ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] This appeal is from the denial of defendant-appellant [...]’s motion to correct an illegal sentence.  (Da 17 to 28)  Suarez was nineteen years old when the offenses occurred on August 3, 1991.  (Da 7; PSR 1)  Ocean County indictment number [...] charged Suarez with (1) murder, N.J.S.A. 2C:11-3a(1), -3a(2); (2) felony murder, 2C:11-3a(3); (3) first-degree robbery, 2C:15-1; (4) second-degree burglary, 2C:18-2; (5) third-degree burglary, 2C:18-2; and (6) fourth-degree unlawful possession of a weapon, 2C:39-5d.  (Da 1 to 4)  In 1995, Suarez had a jury trial, with the Honorable [...], J.S.C., presiding.  The prosecution testimony was that [...] was found stabbed to death in his [...] apartment on the morning of August 3, 1991.  (Da 10)  A bloody palm print matched Suarez, who lived across the street.  (Da 10 to 11)  Under interrogation, Suarez admitted that he had gone to --- 1  In this particular brief, a combined section avoids repetition and is easier to follow.
[brief] (3T21-12 to 21-16)  The Judge also found that where, as here, the only issue is whether an adequate factual basis supports the plea, a Slater\(^3\) analysis is unnecessary.  (3T23-25 to 24-6)  As to Defendant’s continued reliance on *Vargas*, [...] recognized it was neither binding nor precedential.  (3T26-8 to 26-9; 27-3 to 27-6)  Nevertheless, [...] distinguished *Vargas* stating, “The case before this Court is differentiated from *Vargas* in that here, Defendant explicitly acknowledged that he was under the influence of alcohol while operating the motor vehicle and that his consumption of alcohol affected his ability to properly operate his vehicle.
[brief] Plaintiff-Appellant, an elementary school teacher, initially filed her first lawsuit on June 17, 2016, against the [...], then Superintendent [...] and Principal [...].  (Pa27).  Plaintiff alleged that she was being subjected to a transfer to another teaching position within her certification within the same school district in retaliation for serving as one of many witnesses in a discrimination investigation arising out of a discrimination complaint made by another teacher.  (Pa27; Pa28).  Upon learning of the transfer, Plaintiff-Appellant filed an Order to Show Cause and Complaint alleging claims for retaliation under the New Jersey Law Against Discrimination ("NJLAD" and/or "LAD") and the New Jersey Conscientious Employee Protection Act ("CEPA").  (Pa28).  Plaintiff-Appellant also alleged a claim for failure to accommodate under the NJLAD.  (Pa28).  The Trial Court entered a preliminary injunction ordering that Plaintiff was not to be transferred.  (Pa28).  Plaintiff would continue to teach third grade in the same building and in the same classroom as the prior school year.  There is no allegation that Defendant-Respondents in any way violated the injunction, which has remained in place since July of 2016.  (Pa35)  The first suit proceeded through discovery and was the subject of significant motion practice.  By Order and Opinion dated October 20, 2021, the Trial Court granted Defendants’ Motion for Reconsideration, and entered Summary Judgment dismissing Appellant’s NJLAD retaliation claim.  (Pa78-Pa95).  The Court found that Plaintiff-Appellant’s transfer between two different grades within the same school district and within the teacher’s certification, an action explicitly permitted by the relevant collective bargaining agreement, was not an adverse employment action within the meaning of the NJLAD.  (Pa89).  It should be noted that Appellant had voluntarily dismissed Appellant’s CEPA claim.  The only claim presently pending in the first lawsuit is Plaintiff’s failure to accommodate claim.  A trial on that claim is scheduled to proceed on September 25, 2023.  On or about September 3, 2021, more than five years after filing the initial lawsuit, Plaintiff-Appellant filed the matter that is the subject of the present appeal (“[...]”).
[brief] The jury determined that some scuffle outside the [...] occurred that could not be explained; no one could explain the bottle being swung, and the jury returned its verdict on passion/provocation manslaughter on counts one and two.  (30T20-2 to 7).  The State characterized defendant waiting outside of the [...] entrance as “shooting fish in a barrel” because he knew the patrons coming outside from the party did not have guns.  (30T20-16 to 20).  No audio was on the surveillance tapes, but defendant was the only person who had a gun.  (30T20-21 to 23).  Defendant not only shot [...] in the back, but he then shot [...] in the face, and left both of them to suffer not caring whether he had harmed them or not.  (30T21-2 to 10).  The evidence showed no call for help came from defendant.  (30T21-20 to 22).  The State argued that the judge should find as an aggravating factor the risk that defendant would commit another offense.  (30T22-24 to 30T23-20).  The State based its argument on the fact that defendant testified to a “series of lies” that the jury rejected.  (30T23-1 to 13).  Defendant took no responsibility for his actions, and he presented a risk of reoffending.  (30T23-14 to 20).
[brief] The relationship between plaintiff [...] and defendant [...] dates back to 1984.  [...], a chemical engineer, had recently arrived in the United States from India.  His difficulties with the language posed a major obstacle in his efforts to secure a job better than the $4 an hour job he held.  After sending out 200 resumes with no responses, [...] received a job offer from [...], the laboratory manager at defendant [...] ([...]), an environmental testing laboratory.  He hired [...] to work as a chemist for $6 per hour.  In describing the success that followed, [...] said, “I am so grateful to Emanuel that he gave me a 6 dollar job, and in 2006 and 2007 I am make $300,000 a year.  My success is because of him. ”  In 1998, [...] was promoted to lab manager and [...] became the sales and marketing manager.  Their relationship extended beyond the workplace.  As [...] noted, [...] loaned him $12,000 to help him buy his first house.  In 1990, when the owner decided to sell [...], [...], [...] and a group of other investors purchased the company.  After the others sold their interests, [...] and [...] became the two remaining stockholders in 2007.  They executed a Stockholders Agreement (P-8) Da1505-1526 as well as employment agreements for each of them.
[brief] *Yormack, supra*, 11 N.J. Super. at 425.  A plaintiff must satisfy his burden to proffer competent evidence that reduces the likelihood of other causes so that the greater probability of fault lies at the defendants’ door.  *Jimenez v. GNOC, Corp.*, 286 N.J. Super. 533, 545 (App. Div.), certif. denied, 145 N.J. 374 (1996).
[directive] WHEREAS, the ViolenceAgainst Women and DepartmentofJustice ReauthorizationAct of 2005 ("Act") provides funding to support programs for victims of violence against women; WHEREAS, this Act includesthe STOP ViolenceAgainstWomenAct (VAWA) Formula Grant Program that provides funding to states and other government units; WHEREAS, applicants for the VAWA fundingmust certifycompliancewith the statutory requirements of the Act as required by 42 U.S.c. 3796gg-4, 3796gg-5 and 3796gg-8 and implemented at 28 CFR Part 90; WHEREAS, 42 U.S.c. 3796gg-8 requires an applicant to certifythat its laws, policies or -.Qracticeswill ensur~Jbat law enfor~ment sh~llnot askor require a victimof an allegedsex offense_ __ to submit to a polygraph examination as a condition for proceeding with the investigation of such an offense; WHEREAS, it is necessary and appropriateto establish statewidepolicies and procedures for use by all law enforcement agencies to ensure the implementation of this restriction on the use of polygraph examinations or other truth telling devices in the investigationof sexual offenses; NOW, THEREFORE, I, [...], AttorneyGeneraloftheStateofNew Jersey, by virtue of the authority vested in me bythe Constitution and the Criminal Justice Act of 1970, NJ.S.A. 52:17B-92 et seq., do hereby DIRECT that all law enforcementagenciesoperating under the authority ofthe laws of the State of New Jersey shall adhere to the policies and procedures set forth below:
[directive] Do you understand that if you change residence you must notify the law enforcement agency where you are registered, and must re-register with the chief law enforcement officer of the municipality in which you will reside, or the Superintendent of State Police if the municipality does not have a chief law enforcement officer, no less than 10 days before you intend to reside at the new address?  (2)  Você entende que se mudar de emprego ou sua matrícula escolar você terá que [Sim/Yes] [Não/No] notificar o devido órgão policial no mais tardar até 5 dias após a mudança?  Do you understand that if you change employment or school enrollment status you must notify the appropriate law enforcement agency no later than 5 days after the change?  (3)  Você entende que se não notificar o devido órgão policial sobre a mudança de [Sim/Yes] [Não/No] endereço ou condição você estará sujeito à acusação de um crime de terceiro grau, e 1o (se o crime foi cometido em de poderá receber uma pena de prisão de até 5 anos julho de 2014 ou após esta data), ou estará sujeito à acusação de um crime de quarto (se o crime foi cometido grau e poderá receber uma pena de prisão de até 18 meses 1o antes de de julho de 2014)?  Do you understand that if you fail to notify the appropriate law enforcement agency of a change of address or status you may be charged with a third degree crime, and may receive a sentence of (if the offense was committed on or after July 1, 2014) imprisonment of up to 5 years or you may be (if charged with a fourth degree crime and may receive a sentence of imprisonment of up to 18 months the offense was committed before July 1, 2014)?
[brief] (2T79-4 to 2T79-23).  When Board Engineer/Planner [...] made the suggestion that the applicant create a conservation easement to alleviate drainage concerns, [...] responded that the applicant did not have to make any concessions since it was “only” requesting waivers.  (2T42-1 to 2T43-4)  At the June 14, 2022 hearing, Plaintiff confirmed that a revised subdivision plan had been submitted.
[brief] If the Board were to grant by variance what the Master Plan specifically declined to plan for, that is by definition a substantial detriment to the zone plan and to the statutory scheme requiring the creation of master plans, as a pre-requisite to enacting a zoning ordinance, and the periodic updating of a master plan as a pre-requisite to the continuing viability of a municipal zoning ordinance.  The MLUL specifically provides at N.J.S.A. 40:55D-62:  The governing body may adopt or amend a zoning ordinance relating to the nature and extent of the uses of land and buildings and structures thereon.  **Such ordinance shall be adopted after the planning board has adopted the land use plan element and the housing plan element of the master plan,** and all of the provisions of such zoning ordinance or any amendment or revision thereto shall either be substantially consistent with the land use plan element and the housing plan element of the master plan or designed to effectuate such plan elements;…15
[brief] On March 26, 2024, Defendant’s appeal of the [...]’s finding of guilt as to the DWI and leaving the scene of an accident was --- 1 T = Transcript of Municipal Appeal, March 26, 2024. heard before the Law Division (1T).  The Law Division reviewed the transcript from the municipal court, as well as the evidence submitted to the municipal court, which included video evidence (1T3:17-23).  Defendant stipulated that he had consumed and smelled of alcohol, and that he was involved in a motor vehicle accident (1T4:7-11).  Defendant argued that during the municipal court trial, the State did not prove beyond a reasonable doubt that the accident was a result of his drinking (1T4:12-15).  Defendant noted that his BAC was under the legal limit at .07% and that he passed the field sobriety tests with “flying colors” (1T4:12-18).  In response, the Law Division noted that the Horizontal Gaze Nystagmus (“HGN”) test was “worthless,” and agreed that Defendant passed the walk-and-turn test, but disagreed that Defendant passed the field sobriety tests with “flying colors” because during the one-leg stand test, he fell over at the beginning and his counting was “way off once he got to about six” (1T4:21 – 5:13).  In response, Defendant argued that although the counting may have been off, he stood and kept his leg in position even longer than the test required him to (1T6:2-6).  Defendant further argued that he presented expert testimony from an expert who has administered many field sobriety tests and testified hundreds of times on behalf of the State, but was now testifying in favor of Defendant, whereas the officer that testified for the State was not an expert, was inexperienced, and acknowledged that Defendant satisfactorily performed the one-leg stand after the initial instruction issue (1T6:11-25).  In addition, Defendant acknowledged that he uses a second language and could have had difficulty following the instructions (1T6:23 – 7:1).  Ultimately, Defendant argued that there was reasonable doubt because there was no per se BAC reading, the HGN test did not apply, he passed the walk-and-turn test, and it was questionable whether he passed the one-leg stand test (1T7:2-6).
[brief] ”  Thomas Makuch, LLC v. Twp. of Jackson, 476 N.J. Super. 169, 191 (App. Div. 2023) (citation omitted).  Appellant does not “allege[] discrimination on the basis of membership in a protected class. ”  Ibid.  Accordingly, in such a “class-of-one” claim, the alleging party is required to “show that he or she was (1) intentionally treated differently from other people who are similarly situated, and (2) there is no rational basis for the difference in treatment. ”  Ibid.  The issues raised by Appellant in this case relate to the Department’s treatment of Respondent, not Appellant.  To the extent Appellant can even claim an equal protection violation based on how it may have been treated in the past by way of another’s treatment at a later time, Appellant fails to show that the difference in treatment was “intentional” or that there was “no rational basis” for same.  It must foremost be recognized that the permitting decisions related to Appellant’s existing development on the [...] and the conditions Appellant was required to comply with are not in-fact at issue in this case.  Moreover, there is nothing in the record that even suggests that the Department acted in any way to intentionally treat [...] differently than it may have treated Appellant in the past.  Furthermore, the record establishes a “rational basis” for the Department’s conclusion that the SRD Rule should not apply to the Project.  As discussed in Point I, supra, development of the Project is explicitly subject to the standards under the Redevelopment Ordinances, which do not require an open view corridor or setback.  The reasoning for the Department’s decision to issue the Permit was set forth in detail in the Settlement Agreement and the Environmental Report.  Aa29-34; 2Ra202-03; 2Ra205-06.  **CONCLUSION**
[brief] Instead of simply providing the discovery responses to which [...] was entitled, [...] stonewalled and filed frivolous motions which drastically extended the length and expense of the subject litigation.  However frustrating and expensive [...]’s delaying tactics have been, they pale in significance to the prejudice suffered by [...] in the delay in receiving its day in Court and compensation for the work and materials it invested in the home in which [...] currently resides.  Importantly, the Appellate Division’s recent decision in *Marmo and Sons General Contracting, LLC v. Biagi Farms, LLC*, 478 N.J. Super. 593 (App. Div 2024) makes it clear that in performing the *Cole* analysis, the focus must be predominately on the waiving party.  Thus, prejudice is only one of many waiver factors within the totality of circumstances.  Here, the waiving party drafted the arbitration provision and chose not to assert it, opting instead to deny the existence of the contract.  [...] has expended time and money in its pursuit of fair pay for the job it has performed.  It has been stalled and delayed by [...], the party who drafted the contract upon which [...] relied.  [...] then denied that the contract existed until he, or his counsel, found the contract to be useful to further delay an adjudication of this matter.  The *Cole* factors support the finding of a waiver under the facts of this case.
[brief] “All terms in a statute should be accorded their normal sense and significance. ”  Id. at 256, 798 A.2d 51 (quoting Stryker Corp. v. Dir., Div. of Taxation, 168 N.J. 138, 156, 773 A.2d 674 (2001)).  DeVivo v. Anderson, 410 N.J. Super. 175, 179, 980 A.2d 498, 500 (Super. Ct. 2009).  Here, the Trial Court failed to apply the plain meaning of N.J.S.A. 39:6A- 4.
[brief] --- \(^5\)  As noted by the Respondent:  “I had four lines on the account, none of which were [...]’s [Petitioner].  But they told me that somebody had called and cancelled service that morning, and they said it was [...] Sutton at 8:17 a.m. ” (11T124-20 to 23).  The Petitioner had managed to do this by answering the “security questions” associated with the account, which included things such as “what street did you grow up on” and similar information that the Petitioner would know.  (11T125-5 to 9).  A few weeks after the dismissed APS complaint, the Petitioner -- the evidence is overwhelming that it was indeed him -- filed a written complaint dated August 13, 2021 with Child Protective Services (“CPS”), causing CPS representatives to show up at the Decedent’s house.
[brief] An arbitration award is usually unassailable, final, conclusive and binding.  Public policy favors arbitration, and awards are subject to vacatur only under narrowly defined circumstances.  Borough of E. Rutherford v. PBA Local 275, 213 N.J. 190, 201(2013) (stating “courts give arbitration awards “wide berth, with limited bases for a court’s interference. ”).  “[T]o ensure finality, as well as to secure arbitration’s speedy and inexpensive nature, there exists a strong preference for judicial confirmation of arbitration awards. ”  Id.  “Arbitration should spell litigation’s conclusion, rather than its beginning… and arbitration… should be a fast and inexpensive way to achieve final resolution of such disputes and not merely a way-station on route to the courthouse. ”  Id.  A party challenging the Award must demonstrate statutory grounds to vacate.
[brief] (6T 33-13 to 37-21; 42-22 to 49-2; 53-25 to 60-23; 65-4 to 68-4; 69-2 to 72-1; 79-5 to 91-7; 93-5 to 99-6; 101-4 to 7; 103-12 to 17; 104-8 to 114-21; 115-16 to 124-2)  Jury deliberations began on January 30, 2018, and continued for seven days, on January 31, February 1-2, and February 5-7, 2018.  (9T – 15T)  On February 7, the jury informed the court that its deliberations had “reached an impasse,” and that it was “unable to reach a unanimous verdict” on “[c]ounts I to XI. ”  (15T 7-1 to 3)  In other words, at least some jurors believed that the State had not met its burden of proving [...] guilty beyond a reasonable doubt on any of the charges.
[brief] ”  James v. N.J. Mfrs. Ins. Co., 216 N.J. 552, 563 (2014) (citing Twiss v. State, 124 N.J. 461, 467 (1991)).  “Once it has been determined that a statute is subject to retroactive application, a separate inquiry requires examination for manifest injustice to the party adversely affected. ”  Id. at 565 (retroactivity analysis involves determination of whether there has been an unconstitutional interference with vested rights or manifest injustice).
[brief] [...] DID NOT VOLUNTARILY CONSENT TO THE SEARCH OF HIS HOME BECAUSE POLICE GAINED HIS SUBMISSION ONLY AFTER OFFICERS (1) THREATENED TO “TEAR THROUGH THE HOUSE” IF HE DID NOT SIGN THE CONSENT TO SEARCH FORM; (2) ASSERTED THAT A SEARCH OF HIS HOME WAS INEVITABLE IRRESPECTIVE OF HIS CONSENT; AND (3) INDICATED THAT THE POLICE—NOT THE COURT—WOULD DECIDE THAT A WARRANT WOULD ISSUE.  U.S. CONST. AMEND. IV; N.J. CONST. ART. I, ¶ 7.
[directive] This includes complaints of criminal activity, excessive force, improper or unjust arrest, improper entry, improper or unjustified search, differential treatment, serious rule infractions and repeated minor rule infractions.  6.3.2  Unless otherwise directed to do so by the County Prosecutor, the prosecutor's office must be immediately notified of all allegations of criminal conduct.  The internal affairs investigator shall refrain from taking any further investigative action until directed to do so by the County Prosecutor unless an imminent threat exists to the safety or welfare of an individual.  Once a complaint has been forwarded to the prosecutor's office, that office shall endeavor to review the allegation within 30 days and advise the law enforcement agency whether a criminal investigation will be conducted.
[brief] “…when deciding a motion for summary judgment under R. 4:46-2, the determination whether there exists a genuine issue with respect to a material fact challenged requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the nonmoving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational fact-finder to resolve the alleged disputed issue in favor of the non-moving party.  This assessment of the evidence is to be conducted in the same manner as that required under R. 4:46-2. ”  The judge’s function is not to weigh the evidence and determine the truth of the matter, but to determine whether there exists a genuine issue for trial.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).  It is a movant’s burden to exclude any reasonable doubt as to the existence of genuine issue of material fact, and all inferences of doubt are to be drawn against the movant in favor of opponent of the Motion.  In connection with the Court’s analysis of the matters presented on such a motion, all inferences of doubts are drawn against the movant in favor of the party opposing the motion and such a motion should be granted with great caution.
[brief] **POINT IV**  **BECAUSE DEFENDANT DOES NOT IDENTIFY ANY ERRORS AT TRIAL, HE CANNOT CLAIM CUMULATIVE ERROR.**  Lastly, defendant argues that the cumulative impact of errors at his trial deprived him of a fair one, even if each error individually does not merit reversal.  (Db32-33).  The State counters that because defendant does not complain of any actual errors at his trial, he cannot claim cumulative errors deprived him of a fair trial.  “When legal errors cumulatively render a trial unfair, the Constitution requires a new trial. ”  *State v. Weaver*, 219 N.J. 131, 155 (2014).  Importantly, however, “[i]f a defendant alleges multiple trial errors, the theory of cumulative error will still not apply where no error was prejudicial and the trial was fair. ”  *Ibid.*  Here, the State submits that defendant has failed to identify any actual error at trial.  And even if defendant has identified an error, the error was not sufficiently prejudicial.
[brief] Regarding this factor the judge also addressed defendant’s purported show of remorse.  She explained:  The defendant has expressed remorse to [...], it is alleged, and to the psychologist with whom he spoke, and made a statement of remorse in court for deciding to participate in robberies, which resulted in [...]’ death and the dramatic change in the trajectory of his future thereafter.  I note in this[] re-sentencing hearing and in listening to [...]’ statement of remorse that he never mentioned the victim’s name in his statement of remorse, and it does appear to this Court the defendant does not truly acknowledge his full culpability for that death, as same was not an accident where a gun went off during a robbery under circumstances that appear to be accidental or an unintended consequence.