ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Pa392-Pa393.  Notably, pursuant to N.J.S.A. 40:55D-2(e), the area is consistent with the surrounding area, the population density is appropriate, and the project will create a desirable visual environment.  Id.  The development’s architecture and landscaping bring a desirable visible environment, especially as the lot has remained vacant and unimproved for years.  Pa271, at 52:15-53:4.  Moreover, the development will have minimal effect on the population density as the development will only generate a maximum of 44 to 57 new residents.  Pa270, at 47:2-51:19.  Based on the “efficiency created in this type of development,” it was found that the development “does help support the commercial nature of Kinderkamack and also provides for a newer type of resident apartment in the [B]orough that is in demand[.]”  Pa271, at 51:20-52:9.  [...] also highlighted the lack of development and multi-family units within the Borough, with very few projects approved in the prior decade.
[brief] Count II: Alleged Breach of Fiduciary Duties:  "Claims of breach of fiduciary duty on the part of directors will also be generally regarded as derivative claims unless the injury to shares is distinct."33  "For example, claims against directors for the selective dissemination of information to one group of shareholders over another are not derivative in nature because the unfair dealing unequally affects shareholders that were deprived of the information."34  This case does not present "distinct" or "unequal" damages to shareholder rights at the [...] corporate level or at the [...] level.  The only parties that would have standing to bring such a claim would be [...] (directly) or the [...] (bringing a derivative claim on behalf of [...]).  Plaintiffs did not assert such claims35.  Thus, and for the general reasons set forth as to Count I, Plaintiffs have no standing as to Count II.
[brief] DIVISION  [...], Plaintiff-Appellant, vs. [...], and [...], [...], and JOHN AND/OR JANE DOES 1-20 (Names Being Fictitious), in their individual and corporate capacities, and as aiders and abettors, Defendants-Respondents.  Docket No.: [...]  On Appeal From: Superior Court of New Jersey, Law Division, Cumberland County  DOCKET NO.: [...] SAT BELOW: Hon. [...], J.S.C.  BRIEF OF DEFENDANTS-RESPONDENTS [...], BARBARA CONICELLO, AND [...]
[brief] Again, although the Superior Court lacks jurisdiction to hear [...]’s school law claims under Title 18A reserved for the Commissioner of Education, for the sake of argument, the only conceivable way that [...]’s Counterclaim seeking to enforce compliance with N.J.S.A. 18A:7F-9(e)(3) can be properly brought before the Superior Court is under R. 4:69-1, et seq., where a complaint in lieu of prerogative writ is required to force a public entity to comply with a statute.  However, even under that mechanism, R. 4:69-5, entitled, Exhaustion of Remedies, provides, “Except where it is manifest that the interest of justice requires otherwise, actions under R. 4:69 shall not be maintainable as long as there is available a right of review before an administrative agency which has not been exhausted”.  Here, the Commissioner of Education certainly is endowed with the authority to adjudicate [...]’s accusations that the Board failed to comply with N.J.S.A. 18A:7F-9(e)(3), and can redress or remediate the claim by ordering the Board to pay [...] a sum certain.
[brief] In Munoz v. N.J. Auto. Full Ins. Underwriting Ass’n, the Supreme Court noted “the Legislature’s concern that insurance companies were canceling policies capriciously and not providing policyholders with sufficient time to find alternative coverage. ”  145 N.J. 377, 387 (1996).  While [...] was fortunate enough to obtain coverage from [...] and [...], the ambiguity arising from the lack of formal cancellation notice here gives rise to a legitimate concern that there is no recourse for insured subcontractors if higher contractors or CCIP insurers could capriciously cancel their insurance before a certain portion of a project, leaving that subcontractor without sufficient time to find alternative coverage and without the ability to work on the project it contracted for.  New Jersey courts have long upheld a strong public policy favoring the --- 4
[directive] Such lists are also potentially misleading.  For example, if an investigative employee who has that must be turned over happens to be the sole witness to a Giglio serious crime, it may be necessary to call the employee as a witness notwithstanding any the employee may have.  For these reasons, alternatives to a do-not-call list Giglio should be considered.  A do-not-call list is different than a system to identify investigative employees who have potential Giglio, which is permissible.  This Directive does not address remedial or consequential action on the part of the law enforcement agency.
[brief] ###  Cases - **Arthur v. St. Peters Hospital**, 169 N.J. Super. 575 (1979) ..18,21 - **Baldasarre v. Butler**, 132 N.J. 278 (1993) .......................11 - **Bahrle v. Exxon Corp.**, 279 N.J. Super. 5 (App. Div. 1995), aff'd, 145 N.J. 144 (1996) .........................19, 20 - **Brill v. Guardian Life Ins. Co. of Am.**, 142 N.J. 520, (1995)  ..10 - **Cassano v. Aschoff**, 226 N.J. Super. 110 (App. Div. 1988) ......15 - **Lombardi v. Masso**, 207 N.J. 517 (2001)  .........................10 - **Majestic Realty Assocs., Inc. v. Toti Contracting Co.**, 30 N.J. 425 (1959)  ..............................................11, 12,14 - **Mavrikidis v. Petullo**, 153 N.J. 117 (1998) ....................13, 15 - **Mercer v. Weyerhaeuser Co.**, 324 N.J. Super. 290 (App. Div. 1999).  .....................................................2, 18, 21 - **Patano v. New York Shipping Ass'n**, 254 N.J. 101 (2023)  .........22 - **Prudential Prop. & Cas. Ins. Co. v. Boylan**, 307 N.J. Super. 162 (App. Div.), certif. denied, 154 N.J. 607 (1998) ...........10 - **Puckrein v. ATI Transp., Inc.**, 186 N.J. 563 (2006) ..........11, 15 - **Sears Mortg. Corp. v. Rose**, 134 N.J. 326 (1993) ..............17 - **Simpkins v. 7-Eleven, Inc.**, 2008 N.J. Super. Unpub. LEXIS 2450, *22-24 (App. Div. 2008) ................................. 20, 21 - **Wilzig v. Sisselman**, 209 N.J. Super. 25 (App. Div.), certif. denied, 104 N.J. 417 (1986) .................................17 - **Znoski v. Shop-Rite Supermarkets, Inc.**, 122 N.J. Super. 243 (App. Div. 1973) ..............................................14 ### Rules - **R. 4:46-2** .................................................................10 ### Restatement - **Restatement (Second) of Torts § 427 comment a** ..................14 PRELIMINARY STATEMENT Plaintiff/Appellant [...] (“Plaintiff”), along with her husband [...], filed a personal injury action for injuries sustained on April 26, 2019 as a result of Defendant, [...] (“Hernandez”) pushing a cart, known as a U-Boat, into Plaintiff while she was shopping in the meat department of Defendant/Respondent [...] (“[...]”) located at [...].
[brief] [7T 49-12 to 50-4; Pa335].  The sign, which is 19.65 square feet in area, was designed to be similar to the signage permitted elsewhere in the Township and actually conforms to the requirements in the R-20A Zone under § 230-214(F)(2) of the LUDO, thereby eliminating the need for a variance.  [7T 50-4 to 50-7].  [...]’s planner testified that the signage was necessary for wayfaring and traffic safety, and that the benefits of having signage were greater than the negative impacts.  [7T 50-8 to 50-18].  But the Board reached the contrived conclusion that, on one hand, there was nothing presented aside from a desire to maximize visibility for a commercial use, but that if a commercial use had been sought, a modest sign would have been approved.  [Pa142, ¶ 45].  [...] did not need a variance, but justified relief for one anyway.  [...] did not require relief regarding the number of off-street parking spaces.  This issue is governed by the RSIS.
[brief] ## TABLE OF JUDGMENTS, ORDERS AND RULING UNDER APPEAL | ITEM | PAGE | |----------------------------------------------------------------------|------| | Initial Trial Decision by Municipal Court.  (February 8, 2013)  | 1T | | Order And Decision On Post-Conviction Relief.  (January 11, 2023)  | 1a | | Order And Decision On Reconsideration Of Post-Conviction Relief.  | | | (February 16, 2023) | 3a | | Law Division Oral Decision On Appeal De Novo.  | 3T | | Trial Court Order/Judgment/Decision (11/02/2023).  (Order on | 4a | | Municipal Appeal).  | | | Amended Trial Court Order/Judgment/Decision (11/02/2023).  (Order | 6a | | on Municipal Appeal).  | | # TABLE OF AUTHORITIES
[brief] This step requires a court to “identify the aggravating and mitigating factors and balance them to arrive at a fair sentence. ”  State v. Natale, 184 N.J. 458, 488 (2005).  Simply enumerating the applicable aggravating and mitigating factors is insufficient.  State v. Kruse, 105 N.J. 354, 363 (1987).  Rather, a court’s sentencing decision must “follow[] not from a quantitative, but a qualitative analysis. ”  Ibid.  Moreover, “[t]he finding of any factor must be supported by competent, credible evidence in the record. ”  State v. Case, 220 N.J. 49, 64 (2014).  In this case, the defense asked for the mandatory minimum sentence of 30 years with a 30-year period of parole ineligibility.  (17T 18-9 to 15)  It argued that anything more than that sentence would be a life sentence, practically if not officially, and that [...] deserved the opportunity to life outside of prison again.  (17T 18-12 to 13)  The court rejected the mitigating factors proffered by the defense: (8) the defendant’s conduct was the result of circumstances unlikely to recur; and (9) the character and attitude of defendant indicate that he is unlikely to commit another offense.  N.J.S.A. 2C:44-l(b).  (17T 36-8 to 37-13)  The judge found aggravating factors (3), that there is a risk that the defendant will commit another offense; (6) the extent of the prior record and the seriousness of the offenses of which he has been convicted; and (9), the need to deter.  N.J.S.A. 2C:44-l(a) (17T 31-10 to 32-17)  The trial court made two errors in its consideration of the aggravating factors and in determining that life was the appropriate sentence.
[brief] Therefore, the first example does not apply to our facts.  The second example the Supreme Court references where undue influence will be found is in situations where the gift leaves the donor without adequate means of support.  Id. at 31.  In the present matter, however, there has never been a representation on the record that [...] cannot afford the monthly payment or has been left incapable of supporting himself.  In fact, the monthly payment that [...] paid was and is what he said he could afford (2T35:12-15).  The Court then notes that where the donor is not dependent on the donee as in the two prior examples, then “independent advice is not a prerequisite to the validity of an improvident gift even though the relationship between the parties is one of trust and confidence. ”  Id. at 31.  Therefore, while Plaintiffs argue that [...] never had benefit of counsel in these transactions (Pb8), the law as laid out in Pascale does not require it.  The elderly [...] was never dependent on [...] in any sense, nor did this transaction leave [...] financially vulnerable.  The Pascale Court was not done enumerating situations where undue influence may be found, however.
[brief] (1T 30-18 to 19; Da 2)  After hearing testimony and argument, the trial court denied [...]’s motion to suppress.  (Da 3)  The court first concluded that the stop was lawful because the officers had reasonable and articulable suspicion that a traffic violation had occurred.  The court explained that, pursuant to N.J.S.A. 39:4-126, a vehicle must signal a lane change when any other traffic may be affected by the movement.  (Da 5)  Relying on the officers’ testimony, the court found that the sedan did not activate its blinker until it had already begun to change lanes and that other cars could have been impacted by this movement.  (Da 5-6)  Second, the court held that the warrantless search of [...]’s person was lawful in light of the odor of marijuana emanating from the vehicle and [...]’s admission that there was marijuana in the center console.  (Da 6-9)  On appeal, [...] does not challenge this second ruling and instead focuses on the lawfulness of the stop.
[brief] Senate Budget and Appropriations Meeting (continued)  Pending Introduction and/or Referral: A1121 [[...]/[...]+8], Veteran of US or organized militia misrepresentation-upgrades certain crimes A3870 [[...]/[...]+11], Defense Against Porch Pirates Act; amends theft statute A5484 [[...]/[...]+1], Racing Comm.-adopt procedures to enforce internal controls req. annual audit A6060 [[...]/[...]+1], Funeral, burial, crematory services-suppl. approx. increase reimb Work First-$8M ACR217 [[...]/[...]+2], Capitol Complex Security Screening Building & Secure Courtyard Project-approves S3817 [[...]], Racing Comm.-adopt procedures to enforce internal controls; req. annual audit S4996 [[...]], Coastal area development, cert-revise permitting threshold req CA/RA permit S4302 [[...]/[...]], Estab. Dept. of Diversity, Equity and Inclusion as princ. Dept. of Executive Branch S4303 [[...]/[...]], Req. Dir of Div. on Investment to attempt to use underrepresented financial institutions S4308 [[...]], Creates Helmets to Hardhats program in Dept. of Military and Veterans Affairs; makes an appropriation S4309 [[...]] Awards sch. Security grants under “Securing Our Children’s Future Fund”; appropriates $5,150,531 SCR164 [[...]], Capitol Complex Security Screening Building & Secure Courtyard Project-approves Senate Education Meeting
[brief] At the time of his official termination, [...] had fifteen (15) years and nine (9) months of service and/or credit in the PFRS.  Ibid.  [...] appealed his removal to the New Jersey Merit System Board, now known as the New Jersey Civil Service Commission (hereinafter “Commission”).  (Aa54).  In the normal course, the matter was transmitted to the Office of Administrative Law (hereinafter “OAL”) for adjudication.  Ibid.  To this end, hearings were conducted before the OAL on December 8, 2009 and March 25, 2010.  Ibid.  Thereafter, in an initial decision dated December 20, 2010, the Honorable [...], A.L.J. affirmed [...]’s removal from employment.  (Aa7-24).  The initial decision was then sent to the Commission for consideration.  (Aa25-  The Commission, in its Final Administrative Action dated February 17, 2011, accepted and adopted the Findings of Fact and Conclusions of Law contained in the initial decision as well as [...]’s recommendation to uphold [...]’s removal.  Ibid.  Subsequently, [...] appealed the Commission’s final decision to this Honorable Court.  (Aa35-43).  In an unpublished opinion dated July 9, 2012, the Appellate Division affirmed the Commission’s decision and, thus, [...]’s removal from employment.  Ibid.  [...] then filed a Petition for Certification with the New Jersey Supreme Court seeking review, but the Petition was denied by the Court on December 4, 2012.  (Aa44).  **PROCEDURAL HISTORY**
[brief] The FELA places an affirmative duty on railroad employers such as defendant to provide employees with a reasonably safe workplace.  As a jury trial is an integral part of the statute’s remedial purpose, a court should grant dismissal only under circumstances where there is zero possibility that a jury could find in the injured employee’s favor.  The trial court denied [...]’s right to a jury trial, putting itself in the place of a jury by determining that the evidence produced, which included expert opinion, prior criminal activity, failure to adhere to industry standards, and previous attacks on employees of [...], failed to show negligence or that the subject attack was foreseeable.  The trial court erred in finding there was no genuine issue of material fact and there was zero possibility a jury could find in the employee’s favor.
[brief] Both Defendants and the Trial Court are respectfully incorrect.  Plaintiffs are seeking payment of earned and unpaid wages for a discrete time period, between the promotion dates in 2016 and when the Superior Court permitted Defendants to alter Plaintiffs’ Collective Negotiations Agreements (“CNAs”) and other terms and conditions of employment on June 7, 2017.  These officers agreed to be promoted without the contractually mandated wage increases in an effort to protect the integrity of the [...] (“[...]”) and public safety.  The City promised to retroactively pay these officers once successor CNAs were approved by the parties or terms were set by an interest arbitrator.  (Pa000049; 51).  The intent of the parties was for the promoted officers to receive the owed amount under the then-current CNAs and any increase agreed to or awarded retroactive to promotion.  In no uncertain terms did the parties intend that these officers were not going to receive any promotional pay if an increase to the then current promotional rates was not effectuated.  At minimum, these officers are entitled to the CNA promotional rate.  Respondents/Defendants argument that they can dissolve agreements for earned wages and ignore New Jersey law which unequivocally requires the payment of earned wages pursuant to the MSRA is patently inconsistent with longstanding judicial precedent, express statutory terms, fundamental concepts of fairness and common sense.  Despite Defendants’ arguments, a reasonableness standard does apply to Defendants’ actions and was not considered by the Trial Court.  Moreover, the June 7, 2017 Notice of Implementation and related Settlement Agreement did not address or include terms impacting promotional pay or back pay for the period alleged in this matter.  To be clear, this matter concerns a finite time period from the 2016 promotion dates until the June 7, 2017 implementation of new salaries.
[brief] To determine whether an injury is compensable, “[t]he pivotal questions under the premises rule are (1) where was the situs of the accident, and (2) did the employer have control of the property on which the accident occurred. ”  [citation omitted].  “[P]laces that are not under the control of the employer are not considered part of the employer’s premises for purposes of workers’ compensation benefits. ”  [citation omitted].  That said, “[t]he meaning of ‘control’ under the Act is more expansive than under formal property concepts. ”  [citation omitted].  “[T]his Court has stated that control exists when the employer owns, maintains, or has exclusive use of the property. ”  [citation omitted].  It is also well-established that “when compensability of an accident depends on control of the employer, that test is satisfied if the employer has the right of control; it is not necessary to establish that the employer actually exercised that right. ”  [citation omitted].  *Lapsley*, 249 N.J. at 436.
[brief] Like the plaintiff in *Stelluti*, nothing stopped [...] from consulting a third party about [...]’s terms (especially in light of her alleged inability to understand English) before confirming that she reviewed and agreed to them.  [...] neither imposed a deadline for [...] to assent to its terms nor prevented [...] from taking her time to review [...]’s terms; it was [...] who controlled the time at which she reviewed and agreed to [...]’s terms.  Under these circumstances, to the extent [...]’s terms qualify as a contract of adhesion, they are “a fairly typical adhesion contract in its procedural aspects” and are “not void based on any notion of procedural unconscionability. ”
[brief] Court’s Decision and Order, filed January 23, 2024  ###  TABLE OF AUTHORITIES | Authority | Page | |--------------------------------------------------------------------------|------| | **Clark v. Clark**, 429 N.J. Super. 61 (App. Div. 2012) | 7 | | **Duratron Corp. v. Republic Stuyvesant Corp.**, 95 N.J. Super. 527, *certif. denied*, 50 N.J. 404 (1967) | 4 | | **Fiore v. Fiore**, A-2539-21 (App. Div. Apr. 16, 2024)(P-846) | 10 | | **Gac v. Gac**, 186 N.J. 535 (2006) | 6 | | **Giarusso v. Giarusso**, 455 N.J. Super. 42 (App. Div. 2018) | 10 | | **Gotlib v. Gotlib**, 399 N.J. Super. 295 (App. Div. 2008) | 5, 9 | | **Ionno v. Ionno**, 148 N.J. Super. 259, 261 (App. Div. 1977) | 8 | | **Loro v. Colliano**, 354 N.J. Super. 212 (App. Div. 2002) | 9, 10| | **L.V. v. R.S.**, 347 N.J. Super. 33 (App. Div. 2002) | 8 | | **Lynn v. Lynn**, 165 N.J. Super. 328 (App. Div. 1979), *certif. denied*, 81 N.J. 52 (1979) | 8 | | **Martinetti v. Hickman**, 261 N.J. Super. 508 (App. Div. 1993) | 8 | | **Mayer v. Mayer**, DOCKET No. A-5939010T2 (App. Div. Jan. 25, 2013) | 8 | | **Newburgh v. Arrigo**, 88 N.J. 529 (1982) | 5, 6, 7| | **Saffos v. Avaya, Inc.**, 419 N.J. Super. 244 (App. Div. 2011) | 9 | | **N.J.S.A. 2A:34-23(a)** | 5 | | RPC 1.5(a) | 10 | Rule 4:42-9
[directive] MANDATORY  12-HOUR IMPOUNDMENT OF MOTOR VEHICLES  expiration of the 12-hour period of impoundment will be governed by existing policies and procedures of the law enforcement agency.  Summary: Impounding of a Vehicle; and Release of an Impounded Vehicle  Under the provisions of N.J.S.A. 39:4-50.23(a), the vehicle operated by the arrested person will have been impounded, and that vehicle must be held, in impound, for at least 12- hours following the arrest of the operator of the vehicle.  The Guidelines in this Appendix B "Guidelines: Mandatory 12-Hour Impoundment of Motor Vehicles.
[brief] (1T18-4 to 7).  [...] radioed to patrolling officers in the area to conduct a pedestrian stop.  (1T11-24 to 12-2).  Upon seeing marked patrol vehicles, but before being stopped, the males immediately began to “blade” their bodies away from police presence, which based on his training and experience was consistent with firearm possession.  (1T12-6 to 17).  Based on these observations, officers detained defendant and the three other males and frisked them for weapons for officer safety.
[brief] His tire “gave out,” and he drove into a wooded area behind a Travel Lodge.  (2T 207-5 to 23; 2T 211-13 to 16).  [...] continued that he entered the wooded area at 45-50 mph, but that the ground cover slowed him down.  He denied that he had crashed into anything in the woods.  (2T 220-10 to 20).  When [...] stopped, he tried to lock his door, --- 7 Counsel for defendant [...] argued in summation that [...] received his injury from crashing into an object in the woods.
[directive] State (Tp. of West Orange) v. Paserchia, 356 N.J. Super. 461 (App. Div. 2003).  In addition, prosecutors must adhere to the requirements of R. 7:6-2(d)(3) that the complaining witness (police or law enforcement officer, or private citizen) and the victim are present in court, and have been “consulted about the agreement,” and, where applicable the provisions of N.J.S.A. 39:4-50.12, where a victim suffered injuries, as defined in the statute.
[directive] Do you have any existing opinions or strong feelings one way or another about such cases?  If the answer to Question No. 7 is affirmative, ask the following question at sidebar:  Standards for Jury Selection  Promulgated by Directive #21-06 (December 11, 2006)  Page 28 of 29  If so, what are your opinions?  8.  Have any of you or members of your immediate family ever suffered any complications from [specify the medical field involved]?
[brief] He also admitted he could see grout on the back of [...]’s neck and head.  [7T 138:5-8; DLa 004 - 013].  During the trial, the only body part [...] positively identified as having grout on it was his left cuff.  [7T 81:2-5].  [...]’s counsel produced a blow up photo of the bodycam video to illustrate the grout on his left cuff.  Despite several minutes of bodycam footage of [...] at [...] post-incident, this was the only photo counsel blew up for the jury.  During closing argument, [...] told the jury that Plaintiffs could have blown up any image from the extensive bodycam videos but the trace amount of grout on his left cuff was the best they could do to support [...]’s allegation that he was covered in grout.  [11T 54:21-55:14].