ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] COUNTERSTATEMENT OF PROCEDURAL HISTORY ...........................................  1 COUNTERSTATEMENT OF FACTS ........................................................................  5  LEGAL ARGUMENT .................................................................................................  10  POINT I THE PCR COURT APPROPRIATELY DENIED DEFENDANT’S PETITION FOR POST-CONVICTION RELIEF  ........................................................................  10  A.  The PCR Court Correctly Found that a Third-Party Guilt Instruction Would Have Been Improper in this Case ..................................................................................  14  B.  Trial Counsel Was Not Ineffective for Failing to Call Defendant's Brother and Co-defendant [...] to Testify .......................................................................................  17  C.  Defendant Was Apprised of and Rejected All of the State's Plea Offers.  ..................................................................................  20  D.  Defendant Failed to Establish that His Motion for Consolidation Would Have Been Meritorious ..................................................  23 POINT II  THE DEFENDANT RECEIVED THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL ......................................................  26 POINT III  THERE IS NO CUMULATIVE ERROR...........................................  31 CONCLUSION ..................................................................................
[brief] But *Erlinger* reiterated that that exception is a “‘narrow exception’ permitting judges to find only ‘the fact of a prior conviction. ’”  *Id.* at 1853-54 (quoting *Alleyne v. United States*, 570 U.S. 99, 111 n.1 (2013)).  “Under that exception, a judge may ‘do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of. ’”
[brief] There would be nothing to equalize, or standard against which to equalize, in a cost-based approach.  B.  The “undisputed” capital expenditures  It is false that the capital expenditures are undisputed.  As relayed in [...]’s opening brief, the only documentary evidence presented by [...] concerning the expenditures was a certification from [...] dated 2017, purporting to relay how much [...] spent on the Unit fourteen years earlier when the building was renovated for the conversion to condominiums.  DA44-45.  [...] supplied no receipts, invoices, or any other documentary evidence and much of the expenditures were directly controverted by both [...] and [...]’s own expert.  1T74:2-75:1 ([...] testifying that the walls were not all removed from his kitchen, that it was not gutted, that there is only one bedroom in the apartment, and that he does not have central air); 5T65:4-13 ([...] testifying that no carpeting was put in); 1T53:22-23 (landlord’s expert testifying that the unit is a one bedroom with one bath).  The board properly excluded the capital expenditures.
[brief] For all these reasons, the Court should ➢ vacate in its entirety the $188,029 judgment in plaintiff’s favor on its contractual litigation claim, ➢ remand for a new chancery trial, before a new judge, on the [...]’ quiet title claim, and ➢ remand for a jury trial on defendants’ claims for fraud, slander of title, and intentional infliction of emotional distress.  ➢ reverse the denial of the [...]’ motion to amend their claims to add [...] as a third party defendant.  Respectfully submitted, /s/ [...] [...]  Counsel for Appellants, Ralph and [...]  Dated: November 8, 2023  SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION DOCKET NO. [...]  WELLS FARGO BANK, N.A.  AS TRUSTEE FOR [...], ASSET-BACKED PASS-THROUGH CERTIFICATES SERIES WHQ2, PLAINTIFF-RESPONDENT, V. RALPH SCHIANO AND ELEANOR SCHIANO, DEFENDANTS-APPELLANTS, V. WELLS FARGO BANK, N.A., AS TRUSTEE FOR [...]  ASSET BACKED  PASS-THROUGH CERTIFICATES SERIES 2004-WHQ2 [...], SUBSIDIARY OF [...], AND SUCCESSOR TO [...] ([...]), THIRD-PARTY DEFENDANTS/RESPONDENTS.  On appeal from a final order entered in the Superior Court of New Jersey, Law and Chancery Divisions, Passaic County, Docket Nos. [...], [...]; Hon. [...], J.S.C.; Hon. [...], J.S.C.  REPLY BRIEF OF APPELLANTS, RALPH SCHIANO AND ELEANOR SCHIANO
[brief] IN THE SUPERIOR COURT OF NEW JERSEY APPELLATE  DIVISION  Amended and Filed: September 18, 2024  DOCKET No: [...]  [...], AS ADMINISTRATOR  AD PROSEQUENDUM OF THE ESTATE OF [...], DECEASED, Plaintiff/Appellant, v. [...]; [...]; JOHN DOE #1-10 AND ABC CORP. #1-10,, Defendants/Respondents  On appeal from: SUPERIOR COURT OF NEW JERSEY LAW  DIVISION  CUMBERLAND COUNTY  Docket No. [...]  Sat Below: Hon. [...], J.S.C.  BRIEF AND APPENDIX OF RESPONDENTS, [...] AND [...]  [...]  [...], Esq.  N.J.  Id: 012052007  [...]  [...], Esquire N.J.  Id: 002002002  Email: [...]  15000 Midlantic Drive, Suite 200 P.O. Box 5429  Mount Laurel, NJ 08054 [...]  Attorneys for Defendants/Respondents, Preferred Care At Cumberland Nursing And Rehabilitation And Cumberland Operator, LLC
[brief] In Winston, the applicant had applied for and been denied a permit to purchase a handgun, and challenged that denial as unconstitutional on the ground that he would have been eligible to possess a firearm under New York law.  Id. at 3.  Here, defendant never applied for a NJ Carry Permit; instead, she proceeded to carry a handgun in the State without one in violation of N.J.S.A. 2C:39-5(b)(1), and now claims that New Jersey cannot prosecute her for that violation because she can carry a handgun in Pennsylvania on account of her PA Carry License.
[brief] #  TABLE OF AUTHORITIES  ## Federal Cases **Lomando v. United States**, 667 *F.3d* 363 (3d Cir. 2011) ..........19, 20 **Natale v. Camden County Corr. Facility**, 318 *F.3d* 575 (3d Cir. 2003)  ..................................................10  ## New Jersey State Cases **Baskin v P.C. Richard & Son, LLC**, 246 *N.J.* 157 (2021)  ...........10  **Cornblatt v. Barow**, 153 *N.J.* 218 (1988)  .............................11  **C.V. v. Waterford Twp. Bd. of Educ.**, 255 *N.J.* 289 (2023)  .......10  **Ferreira v. Rancocas Orthopedic Assoc.**, 178 *N.J.* 144 (2003)...23, 24 **Nicholas v. Mynster**, 213 *N.J.* 463 (2013) ............................2, 8, 9, 12, 16, 17, 18, 19, 20, 21, 22, 23, 24
[directive] Investigative accounting techniques may show that or unlawful& acquired income was used infiltrate purchase a to to business or indirectly acquire other apparently legitimate property.  of  Thus, demonstration of a connection between the proceeds crime of and property would enable the forfeiture that asset.  Under these of circumstances, the law enforcement agency's identification the ' or assets business as an ultimate product of criminal activity could in a of significantly expand the value forfeiture particular case and may be appropriately rewarded.  in  The manpower expended pursuing case, including overtime the 4. costs:  Manpower expenditures provide a reasonable indication of a enforcement agency's pursuing a case, and thus its efforts in law contribution the overall law enforcement effort-  It will undoubtedly to in be difficult impossible be completely accurate, however, or to evaluating this since officers will rarely work on only one case.  cost, 5. in law enforcement agency actively participates and contributes The or personnel other resources to a multi-jurisdictional task force.
[brief] ”  Not only does this provision not go to the unamplified voices of family members speaking, shouting, would have to be excessive to be considered a nuisance under this Ordinance.  The trial court also takes issue with the language of §146-7(p) “Other noise”, however this section is also limited by the clear terms of the Ordinance to effectuate the goal of prohibiting noise nuisances.  Da113  Of importance to this section is the qualifying word “continuous” which is specifically defined in the Ordinance and the word “unreasonably. ”  While the trial court seems to opine that shouting children playing in a swimming pool or jumping on a trampoline would be prohibited noise nuisances under the Ordinance, the language clearly reads otherwise.
[directive] Triage Team  In addition to the triage officer, the triage team should also consist of a nurse preferably with past experience in caring for patients in a critical care unit including, but not limited to, an ICU, CCU, PACU, SICU, ED) (even if no longer clinically active), and one administrative staff member who will conduct data-gathering activities, documentation and record keeping, and assistance liaising with a hospital Command Center or bed management.  The staff member must be provided with appropriate computer and IT support to maintain updated databases of patient priority levels and scarce resource usage (total numbers, location, and type).  The role of triage team members is to provide information to the triage officer and to help facilitate and support and document the decision-making process.  A representative from hospital administration should also be linked to the team, in order to supervise maintenance of accurate records of triage scores and to serve as a liaison with hospital leadership.  The triage officer and team members should function in shifts lasting no longer than 13 hours (to enable 30 minutes of overlap and handoffs on each end).  Therefore, there should be two shifts per day to fully staff the triage function.  Team decisions and supporting documentation should be reported daily to appropriate hospital leadership and incident command.  Facilities should provide training to the triage teams and hospital/system decision-makers and health care staff in advance of implementation of adopted allocation policies.
[brief] After all, no one ever saw the phantom silicone particulate in Plaintiff’s eye, and her experts admit they could not say with any certainty it was there.  (Da0047, pp. 50-52; Da0150, pp. 100, 102, 113)  The evidence actually supports the contrary finding: no “reasonable man could find that a defect existed,” Scanlon, 65 N.J. at 590 n.1, where the unrefuted evidence demonstrates only a 2.2% possibility that a product from the subject lot had the defect.  Brill, 142 N.J. at 541 (“To send a case to trial, knowing that a rational jury can reach but one conclusion, is indeed ‘worthless’ and will ‘serve no useful purpose. ’”); Jakubowski, 42 N.J. at 182 (requiring “proof that weighs heavier than mere surmise or conjecture” that the plaintiff’s injuries resulted from a defect in the product).  In fact, a truly rational factfinder could conclude only the opposite.  2.
[brief] (Aa1135; Aa1176).  With respect to fiscal management, in the years following 2008-09, [...] assumed authority over budget planning and approval, fiscal oversight, and compliance with State and federal requirements.  (Aa1135; Aa1176).  The internal audit team, established to monitor the District’s business functions and report its findings to the Commissioner, was disbanded.  (Aa1176); see also N.J.S.A. 18A:7A-41 (establishing an internal audit team within a school district under full State intervention).  The District also continued to make steady gains in instruction and student achievement.
[directive] Offenses severity. of degrees during the firearm of possession a the to -5(c), 2C:39-5(b), N.J.S.A. firearm, imperative it Accordingly, is 2C:39-4.1(a).  N.J.S.A. crimes, certain of commission given in any involved circumstances relevant all evaluate closely prosecutors that complaint- apply fora whether to (e.g., determinations critical making when case presumption whether assessing a When detention).
[brief] [...] (“[...]”) was working for [...] and arrived at defendant’s property to spray pesticides for ticks, fleas and mosquitos.  (2T:58-22 to 24; 62-21 to 24).  When [...] first approached the backyard, he waited two or three minutes for the defendant to put her dogs back inside.  (2T:63-16 to 25).  [...] then entered the backyard and began spraying pesticides when he noticed the two dogs running at full speed toward him.  (2T:65-1 to 10).  One dog stopped running and began barking, and the second dog, [...], bit [...] on his right leg.  (2T:67-5 to 12).  [...] managed to escape from [...] and hopped over the defendant’s fence.  (2T:67-23 to 24).  When the defendant approached [...], she was not concerned about his injuries, but instead stated that it was his fault and that he should have waited.  (2T:68-1 to 7).  [...] was treated at the [...] and received a rabies shot and a few stitches.  (2T:69-3 to 13).  [...] testified that he still has teeth marks on his leg, and sporadically experiences muscle pain.  (2T:67-15 to 17; 69-21 to 70-8).  As a result of the September 12, 2022, incident involving [...], the Animal Control Officer of [...] issued [...] for a potentially dangerous dog in violation of N.J.S.A. 4:19-23 and [...]; and “dog at large” in violation of [...] Ordinance 6-5.
[brief] Even if this Court were to agree with plaintiffs’ contention that Burt is no longer viable, the appropriate solution is a new trial with adequate notice to all parties.  As discussed above, Burt has not been abrogated or overruled by the appellate courts in New Jersey, and its logical underpinnings remain sound.  Thus, the proper outcome in this appeal is straightforward: a reversal of the trial court’s judgment order, with instructions to enter [...]’s judgment order reflecting the proper molding to 60% of the award.  However, if this Court were to conclude that Burt is inapplicable to the facts of this matter, then the entire trial was tainted, with the jury being incorrectly instructed and [...] being deprived of the opportunity to defend the allegations which resulted in a 40% allocation against him.
[brief] [...]’s movement coupled with her failure to signal until she had already crossed into the adjacent lane give rise to reasonable suspicion that she had not intended her vehicle to change lanes.  And [...]’s failure to look into her rearview mirror until she was actually “swerv[ing]” into the right lane could support a violation of the statute’s second clause since she did not ascertain whether the lane change could be made safely “before conducting [the] lane change. ”  Regis, 208 N.J. at 449 (emphasis added).  Bearing on the second clause, there was another vehicle—the police car—and other traffic in the vicinity at the time she changed lanes.  Thus, the officers’ credible testimony supported an objectively reasonable basis to stop [...] for a violation of N.J.S.A. 39:4-88(b) even though she was not ticketed for this infraction and the motion judge did not address this statute.
[brief] Just as the State Policy is rationally limited to State employee workplaces, its extension beyond a typical State Workplace is limited to places where State business is being conducted or discussed.  To the extent the State Policy addresses “persons doing business with the State,” it does so in the context of such persons engaging in allegedly harassing conduct occurring “in the workplace. ”  N.J.A.C. 4A:7-3.1(a)1.  By holding, in this case, that [...]’s EEO office had jurisdiction to investigation Complainant’s allegations about conduct arising out of a union election at the local union’s office the [...] arbitrarily conflated “union business” with “State business.
[brief] R. 4:49-2.  The proper object of such a motion is to correct a court’s error or oversight, and not to “re-argue [a] motion that has already been heard for the purpose of taking the proverbial second bite of the apple. ”  State v. Fitzsimmons, 286 N.J. Super. 141, 147 (App. Div. 1995), certif granted, remanded on other grounds, 143 N.J. 482 (1996).  A motion based on new legal arguments that were not presented to the court in the underlying motion is properly denied.  Medina v. Pitta, 442 N.J. Super. 1, 18 (App. Div.) certify. den. 223 N.J. 555 (2015).  In this case, the Defendant’s second motion for reconsideration was indisputably untimely since the motion was filed four (4) years after the final judgment, three (3) years after the court denied his first motion to vacate final judgment and first motion for reconsideration, and nine (9) months after the Appellate Division affirmed the order denying his motion to vacate final judgment and the order denying his first motion for reconsideration.
[brief] Plaintiffs named one proposed expert and served that one proposed expert’s report, being an Appraisal by [...].  Pa281 et seq.  The Appraisal simply *assumed* that the [...] would have been approved for use by six (6) tenants, and then compared its value as such to the price received by [...] when the [...] was sold. \(^4\)  By Opinion and Order entered September 29, 2020, the court held that the appraisal report did not address whether the [...] would have been approved by the Zoning Board for multiple tenancies, and that an appropriate expert report would be needed to answer that question.  The court also held that the question of [...]’s fault for the alleged grading error required expert proof.
[brief] In that same vein, to suggest the jurors would listen to the State’s summation and assume – on their own, as defendant suggests – that the State was really “bolstering” the testimony of [...] to inflate his credibility is pure speculation, at best.  Then, to further suggest that “any juror whose observations based on the videos had differed from Raynor’s would have been inclined to question the accuracy of his own observations and substitute Raynor’s for them” is nonsensical.  (Db 17-18).  It is simply not believable that the jurors would disregard what they saw with their own eyes on the video and instead, rely only on [...]’s testimony.
[brief] ¹  The transcripts of the proceedings will be referred to as follows:  | | | |---|---| | 1T = 12/20/21 | 10T = 2/15/22 | | 2T = 1/18/22 | 11T = 2/16/22 | | 3T = 1/20/22 | 12T = 2/17/22 | | 4T = 1/25/22 | 13T = 2/22/22 | | 5T = 1/26/22 | 14T = 2/23/22 | | 6T = 1/27/22 | 15T = 2/24/22 | | 7T = 2/08/22 | 16T = 3/01/22 | | 8T = 2/09/22 | 17T = 3/02/22 | | 9T = 2/10/22 | 18T = 3/3/22 | | 19T = 3/08/22 | 20T = 3/09/22 | | 21T = 3/10/22 | 22T = 3/16/22 | | 23T = 3/17/22 | 24T = 6/30/22 | | 25T = 9/09/22 | | (breach of covenant of good faith), and 12 and 13 (unjust enrichment) of the amended complaint.  24T54:3-10.  The court also dismissed defendants' counterclaim and third-party complaint.  24T55:10-11.  The court identified the following transactions as the basis for the judgment:  - Transfer of $629,217.85 from [...]'s customer [...] to [...] between 2013-2015 (24T34:20-35) - Transfer of $2,000,000 from [...]'s Merrill Lynch checking account to [...]'s Capital One bank account on December 6, 2008 (24T35:8-36:10) - Transfer of $500,000 from [...]'s Bank of America account to Emanuel and [...]'s account on November 5, 2013 (24T36:11-22)  - Transfer of $50,000 from [...]'s MR Line of Credit account to [...]'s bank account on December 5, 2014 (24T37:1-4)  - Transfer of $50,000 from [...]'s MR Line of Credit account to Emanuel and [...]'s account on September 8, 2015 (24T37:5-7)  - Transfer of $90,000 from [...]'s MR Line of Credit account to Emanuel and [...]'s account on October 7, 2015 (24Tat 37:7-9)  - Transfer of $50,000 from [...]'s bank account to [...]'s bank account on October 28, 2015 (24T37:9-11)  • Transfer of $75,500 from [...]’s MR Line of Credit account to [...]’s bank account on August 22, 2014 (24T37:11-13)  • Transfer of $2,300,000 from [...]’s bank account to [...]’s account on November 26, 2014 (24T37:17-23)  The court also dismissed defendants’ counterclaim and third-party complaint.  24T55:6-11.  On September 14, 2022, the trial court entered judgment in the amount of $4,258,878.69 against all defendants.
[brief] *Willoughby v. Planning Bd. of Twp. of Deptford*, 306 N.J. Super. 266, 273 (App. Div. 1997).  A reviewing court may reverse the denial of a variance and find a board acted "arbitrarily, capriciously, or unreasonably if its findings of fact in support of a grant or denial of a variance are not supported by the record[.]”
[brief] The essential purpose of the FDCPA, as noted, is to address and deter abusive collection practices that give rise to a risk of embarrassment or other hardship to a debtor, such as via communications directed at a family member, friend, neighbor or employer of the debtor . . .  There are no facts presently alleged that would permit a conclusion that the alleged supplying of information by the debt collector to the letter vendor was in any way intended to, or had or could have had the effect of, harassing, embarrassing or humiliating the debtor or was otherwise undertaken for any reason other than legitimate collection activities directed to the debtor.  Thus, the conduct presently alleged by the Plaintiff as a basis for the individual and proposed Class claims does not contravene either the express letter or intendment of the FDCPA.  ______________________ evident by the fact that the [...] has reported that over 85% of debt collectors use mailing vendors.  (See 12 CFR Part 1006)  The Trial Court’s careful interpretation of the FDCPA results in a conclusion that mirrors the Appellate Division’s recent holdings in *Asmad-Escobar* and *Mhrez* and thus should prevail over three minority and non-binding cases that ignored the obvious fact that transmitting data to a mailing vendor is fundamentally different than communicating a consumer’s debt information to family member, friend, neighbor or employer of the debtor.
[brief] (2T19-3 to 22-11).  [Raised Below.]  The trial court correctly denied defendant’s motion for reconsideration because defendant did not produce any evidence that the court’s decision was based on a palpably incorrect or illegal basis.  The State asks this Court to affirm.  On appeal, defendant argues that the trial court erred in denying defendant’s motion to reconsider his motion to suppress evidence, alleging that the trial court’s denial was based on a misapplication of the Supreme Court’s findings in Goldsmith.
[brief] In a Rule 4:50-1(f) application the applicant is not required to prove a meritorious defense in order to obtain relief.  See Guillaume, 209 N.J. at 469.  The subsection (f) “boundaries “are as expansive as the need to achieve equity and justice, Ridge at Back Brook, LLC v. Klenert, 437 N.J.Super. 90, 98 (App. Div.2014), quoting Court Invest. Co v. Perillo, 48 N J. 334, 341 (1966).  The unpublished case of [...] v. [...], et al,2021 N.J.Super Unpublished (App. Div. A-1203-2021, February 10, 2023,), at 7-9 the trial court’s deference to the equitable principles displayed by the defendant property owners, who, were given time to obtain funds to redeem substantiated by bank statements was a pivotal in vacating the tax sale foreclosure judgment.
[brief] Id. at 26-27.  The court placed its oral opinion on the record.  Id.  It denied as moot [...]’s motion to exclude causation opinions.  Pa1.  Plaintiff filed a motion for reconsideration, which [...] opposed.  Pa673.  After a hearing, the court denied Plaintiff’s motion for reconsideration.  Pa3.  On May 25, 2023, Plaintiff filed its notice of appeal.  Pa723.  ¹  Plaintiff voluntarily dismissed all claims against [...], and the [...].  The court dismissed [...] pursuant to the seller immunity provision of the New Jersey Product Liability Act.  ²  Plaintiff did not oppose summary judgment on his negligence claims.  2T at 4.  STATEMENT OF FACTS