ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The test on appellate review of a Wade hearing is whether the trial judge could reasonably conclude that the identification procedure was not “‘so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. ’”  State v. Madison, 109 N.J. 223, 225, 536 A.2d 254 (1988) (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968)).  Even in cases when there is held to be suggestivity in the identification process, courts have still held that “[t]he strength or credibility of the identification is not the issue on admissibility; that is a matter of weight, for the fact finder, under appropriate instructions from the trial judge. ”  State v. Farrow, 61 N.J. 434, 451, 294 A.2d 873 (1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1396, 35 L.Ed.2d 602 (1973).
[brief] I  THERE IS SUFFICIENT EVIDENCE IN THE RECORD TO DENY SUMMARY  JUDGMENT ON PLAINTIFF’S CEPA CLAIM  Plaintiff filed a complaint alleging violations of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 et seq.  (Pal – Pa8).  The trial court erred in granting summary judgment in favor of Defendants because the evidence on record sufficiently supports Plaintiff’s CEPA claim, precluding summary judgment as a matter of law.
[brief] As correctly stated by Respondent, laches is an equitable doctrine that “precludes relief when there is an ‘unexplainable and inexcusable delay’ in exercising a right, which results in prejudice to another party. ”  Db11.  To prevail, both prongs must be satisfied.  Neither is satisfied in this case.  The bankruptcy “Adversary Complaint for Avoidance and Transfer of Property” filed on 1/30/2020 (Pa24) sought disgorgement from [...] of four years’ of mortgage payments totalling $105,697.90 improperly made by [...]’s oneperson corporation, [...], at the direction of [...].  From 1/30/2020 until 8/10/2022, [...] vigorously defended against the Trustee’s claim.  Pa35.  It was not until the preference action was resolved that [...] first knew the amount of its loss with any certainty, and its claim against [...] for restitution of the disgorged mortgage payments arose.  It was less than one year later, on 8/4/2023 (Pa1), that [...] filed its Complaint against [...] for reinstatement of the mortgage and restitution of the fraudulently made mortgage payments.  Thus, there was no inexcusable or avoidable delay.
[brief] THE BOARD'S STATED REASONS FOR DENYING THE SUBDIVISION WERE ENTITLED TO DEFERENCE; IT WAS ERRONEOUS FOR THE TRIAL COURT TO REVERSE.  (Final Order at Ia269 to Ia270; opinion at 4T36-18 to 4T47-1).  In an action in lieu of prerogative writs, a board's decision "is tested against an indulgent standard, which permits the court to overturn the decision being reviewed only if it is arbitrary, capricious or unreasonable."  Kane Properties, LLC v. City of Hoboken, 214 N.J. 199, 225 (2013).  "[T]he decision of the board is entitled to deference; its factual determinations are presumed to be valid."  Ibid.  "'Where there is room for two opinions, [the board's] action is [valid] when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached.'"  Northgate Condominium Association, Inc. v. Borough of Hillsdale Planning Bd., 214 N.J. 120, 145-46 (2013) (quoting Worthington v. Fauver, 88 N.J. 183, 204-05 (1982)).  "[P]lanning boards are granted 'wide latitude in the exercise of the delegated discretion' due to their 'peculiar knowledge of local conditions.'"  Fallone Properties, L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J. Super. 552, 561 (App. Div. 2004) (quoting Burbridge v. Mine Hill Twp., 117 N.J. 376, 385 (1990)).  The applicant appealed the Board's denial of its proposed subdivision.  "The primary purpose of site plan or subdivision review is to insure that an applicant's plans for development conform to the standards outlined in the municipal land use ordinances."  36 N.J. Practice, Land Use Law Sec. 17.8 ([...] & [...]) (rev. 3d ed. 2022, Oct. 2023 update).  N.J.S.A. 40:55D-48(b) requires approval "if the proposed subdivision complies with the ordinance and this act[.]"
[brief] Additionally, and independently, Plaintiff’s position creates a “special rule” for arbitration clauses and is thus preempted by the Federal Arbitration Act.  Finally, in addition to being out of step with New Jersey law, Plaintiff’s argument should also be rejected because it would create a “special rule” – applicable only to arbitration provisions – which runs afoul of, and is preempted by, the Federal Arbitration Act, 9 U.S.C.A. §1 et seq.
[directive] Vehicular Pursuit Policy 3  Deciding Whether to Pursue 3.1  A law enforcement officer has the authority, at all times, to attempt the stop of any person suspected of having committed any criminal offense or traffic violation.  When the violator does not submit to the officer’s lawful authority and bring the vehicle to a stop, the officer must determine whether to pursue that violator by continuing to attempt to stop the violator utilizing pursuit driving as defined herein.  The officer's decision to pursue should always be undertaken with an awareness of the degree of risk to which the officer exposes law enforcement and the community by engaging in a vehicular pursuit.  The officer must always weigh the need for immediate apprehension against the risk created by the pursuit.  3.2  A law enforcement officer may only pursue under the circumstances described in subparagraph A or subparagraph B:  (a) when the officer reasonably believes that the violator has committed, or is engaged in a conspiracy or attempt to commit, any crime of the first degree or one of the following violent or serious crimes of the second degree: (1) Manslaughter, N.J.S.A. 2C:11-4; (2) Vehicular Homicide, N.J.S.A. 2C:11-5; (3) Aggravated Assault, N.J.S.A. 2C:12-1(b); (4) Disarming a Law Enforcement Officer, N.J.S.A. 2C:12-11; (5) Kidnapping, N.J.S.A. 2C:13-1; (6) Luring/Enticing a Child, N.J.S.A. 2C:13-6; (7) Human Trafficking, N.J.S.A. 2C:13-8; (8) Sexual Assault, N.J.S.A. 2C:14-2; (9) Robbery, N.J.S.A. 2C:15-1; (10) Arson, N.J.S.A. 2C:17-1; (11) Burglary, N.J.S.A. 2C:18-2; (12) Escape, N.J.S.A. 2C:29-5.  (b) when an officer reasonably believes that the violator poses an imminent threat to the safety of the public or other officers.  This determination shall be made based upon the violator’s actions or operation of the vehicle prior to the initiation of the attempted motor vehicle stop.  The violator’s subsequent actions, including speeding or evasive driving during the pursuit itself, although often supporting the criminal charge of Eluding, N.J.S.A. 2C:29-2(b), shall not constitute an authorization to initiate or continue a pursuit.  3.2.1  Pursuit for motor vehicle offenses is not authorized under Paragraph 3.2 unless the violator’s vehicle is being operated so as to pose an imminent threat to the safety of the public or other officers and that threat is based on the violator’s actions or operation of the vehicle prior to the initiation of the attempted motor vehicle stop.  There shall be a strong 4  USE OF FORCE POLICY
[brief] (Rb25-31).  The reciprocal insurance exchange receives premium income from its policyholders/subscribers.  The reciprocal insurance exchange pays fees to the attorney-in-fact for the services it performs in managing the reciprocal insurance exchange.  The reciprocal insurance exchange reports those fees on its annual financial statement as expenses.  (Rb28).  In the case of [...], the fees are not to exceed 12.5% of annual premiums paid by the policyholder/subscriber.  (Ra13, ¶ 8).  SSAP No. 25 requires that payments between related parties, such as the attorney-in-fact and the reciprocal insurance exchange, be made on an arm’s-length basis and be fair and reasonable.  (See Ra10, ¶¶ 20-21).  Under SSAP 25 the attorney-in-fact fees are intended to pay the attorney-in-fact for services rendered, not to provide it with excessive profits from a related party.  [...] argues, and [...] implicitly joins in its argument, that [...] need not account for how this 12.5 % of annual premiums is spent, or in any way justify that the services provided to the exchange in return for these payments are fair and reasonable.
[brief] Plaintiff argues in this appeal that the trial court did not consider the 72 Counterstatements of Fact he proffered.  (Pa219); however, those counterstatements did not conform to the Rules of Court and could not be considered.  Firstly, Plaintiff did not cite to precise portions of the motion record, nor cite to any competent evidence to support those statements.  (Id.)  More particularly, while Plaintiff generally pointed to his Certification dated August 30, 2023 to support certain counterstatements, he failed to point to a particular paragraph of testimony in his Certification to support the alleged statements or even a document that was part of the motion record in contravention of R. 4:46-2(b).
[brief] See *State v. McNamara*, 212 N.J. Super. 102, 105 (1986) (“The fact that defendant is incarcerated cannot in and of itself justify a denial of speedy trial.  Writs may be sent to facilities where a defendant is incarcerated for purposes of bring him to trial.  This is particularly true when defendant is within the state or within the jurisdiction of the Department of Corrections which can produce him for \(^9\)  Rule 3:4-2 provides that a first appearance shall be held after the issuance of a complaint or a defendant’s arrest and that the defendant shall be provided with a copy of the complaint and informed of his rights, and given an opportunity to fill out an application for assistance of counsel.  Rule 3:9-1 requires that upon the return or unsealing of an indictment, a defendant shall be provided with a copy of the indictment and all available discovery, and should be notified to appear for arraignment.  The rule also provides that at arraignment the court must ensure that a defendant has the assistance of counsel, advise the defendant of the charges against him, and confirm that the defendant has received discovery.  While parts of the rules specifying the process and timelines for these steps have changed since 2014, what matters and what has remained true is that a defendant must be provided with a copy of the complaint, indictment and discovery, and assignment of counsel in a timely fashion.
[brief] 54 Jay v. Royal Caribbean Cruises Ltd., 2022 U.S. Dist. LEXIS 108558 (S.D. Fla. June 17, 2022)....................... 54 Lanzo v. Cyprus Amax Minerals Co., 467 N.J. Super. 476 (App. Div. 2021) ..................................................  51  Manalapan Realty, L.P. v. Twp. Comm. Of Manalapan, 140 N.J. 366 (1995) ............................................................................. 28 McCreless v. Global Upholstery Co., 500 F. Supp. 2d 1350 (N.D. Ala. 2007) ..................................................
[brief] ”  Henderson, 208 N.J. at 254.  Pressuring an eyewitness to declare certainty in an identification is suggestive because it distorts the witness’s confidence.  And our caselaw is clear that it does not require dramatic misconduct in the administration of an array.  Even “seemingly innocuous” comments by an officer provide at least some evidence of suggestiveness.  Anthony, 237 N.J. at 233 (holding that it is suggestive to “for example, simply tell[] a witness that he or she did a ‘good job’”).
[brief] DO NOT COMPEL A DIFFERENT RESULT.  Notwithstanding the clarity of the applicable statute, [...] argues that he should be permitted to file beyond the statutory deadline because the Board did not provide adequate notice of the Ricci Act.  (Pb9).  This argument fails because the Board provided adequate notice of the law.  The only express notice requirement contained in the Ricci Act provides that the Board must “notify members and retirants in the retirement system of the enactment of this act, P.L.2019, c.157, within 30 days of enactment.  N.J.S.A. 53:5A-10(e)(4).  On August 7, 2019, the [...] satisfied this notice requirement when it added information about the Ricci Act to its website.  (Pa10).  That notice satisfied the Ricci Act, which requires only that the Board notify members of the enactment of the statute.  The Legislature is well aware of how to create specific notice requirements and has done so with other statutes.  See N.J.S.A. 43:15A-50(a) (“Notification shall be by certified mail to the spouse’s address as provided on the form by the member. ”); e.g., Hammond v. City of Paterson, 145 N.J. Super. 452, 456 (App. Div. 1976) (holding that the Legislature, in requiring “actual receipt” of notice in the Tort Claims Act when certified mail is not used, “clearly did not mean to leave proof of actual receipt to a presumption. ”).  When “the Legislature has carefully employed a term in one place and excluded it in another, it should not be implied where excluded. ”  GE Solid State, Inc. v. Director, Div. of Taxation, 132 N.J. 298, 307-08 (1993); see also State v. Hoffman, 149 N.J. 564, 579 (1997).  Nowhere in the Ricci Act is there a requirement that the Board send notice, through a postcard, by certified mail or other means, or otherwise require actual receipt of notice.  Thus, in accord with the statutory canon of expressio unius est exclusio alterius, the expression of one thing suggests the exclusion of another left unmentioned, this court should reject [...]’s request to create a requirement where the Legislature has chosen not to.  The Ricci Act simply required that the Board provide notice within thirty days of its enactment, without specifying in what manner.  The Board complied with this requirement when it posted information about the Ricci Act on its website.  [...] identifies no authority suggesting that the Division’s use of its website to fulfill this notice requirement was inadequate.
[brief] When [...] was asked whether he was familiar with the person he saw at Kelly’s Tavern, he did not answer, “yes,” but rather responded, “I’ve seen him a couple of times before;” he acknowledged, however, that he did not know this person’s name.  (8T 10-17 to 23)  While [...]’s use of the word “couple,” is ambiguous, “couple” can mean either “two” or “an indefinite small number.
[brief] (1)  The August 16, 2019 Incident  For the August 16, 2019 incident, the State presented the testimony of Lieutenant [...], Officer [...], Officer [...] and Major [...].  [...] presented the testimony of Officer [...].  It should noted that:  1.  The State did not present the testimony of [...] because he was no longer with the Department of Corrections and was terminated for disciplinary reasons.  (1T15.9-12).  2.  The State did not present the testimony of Major [...] who oversaw the entire investigation and was the summary witness at [...]’s truncated Loudermill\(^7\) hearing.  Since the investigation, Major Valentin has been arrested and charged with official misconduct, conspiracy and tampering with public records or information.  (Pa68a).  3.  The State did not present [...] as a witness to testify for this incident even though he was present on the date in question, had relevant information, conducted counts and testified on the second incident.  (2T).  Instead, the State called Minivich as a witness to the alleged incident at the lineup.  The State expressly indicated that it Minivich was not being called as a witness to the alleged escape even though Minivich was present and made entries in the logbook on the relevant day in question.  See also, Point IV, infra.  Investigator Leitner testified that he was not the lead investigator in this case.  Investigator Leitner “wasn’t assigned the investigation because \(^7\)Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985).  there was another investigator, but he was present in Edna Mahan at SID as an investigator, so he knew what was going on. ” (1T17.5-8).  He was, however, present for [...]’s interview.  (1T16.23-24; 1T44.5-7).  Investigator Leitner was also the lead investigator for [...]’s second incident.  A.  The August 17, 2019 Incident  For the August 17, 2019 incident, the State presented the testimony of Lieutenant [...], Officer [...], Lieutenant [...], Officer [...], Officer [...], Officer [...] and Officer [...].  LEGAL STANDARD OF REVIEW
[directive] This Directive does not apply to applications for administrative search warrants, or for court orders to enter premises to retrieve weapons pursuant to N.J.S.A. 2C:25-21 (domestic violence) where the weapons to be seized are not believed to be contraband, evidence or an instrumentality of a criminal offense.  2.  Requirement to Obtain Prosecutorial Approval  No law enforcement officer or agency operating under the authority of the laws of this State at any level of government shall apply to a New Jersey Judge for issuance of a search warrant without first obtaining express authorization from an Assistant Attorney General, Deputy Attorney General or Assistant County Prosecutor who has been designated in writing by the Director of the Division of Criminal Justice or a County Prosecutor pursuant to the provisions of Section 5 of this Directive.
[brief] ”  *Strasenburgh v. Straubmuller*, 146 N.J. 527, 549 (1996).  Derivative actions are important to “maintaining the investment resources of the corporation, avoiding a multiplicity of suits, providing equal benefit for all shareholders and avoiding partial dividends or partial liquidation. ”  *Id.* at 549-50.  Thus, when injury to corporate stock falls equally upon all shareholders, an individual stockholder generally cannot recover for the injury to his stock alone, but must sue derivatively on behalf of the entity.  *Id.* at 550.  However, New Jersey recognizes an exception to the derivative suit rule.
[brief] Subsequent to 2020 Order, the Respondents’ sought relief from the requirement of the Route 33 Signal.  The Respondents asserted that the [...] was no longer supportive of the Route 33 Signal.  This position was based upon an April 6, 2021 pre-application meeting between the Respondents and the [...] (hereinafter the “2021 [...] Meeting”).  Ba17-21.  At the 2021 [...] Meeting, the Respondents indicate that the [...] modified its prior endorsement of the Route 33 Signal; as indicated in the following excerpt from the minutes of the meeting:  [...] and [...] [both from the [...]] took the position that, in order to proceed with the [Route 33 Signal], an Access Level change would be required in accordance with the State Highway Access Management Code.  Neither [...] nor [...] could provide a citation requiring an access level change in order to permit a median left turn lane.  [...] further stated that if the access level change was perfected, it would not guaranty an approval of the [Route 33 Signal] and that a detailed corridor analysis with and without the new traffic signal would be required, including a Waiver Request to install the new traffic signal 1,200 feet east of Twin Rivers Drive where 2,640 feet is required.  See Ba19.  However, the Respondents’ assertion that the [...] modified its position at the 2021 [...] Meeting ignores the similar (if not identical) position taken by the [...] at the 2019 [...] Meeting.  Ba17-21; Ba27-30.  As a result of the 2021 [...] Meeting, the Respondents filed a motion seeking relief from the voluntarily condition requiring the provision of the Route 33 Signal.
[brief] The trial court further erred in ruling that defendant failed to establish prejudice under Strickland’s second prong (“the Court maintains that the trial would have not yielded a different result because the ballistics expert's testimony did not contradict the defense's trial strategy,” DA82).  Had expert [...] or a like expert testified on defendant’s behalf, there is a “reasonable probability” that, but for his counsel's errors, the result of the trial and appeal proceedings would have been different.  Strickland, supra, 466 U.S. 694.  The jury would have had more than sufficient basis to find reasonable doubt on whether defendant in fact was proven to have shot [...], resulting in acquittal of this criminal charge.  This is prejudice under Strickland because the result of the proceeding would have been different, Strickland, 466 U.S. 694; Fritz, 105 N.J. 58.
[brief] PRELIMINARY STATEMENT | 1 | | II.  PROCEDURAL HISTORY | 2 | | III.  COUNTERSTATEMENT OF FACTS | 2 | | IV.  LEGAL ARGUMENTS | 9 | | A. Standard of Review | 9 | | B.  The Arguments in Sections II.A.3 and III of Defendants’ Brief Were Not Raised Before the Trial court and are Therefore Waived | 12 | | C.  Defendants’ Argument that 5(b) is Satisfied Fails | 13 | | 1.  Defendants Misstate the Trial court’s Findings Related to Discontinuance of Use | 13 | | 2.  The Trial Court Properly Found that Defendants’ Argument Related to Remediation as Use is Irrelevant | 15 | | 3.  To the Extent that this Court Considers Defendants’ Argument Regarding Evidence of Abandonment, Defendants Mischaracterize the Trial Court’s Consideration of the Definition of “Abandoned” | 17 | | 4.  The Trial Court Correctly Found that the Property does not Exhibit Significant Vacancies | 18 | | 5.  The Trial Court Correctly Found that the Property is not Untenantable | 20 |  D.  Defendants’ Argument that the Property Meets the Criteria Set Forth in Subsection 5(d) is Not Supported by Substantial Credible Evidence .................................................................22  1.  Defendants Misstate the Nature of Contamination on the Property in Order to Assert that the Property is Detrimental to the Welfare of the Community .......................23  2.  Defendants have the Burden of Proving that the Property is Detrimental to the Safety and Welfare of the Community........27  E.  The Trial court did not Base its Ruling on Potential Future Condemnation .................................................................28  F.  Timely Compliance with Remediation  Obligations is not One of the Statutory Criteria for Redevelopment Designation........30  V. CONCLUSION.........................................................................................31
[brief] *Ibid.* (citing *State v. Chew*, 150 N.J. 30 (1997)).  There, the defendants challenged the admissibility of prior statements made by two witnesses who had previously provided the defendant with an alibi but later inculpated him.  *Ibid.*  Their trial testimony was “substantially” consistent with the inculpatory statements previously given.  *Ibid.*  In finding it unnecessary to determine whether there was a temporal motive to fabricate, [t]he Court [Inoted that ‘cross-examination tested whether the witnesses were further motivated by their plea agreements and whether the police had fed them with the details of their stories. ’  *Ibid.*  The Court concluded that in these circumstances ‘[t]he prior consistent statements had significant ‘probative force bearing on credibility beyond merely showing repetition. ’  *[Id. at 387.]*  Accordingly, the *Chew* Court found it appropriate to allow for the admission of consistent statements “after some motive to fabricate arose, but before other motives to fabricate arose. ”  *State v. Moorer* 448 N.J. Super. 94 (App. Div. 2016) (citations omitted).
[brief] The sentencing court properly considered defendant’s entire record in imposing sentence.  Defendant next claims that the sentencing court considered his prior dismissed charges in violation of State v. K.S., 220 N.J. 190 (2015).  At the outset, defendant has not developed this claim beyond a single paragraph in which he cites to the transcript and to K.S. (Db47).  Because he has not provided any argument in support of this claim, it is waived.
[brief] Once Plaintiff Elected to Abandon the Transaction, It Released [...] From Any Implied Duties  Plaintiff’s appeal fails to set forth a meritorious basis to sustain its claim for breach of the implied covenant of good faith and fair dealing.  In an improper attempt to circumvent the stipulated remedies clause, Plaintiff erroneously suggests that [...] can be liable for breaching the implied covenant based on the same conduct that would form a breach of the express terms of the PSA.