found [...], was a proper guardian, as defined in Presha, State in the Interest of A.S., 203 N.J. 131 (2010), State in the Interest of S.H., 61 N.J. 108 (1972), and State in the Interest of Carlo, 48 N.J. 224 (1966).  [...] rejected defendant’s contention that [...], was conflicted from serving as a guardian because he witnessed defendant’s criminal conduct, and therefore could be considered a victim, and because he was a relative of defendant’s victims, citing to as persuasive the factually analogous out-of-state precedent State v. Whisenant, 711 N.E.2d 1016 (Ohio Ct. App.), appeal not allowed, 698 N.E.2d 1005 (Ohio 1998) and In Re I.F., 20 Cal.App.5th 735 (Cal. Ct. App. 2018).  To that end, the judge also noted that those relatives proffered by defendant as proper alternative guardians, defendant’s aunt and uncle and stepbrother, were factually similarly situated to [...]
[brief] *We call for the immediate firing of the [...] teacher who pulled off the headscarf of a young Muslim student.  Anything less is an insult to the students and parents of [...], NJ.  Forcefully stripping off the religious headscarf of a Muslim girl is not only exceptionally disrespectful behavior, but also a humiliating and traumatic experience.*  | | | (Da 020-21)  |  *Muslim students already deal with bullying from peers, it’s unthinkable that a teacher would add to their distress.  Islamophobia in our public schools must be addressed in NJ.  Classrooms are a place for students to feel safe and welcome, not fear practicing their faith.* | | Oct. 8, 2021 at | [...], Am. Compl. ¶¶ 56 | **[...] Statement #3** | | | - 57 (Da 021)  | *Our children must be protected from anti-Muslim bigotry and abuse at school.  The teacher who pulled a second grader’s hijab off in class must be fired immediately.*  #Islamophobia [...] [...] | | Oct. 8, 2021 at | [...] NJ, Am. Compl. ¶ | **[...] NJ Statement #1** | | | 58 (Da 021-22)  | *We call for the immediate firing of the [...] teacher who pulled off the headscarf of a young Muslim student.
[brief] State v. Gideon, 244 N.J. 538, 560-561 (2021); State v. L.A., 433 N.J. Super. 1, 17 (App. Div. 2013).  Having said that, although the prejudice prong of the Strickland/Fritz test is the “far more difficult” one to establish, the burden of proof to show that the attorney’s performance affected the outcome of the proceeding is less than a preponderance of the evidence.  Gideon, 244 N.J. at 550 (quoting State v. Preciose, 129 N.J. 451, 463 (1992)).  Before articulating the burden of proof on a defendant to articulate the prejudice prong, Strickland rejected the more rigorous “outcome-determinative” approach applied to motions for a new trial based upon newly discovered evidence.  *Strickland*, 466 U.S. at 693-694.  *Strickland* instructed "that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case."  *Id.* at 693.  *Strickland* expounded that "[t]he result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome."  *Id.* at 694.  Consequently, proof of a "reasonable probability" that defendant was prejudiced by his trial attorney's deficient performance is "somewhat lower" than that required under a preponderance of the evidence standard.  *Ibid.*  In analyzing the prejudice prong of the *Strickland/Fritz* test, the PCR judge erred where he assessed the credibility of defendant's two alibi witnesses in terms of the weight a jury would have ascribed to it, (19T 7-14 to 23, 9-3 to 10-9), without comparing it to the strength of the State's case.  *L.A.*, 433 N.J. Super. at 15-16. ("the assessment of an absent witness's credibility is not an end in itself").  Unlike the PCR judge, the State in its opposition brief recognized the need to compare the credibility of the alibi witnesses to the strength of its case.  *(Pb 31).*  Nevertheless, even the State did not assert its proofs were overwhelming.  *(Pb 31)*(its "proofs against defendant were significant").  In contrast, defendant maintained that "the State's evidence was not overwhelming,” especially given [...]’ recantation at trial and the absence of any forensic or physical proofs.  (Db 28).  As a result of the PCR judge’s failure to weigh the credibility of the claimed alibi witnesses against the strength of the State’s case, the debate between the State and defendant in their respective briefs regarding the weight of the State’s proofs at trial requires this court to expand its traditional scope of review.  CONCLUSION
[brief] In Johnson, the defendant was an officer with the [...], and was required to carry a GPS device called a “Pocket Cop,” while on duty.  The “Pocket Cop” device “records GPS data concerning its location and movements,” and allows officers’ supervisors to track where they are at any particular moment, including the duration of time spent on any specific call.  Id. at 521.  At defendant’s trial for the sexual assault of a woman with whom he came into contact while on duty, the State introduced GPS information from his “Pocket Cop” that demonstrated that the defendant had spent 14 minutes in the vicinity of the victim’s friend’s home and 37 minutes in the vicinity of the victim’s residence, where she testified the sexual assault had occurred.
[brief] (Pa89).  The resolutions specifically state “this contract is awarded without competitive bidding as a ‘professional service’ under the provisions of said Local Public Contracts Law .  . . .” (Pa144-156).  These resolutions committed to writing demonstrated [...]’ desire to seek a professional service provider for legal services, and it awarded [...] professional service contracts under the “no bid” rules of the LPCL under N.J.S.A. 43:11A-5.  *Ibid.*  Accordingly, [...] cannot satisfy his burden of proving the Board’s determination is unreasonable, when his position is in direct contradiction of the plain language of the resolutions, published in the newspaper, and lawfully enacted in accordance with N.J.S.A. 40A:11-5.  Critically, [...]’s work as a legal service provider was open to the general public, which is undoubtedly the exact type of position the Legislature intended to exclude from PERS in enacting the Chapter 92 reforms.
[brief] A party cannot defeat summary judgment by merely making conclusory, self-serving statements.  *Puder v. Buechal*, 183 N.J. 428, 440–41 (2005) (“conclusory and self-serving assertions” do not defeat summary judgment); *Triffin v. Somerset Valley Bank*, 343 N.J. Super. 73, 87 (App. Div. 2001) (“self-interested and conclusory” statements do not create genuine dispute of material fact).  Nor can summary judgment be defeated where the non-moving party offers “only facts which are immaterial or of an insubstantial nature, . . . [f]anciful, frivolous, gauzy or merely suspicious. ”  *Brill*, 142 N.J. at 529 (internal quotes and citation omitted).  Likewise, a plaintiff’s speculation does not meet the evidentiary standard for summary judgment.  See *Merchs. Exp. Money Order Co. v. Sun Nat’l Bank*, 374 N.J. Super. 556, 563 (App. Div. 2005); *Mandel v. UBS/PaineWebber Inc.*, 373 N.J. Super. 55, 79 (App. Div. 2004) (neither perception, speculation or suspicion can support a cause of action).  As the trial court correctly recognized, Plaintiff’s opposition to [...]’s motion for summary judgment consisted of pure speculation concerning the cause of Plaintiff’s alleged slip and fall.  Here, in opposing [...]’s motion for summary judgment, Plaintiff could not produce any competent evidence that [...] was negligent regarding the alleged incident because there is no evidence at all to show anything done by [...] proximately caused plaintiff’s alleged injuries.  Plaintiff’s speculation, as well as his expert’s speculation, regarding causation, is not competent evidence.  Accordingly, as the trial court correctly ruled, summary judgment in favor of [...] was warranted.
[brief] And while [...] further testified that, based on the New York plates, he believed that [...] had traveled to and from New York with [...], this belief was also highly speculative. \(^8\) (4T 18-5 to 12)  Simply put, police knew far too little about [...] to justify a traffic stop.  Without any objective indicia of criminality, the warrantless stop was unlawful, and all evidence seized from [...]’s car must be suppressed.  *U.S. Const.* amends. IV, XIV; *N.J. Const.* art. 1, para. 7; *Wong Sun*, 371 U.S. at 484; *State v. Smith*, 251 N.J. 244, 263 (2022).
[brief] Early in 2023 the appellant became the resident care provider for his Mother, who now at age 92 (1) could not walk without aids, (2) no longer operating a car, and (3) depended mainly on the appellant for transportation.  Appellant regularly had to find a vacant street parking space and have his mother walk with walking frame to and from such remote location, just to be able to access in and out of car, because (1) his driveway was too narrow (2) his house was two doors away from about 70 unit apartment complex, residents of which regularly used his street front parking space.  This posed eminent and undue risk of slipped and fell and bodily harm for the Mother, since she regularly had to do the same even in adverse weather.  Appellant was also a permanently disabled person (Pa2).  In a nutshell__ in 2023 the absence of a reserved handicapped parking space manifested to harms and hardships upon the appellant.
[brief] (13T9-24 to 13T10-3).  After the shooting on the morning of March 23, there was no evidence a call to 9-1-1 was made from the phone.  (17T102-11 to 22).  The examination also revealed that the IMEI number for the seized cell phone did not correspond to the IMEI number for cell phone calls found in [...] records for defendant’s cell number.  (13T18-12 to 19).  An IMEI number is a serial number assigned to a specific cell phone.  (13T16-2 to 3).  Each cell phone comes with a sim card, which can be removed and used in a different cell phone.  (13T16-3 to 10).  So, if a person takes the sim card from an Apple iPhone 11 and puts it into an Apple iPhone 13, the iPhone 13 would be using the same cell phone number.  (13T16-4 to 10).  So, the sim card can allow someone to transfer the use of a particular cell phone number to a different cell phone.  (13T16-16 to 18).  Police never recovered the firearm used in the shootings.
[brief] Ja013; 1T 7:19-23.  Although [...]’s SM Zone permitted warehouses and distribution centers, Plaintiff sought the following relief from the Board: (1) “(d)(6)” height variance to construct two structures at a height of 48 feet, when [...] limits building height to 30 feet in the SM Zone; (2) bulk variance to reduce the number of parking spaces from 1,496 to 589 (which was further reduced to 577 spots); (3) “(d)(1)” use variance to locate a portion of a driveway in the AG-portion of the Property (the application was later amended to move the driveway entirely into the SM Zone, and this variance request was withdrawn); and (4) preliminary site plan approval.
[brief] B.  A Deferential Standard Of Review Applies To An Order of Judgment In A Non-jury Trial [Issue Not Raised Below]  “Our courts have held that the findings on which [a non-jury trial judgment] is based should not be disturbed unless ‘* * * they are so wholly insupportable as to result in a denial of justice,’ and that the appellate court should exercise its original fact-finding jurisdiction sparingly and in none but a clear case where there is no doubt about the matter. ”  *Rova Farms Resort, Inc. v. Inv'rs Ins. Co.*, 65 N.J. 474, 483-84 (1974) (citation omitted).  “Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence.  It has otherwise been stated that ‘our appellate function is a limited one: we do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice. ”  *Id.* at 484.  In an appeal from a non-jury trial, appellate courts “give deference to the trial court that heard the witnesses, sifted the competing evidence, and made reasoned conclusions. ”  *Griepenburg v. Twp. of Ocean*, 220 N.J. 239, 254 (2015).  “Appellate courts owe deference to the trial court's credibility determinations as well because it has 'a better perspective than a reviewing court in evaluating the veracity of a witness. ’”  *C.R. v. M.T.*, 248 N.J. 428, 440 (2021) (internal citation omitted).  Here, the trial court’s findings and legal conclusions should not be disturbed because they are wholly supported by the facts in the record.
[brief] 70 N.J. 565 (1976), appeal dismd., 429 U.S. 1032, 97 S.Ct. 723, 50 L.Ed. 2d 744 (1977).  It is submitted that the analysis of due process and equal protection violations under the Fourteenth Amendment to the United States Constitution in Humane Society is not the same as a determination of whether there have been violations of the separation of powers and the distribution of legislative power under Art. III, Par. 1 and Art. IV, Sec. 1, Par. 1 of the New Jersey Constitution.  The Plaintiffs do not contend that their due process and equal protection rights (or for that matter the due process and equal protection rights of any interest group or individual) have been violated by exclusion from the Council in favor of a particular private organization such as the [...].  It is the Plaintiffs’ position that no private interest group should be delegated the power to effectively control a regulatory agency by designating the majority of the members of that agency so that the agency --- 2  The [...] even argues that Humane Society should be considered Stare decisis.
[brief] LEGAL ARGUMENT POINT  I BECAUSE [...] TWICE FABRICATED HIS TESTIMONY, ONLY TO FINALLY ADMIT THAT HE COULD NOT RECALL WHERE HE WAS LOCATED WHEN OBSERVING [...]’S ALLEGED MOTOR VEHICLE INFRACTION, ALL OF HIS TESTIMONY IS INCREDIBLE AND THE STATE CANNOT SUSTAIN ITS BURDEN OF PROOF THAT THIS WARRANTLESS STOP WAS LAWFUL (1T 7-11 through 30-5).
[brief] See Lesatz, 416 N.W.2d at 337; see also Manning, 442 S.E.2d at 785; S. Star, 872 S.E.2d at 909; Frank, 4 S.W.3d at 606.  Lesatz is especially analogous because the court there rejected a virtually identical class action claim arising out of a residential lease.  416 N.W.2d at 335.  The lease provided that the landlord would excuse the first month of rent “provided [the tenant] fully perform[s] all of the terms and conditions of his lease. ”  Id. at 336-37.  The lease further stated that if the tenant breached any terms of the lease, the excused “rent will be immediately due and payable. ”  Id. at 337.  The tenants breached the lease by vacating the property one month early, and the landlord demanded payment of the excused rent.  Ibid.  The tenants countered with a putative class action claim alleging that the excused rent provision constituted an unlawful penalty and, thereby, violated the Michigan Consumer Protection Act.  Id. at 336.  The trial court dismissed the tenant’s claim with prejudice, finding that the excused rent provision did not constitute a penalty.  Id. at 336-37.  Affirming the trial court’s finding that the provision “is not a penalty provision[,]” the Michigan Court of Appeals explained that (i) “the lease clearly provides that one year’s rent equals $4,800;” (ii) “[p]laintiffs enjoyed the first month without having to pay rent at that time;” (iii) “[h]ad plaintiffs stayed the entire term, defendants would have excused payment of that rent;” and (iv) “[i]t only became due when plaintiffs breached the lease.
[brief] Alternatively, as discussed above in the context of their fraud claim, the trial court’s express rulings in the Prior Action, that the direct and proximate cause of Appellants’ damages was their failure to pay rent to [...], bars this claim.  In dismissing the breach of confidentiality claim asserted against the [...] in the First Amended Complaint in the Prior Action, the trial court found that the Appellants’ losses were not related to any violation of the non-disclosure and non-circumvention provisions by the [...].  [Pa145].  Like Count 2 of the Complaint against [...] herein, Count 1 of the First Amended Complaint in the Prior Action asserted a breach of contract claim against the [...] for alleged violation of the NDA in utilizing information it acquired, including information relating to the Lease, for its own gain.  In dismissing this claim, the trial court found:  Therefore, the loss of the Property was the direct and proximate result of [Appellants’] failure to cure the default under the Lease with [...]….  [Appellants] cannot seek damages against a blameless third party simply because [...] signed an NDA.  [Appellants] do not establish the requisite causal link between a breach of the NDA and [Appellants’] default under the Lease and subsequent loss of their Solar Rights (emphasis added) [Pa145].
[brief] Finally, and equally inapposite, is the Cichetti case on which Appellee also relied, but in fact, the holding of Cichetti defeats Appellee’s summary judgment argument.  See Cicchetti v. Morris County Sheriff’s Office, 194 N.J. 563, 585 (2008).  The Cicchetti Court stated: “Our consideration of that carefully struck balance compels us to conclude that because plaintiff was not statutorily barred from the employment he sought in law enforcement, he was not prohibited from pursuing his workplace discrimination complaint. ”  Id. (emphasis added).  The Court further stated that whether that plaintiff would have lost his job once it was discovered, impacts the quantum of damages, but that it “may not be used to diminish an award of non-economic damages to an employee. ”  Id.  Accordingly, Cicchetti actually serves to defeat Appellee’s purported summary judgment argument.