ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] 2.  **Resentencing is required because the trial court did not discuss the aggravating factors, the weights assigned to them, or its refusal to find any mitigating factors. **  The court engaged in no analysis or discussion whatsoever when it pronounced sentence, aside from the following declaration:  As to any aggravating or mitigating factors, I do find the following aggravating factors, number 3, risk that the defendant will commit another offense, number 6, extent of the defendant’s prior criminal record and seriousness of the offenses of which he has been convicted, and number 9, the need to deter the defendant and others from violating the law.  I don’t find that there are any mitigating factors here.  [6T 12-16 to 23.]  This was the extent of the court’s sentencing analysis.  The justification for finding these factors cannot be gleaned from the prosecutor’s presentation either, which was similarly limited to: “I think aggravating factors 3, 6, and 9 are present. ”  (6T 7-1 to 2)  The law is clear that it is improper for a court to fail to explain the factual bases for the aggravating factors it finds.  State v. Case, 220 N.J. 49, 65 (2014) (noting that “trial judges must explain how they arrived at a particular sentence”) (emphasis added).  Court Rule 3:21-4(h) provides that “[a]t the time sentence is imposed the judge shall state reasons for imposing such sentence including. . . the factual basis supporting a finding of particular aggravating or mitigating factors affecting sentence. ” (emphases added).  Merely listing aggravating factors and declining to find mitigating factors, with no elaboration or individualized assessment whatsoever, is inadequate.  The absence of an individualized discussion denies [...] the opportunity for meaningful appellate review of his sentence.  State v. Bienek, 200 N.J. 601, 608 (2010) (explaining that the sentencing court’s explanation of “the reasoning behind its findings . . . is important for meaningful appellate review of any criminal sentence challenged for excessiveness”).
[brief] Defendant did not receive the required 45-day notice for any of the above “significant changes. ”  12 CFR 1026(c)(2)(i).  15 U.S.C. Section 1637(b)(11)(B)(i), (ii) and (iii) require a creditor to provide a written statement of the minimum payment required to repay the cardholder’s balance over 36 months.  A visual inspection by the lower Court of Defendant’s Exhibit K (Da69) would have revealed the incontrovertible fact that Plaintiff failed to provide the required minimum payment amount in that exhibit.
[brief] Respondent states in Section 5Dii of its Brief that “there [was] no bona fide dispute as to the facts…”  Appellant asserts that factual statements in certain account statements are irregular, questionable and suspect.  It is incorrect for Respondent to state that there is no bona fide dispute as to the facts.  Db27 to Db29.  On page 42 of its Brief, Respondent states: “Defendant argues that the [trial] Court incorrectly found that Defendant waived the right to dispute the balances and charges…”  Appellant’s argument is that the trial Court committed plain error because Appellant is entitled to claim the TILA affirmative defense of recoupment or set-off.  On page 43 of its Brief, Respondent asserts: “Defendant does not assert any facts to substantiate that Defendant was ‘double billed’…”  Appellant cited certain statements of account where there is evidence of “double-billing. ”  Db27 to Db29.
[brief] 68  Ivan v. Marlboro Tp. Municipal Utilities Authority, 162 N.J. Super. 466, 468 (App. Div. 1978).  69  Weidling v. Borough of Manville, 412 A.2d 133, 172 N.J. Super. 371  The New Jersey Constitution (1947) provides that the ". . . Legislature shall not pass any . . . law impairing the obligation of contracts."
[brief] Appellant’s reliance upon Nuckel v. Little Ferry Planning Bd., 208 N.J. 95 (2011) for the proposition that the construction of a second driveway constitutes a second primary use is misplaced.  Driveways are an accessory use to a single-family residence.  Driveways are incident and subordinate to a single family-residence and are customarily so.  The holding in Nuckel is factually distinguishable from the present matter.
[brief] ”  [Pa347a]  Contrary to [...]’s prior statements and documents provided to the [...], [...] never issued a $22,500 check to the Firm.  Instead, [...] disbursed the fee as follows: (i) [...] ($20,000) (dated August 6, 2012); (ii) Mary A. [...] ($3,000) (dated August 6, 2012); (iii) Mary A. [...] ($5,000) (dated August 6, 2012); (iv) [...] ($1,952.58) (dated August 6, 2012); and (v) [...] ($47.42) (dated November 12, 2012).  [Id.]  Notably, [...] disbursed four of these checks on August 6, 2012—which was 25 days before [...] represented, in a letter to the [...], that the $22,500 was disbursed to the Firm.  [Pa371a]  Moreover, these five checks were not included in the bank statements or the client ledger that [...] provided to the [...].  [Pa347a]  After discovering these discrepancies, the [...] conducted a second demand audit on February 28, 2013.
[brief] FAC ¶ 65, id.  As facts developed, plaintiffs came to learn that, after entering into an identical solar-rights and land-rights agreement with [...], [...] then proceeded to retain the two engineering firm that had been servicing plaintiffs' needs before the Holland Township planning board and related proceedings.  Those engineering firms, defendants [...] and defendant [...], were named in the original complaint for aiding and abetting [...] and [...]’s theft of plaintiffs’ assets purchased outright from [...].  Despite the fact that these two engineering firms were charged with aiding and abetting theft of Appellants’ business assets, which they held as custodians for Appellants, the motion judge erroneously held that the mere fact that they were “professionals,” somehow necessitated the filing of an affidavit of merit, even though an AOM is not required for common knowledge matters and an AOM motion should not have been entertained without an antecedent Ferriro conference(s).
[brief] The RICO judgment against the [...] mischaracterized payments made from partnership assets for contributions to the partnership as predicate acts of fraud and theft giving rise to RICO liability.  This abuse of a statute intended to target organized crime enabled Plaintiffs to recover far in excess of their losses.  Ambushed by [...]’s invariable rulings in favor of Plaintiffs, her vilification of the [...]’ character, and the exorbitant money awards to Plaintiffs, the [...] naturally believe that the New Jersey courts have treated them unjustly.  They recognize that the age of this case is overwhelming -- that the courts may be inclined to put the case to rest after decades of litigation between the affluent parties on both sides.  But, an unjust result is not cured by its age.  Had [...] followed this Court’s original 2006 directive for an accounting and valuation of [...]’s 25% interest in the partnership, and not allowed essentially a new tort and RICO case to be filed, the case would have been concluded by 2009.
[directive] An individual’s status evolves from a resistor to an assailant when they use force, threaten to use force, or otherwise act in an aggressive manner that increases the likelihood that they may cause physical injury to an officer or to another person.  However, flight from an officer does not, on its own, qualify a person as an assailant.  When dealing with an individual who poses a threat to the officer, the individual could be considered either a threatening assailant or an active assailant.
[brief] (2T 100-22 to 101-7; Da 67 at 4:08 to 8:12)  However, [...] explained that they split up at the intersection of East 16th and Governor Street and that he turned left onto Governor  Indeed, detective [...] testified that based on [...]’s report, she believed that the shooter fled east on Putman and kept heading east, crossed over Madison, and perhaps encountered [...] on 22nd.
[brief] Plaintiff emphasizes that the defendant was allowed to introduce the results of a complaint survey investigation conducted by the NJDOH, without presenting the testimony of the surveyor, [...], RN, thus allowing defendant to rely upon documentation “finding defendant committed no violations of federal and state law with regard to [...]’s death” (Pb1.)  Plaintiff further contends that her experts [...] and [...] were prohibited from giving testimony regarding the conduct of individual members of defendant’s nursing staff, particularly the respiratory therapist.  In fact, the trial court, by way of its rulings on the parties’ motions in limine and over the course of the trial, allowed plaintiff’s experts to assert that the defendant violated various federal and New Jersey statutes and regulations.  Also at plaintiff’s request, the Court instructed and charged the jury that it could find “the facility” or the “nursing home”, as well as its nursing staff, deviated from the standard of care applicable to a long term care facility.  Defendants thus appropriately inquired as to plaintiff’s experts’ awareness of the results of the complaint survey conducted by the NJDOH in order to rebut and impeach plaintiff’s expert’s claims that defendant was noncompliant.  Defendant did not introduce the NJDOH survey’s finding that there were no regulatory violations in connection with [...]’s care in order to establish the truth of that conclusion or into evidence.  The jury nonetheless responded “yes” to the first question on the jury verdict sheet, but further found proximate cause to be lacking, thus rejecting plaintiff’s theory of the case, that the decedent died of a mucus plug, a theory that has nothing to do with the regulations relating to staffing and the allocation of resources listed in the jury charge.  Similarly, the trial court allowed plaintiff’s experts to present their respiratory therapy opinions against “the facility” or “the nursing home” although neither [...] nor [...] was qualified as a respiratory therapy expert.  Plaintiff also was permitted to question defendant’s fact witnesses in detail regarding respiratory therapy and medication issues.  Plaintiff, having been afforded every opportunity to present her causes of action and theory of the case to the jury as she wished, cannot now complain that she has been a victim of prejudice constituting reversible error.  The trial court’s orders of judgment on the jury verdict and denying plaintiff’s motion for a new trial must be affirmed.
[brief] All case law post 2014 in the Superior Court and/or the District Court which analyzes the private right of action under the NJCFLA can be traced back to [...].  The first cases in the Superior Court to address the private right of action under the NJCFLA were New Century Fin. v. Trewin, 2018 N.J. Super. Unpub. LEXIS 1688 (Ch. Div. May 24, 2018) (Pa233) and Woo-Padva v. Midland Funding LLC, 2022 N.J. Super. Unpub. LEXIS 96 (Law Div. Jan. 21, 2022) (Pa267).  Woo-Padva cites to Browne v. Nat'l Collegiate Student Loan Tr., No. 21-11871 (KM) (JSA), 2021 U.S. Dist. LEXIS 244537, at *8 (D.N.J. Dec. 22, 2021) (Pa201)—who in turn cites to Jubelt v. United Mortg. Bankers, Ltd., Civil Action No. 13-7150 (ES) (MAH), 2015 U.S. Dist. LEXIS 84595, at *14 (D.N.J. June 30, 2015) (Pa205), with Jubelt citing [...].  In addressing the private right of action under the NJCFLA, the District Court in [...] reasoned that in order to determine whether the NJCFLA implies a private right of action, “the Court must consider . . . whether there is any evidence that the Legislature intended to create a private cause of action under the statute and whether implication of a private cause of action in this case would be consistent with the underlying purposes of the legislative scheme.
[brief] Cronin could have been resolved on the same basis as Ladenheim, i.e. that in Cronin a treating physician, contributed to the production of the settlement fund and an equitable lien imposed, so justice in Cronin was obtained, albeit for her wrong reasons.  The assignment of rights to the settlement fund before it is reduced to judgment or settlement, is, in the words of the New Jersey Court of Errors and Appeals, (the predecessor of the New Jersey Supreme Court), nugatory, a nullity.  Cronin changes nothing because it is an Appellate Division decision, and it conflicts with Supreme Court precedent, and the right of a treating physician to an equitable lien is established in Ladenheim.
[brief] ”).  Courts have declined to consider objections to the constitutionality of a statute or common law rule when such objections are raised for the first time on appeal, finding that these objections do not constitute “important matters of public concern”.  *Alan J. Cornblatt, P.A. v. Barow*, 153 N.J. 218, 247 (1998) (superseded on other grounds); *Ferraro v. Demetrakis*, 167 N.J. Super. 429, 431 (App. Div. 1979) (superseded on other grounds).  Defendants raise for the first time on appeal the arguments in Sections II.A.3 and III of their Brief.
[brief] **THE CUMULATIVE EFFECT OF THE NUMEROUS TRIAL ERRORS DENIED DEFENDANT A FAIR TRIAL.  (Not Raised Below)**  Even if the above errors do not individually warrant reversal, reversal is required under the cumulative-error doctrine because they collectively denied [...] a fair trial.  *N.J. Const.* art. I, ¶ 1; *State v. Weaver*, 219 N.J. 131, 155 (2014).  **POINT V**
[directive] Approved by : 9  Downward departure for substantial cooperation?  Yes No  Extent of Reduction (Approval is required.  If Yes, treat worksheet as a confidential record)  Approved by Plea Offer Expires On Completed by 4/04  SCHEDULE I  Page 3 of 5  NOTICE:  This plea offer is subject to withdrawal and modification based on new information about the offense or defendant, including, but not limited to, defendant’s conduct occurring after this offer was issued (e.g. committing a new offense or failing to appear in court).  DETERMINATION OF CRIMINAL HISTORY
[directive] 3.8.3  Force may be used against specific individuals in a crowd for lawful purposes in accordance with the other provisions of this Policy.  Restrictions apply to the use of certain types of force in a crowd as follows:  (a)  OC spray: (1) may be used against specific individuals who are active resistors, threatening assailants or active assailants as defined in Section 3.3 above; (2) shall not be used where bystanders would be unreasonably affected; and (3) shall not be used against passive resistors, or indiscriminately against groups of people.  (b)  CEDs: (1) may be used against specific individuals who are threatening assailants or active assailants as defined in Section 3.3 above; (2) may be used only when the individual can be accurately targeted; and (3) shall never be fired indiscriminately into crowds.  (c)  Less-lethal ammunition: (1) may be used during civil disturbances only against specific individuals who are threatening or active assailants; and (2) shall not be used during a civil disturbance against groups of individuals.  3.8.4  Force may be used against groups of people only if authorized by the Incident Commander (IC) and only when other means of gaining compliance with lawful directives have been attempted and shown to be ineffective or are not feasible.
[brief] (Da114).  The Preliminary Investigation Report  The [...]’s planner, [...], P.E., P.P., C.M.E. (“Board Planner”) prepared a report entitled preliminary investigation report, dated June 2023 (“Preliminary Investigation Report”), (Da36-Da49), which stated that the Property is subject to ongoing environmental remediation caused by release of Light Non-Aqueous Phase Liquids (“LNAPL”) also known as gasoline, diesel, motor oils and similar materials.  (Da39).  It further noted that a Remedial Action Report and Remedial Action were both due to be completed by March 31, 2024.  (Da39).  The Preliminary Investigation Report concluded that because the Property is in need of remediation, until remediation is completed, the condition is detrimental to the health, safety and welfare of the community, and this satisfies criterion (d) of N.J.S.A. 40A:12A-5.  (Da39).  The Preliminary Investigation Report stated, site photography revealed that all uses had ceased on or around July 2017 and that the Property had been unoccupied and utilized for nearly six years.  (Da39).  It also noted that the building and parking lot have become unkempt and that while no code violations have been issued, the current state of the Property indicates that there are property maintenance violations. (Da39).  The Preliminary Investigation Report concluded that because commercial use of the property had been discontinued, the Property satisfied N.J.S.A. 40A:12A-5(b).  (Da39).  Upon receiving the Preliminary Investigation, Plaintiff submitted a lease to the Board Planner (the “Lease”).  (D52-Da64).  Based upon this new information, the Board Planner prepared “Addendum No.1” to his Preliminary Investigation (“Addendum”).  (Da119-Da120).  The Addendum stated although additional information has been received that indicates the Lease has existed on the property since 2018, the Lease expired on January 31, 2023.  (Da120).  As a result, the Addendum concluded that that the Board Planner’s finding that the Property satisfied N.J.S.A. 40A:12A-5(b) remained unchanged.  (Da120).  The Joint Land Use Board Hearing
[brief] ”  Id. at 5, n. 12.  (005a.)  This comment seems more than a little cynical; of course the Petition was an expression of interest, and in no way did the Board or Board Staff, despite multiple rounds of discovery, ever ask or indicate that the project was “dead in the water” from the get-go.  Additionally, the Board then denied the approval based upon its “concern” that the development would not be done on time based upon concerns with the [...] approval process.  This argument, by its nature, accepts that the Project could be in the TI program.
[brief] (25T 108-4 to 7)  Moreover, defense counsel stressed on cross-examination that social-media posts of [...]’ seemed to indicate in August 2018 that he had a laptop at that time.  (25T 113-1 to 23)  [...] also claimed never to have noticed a red mark that was on defendant’s forehead when he was interviewed on January 9, but he agreed that defendant told him he was wearing a hooded sweatshirt during the struggle, which might account for his lack of other similar injuries.  (25T 93-10 to 20)  Further, [...] agreed that the 5:09 p.m. phone call that [...] placed while en route to the Keogh property on January 9 was to someone named [...], not to defendant.  (25T 71-1 to 20; 25T 77-23 to 24)  After his arrest, defendant placed calls to his family from the county jail which were recorded.
[brief] (Da3186-3208)  It did accept “net asset value” as the proper valuation method.  It also accepted [...]’s opinion of [...]’s net asset value.  (Da3199-3200)  However, in a footnote the Court ruled that Plaintiffs’ vote to have [...] reimburse their legal fees, thereby charging those fees in substantial part to [...], was allowed by the “business judgment rule”.  (Da3196 n.2)  Thus, the Court accepted [...]’s reduced net asset value of $6,232,073 (which had allowed the legal fee reduction as a “long term liability” of [...]).  The Court valued [...]’s 29.5% equity interests at $1,838,461.54.
[brief] When exercising its gatekeeping function a condemnation case, the Court’s analysis must start with the seminal case of State v. Gorga, 26 N.J. 113 (1958):  The specific question is whether market value as of the date of taking may be affected by the prospect of an amendment of the zoning ordinance.  Analytically, the question is one of fact.  Abstractly considered, it would not matter whether the zoning change is probable or remotely possible if the parties to the sale would in fact be influenced thereby in fixing the price.  . . .  Zoning amendments are not routinely made or granted.  A purchaser in a voluntary transaction would rarely pay the price the property would be worth if the amendment were an accomplished fact.  No matter how probable an amendment may seem, an element of uncertainty remains and has its impact upon the selling price.  At most a buyer would pay a premium for that probability in addition to what the property is worth under the restrictions of the existing ordinance.  In permitting proof of a probable amendment, the law merely seeks to recognize a fact, if it does exist.  In short if the parties to a voluntary transaction would as of the date of taking give recognition to the probability of a zoning amendment in agreeing upon the value, the law will recognize the truth.
[brief] Each of the six factors, when applied to the facts of this case, weigh in favor of the public interest in disclosure of records and information concerning the [...]’s failure to prosecute public corruption charges against a former judge.  Loigman, 102 N.J. at 113.  Most importantly, because the [...]’s investigation of the matter is over and that the [...] has made it clear that it has declined to prosecute [...], there is no need for confidentiality.  “The timing of a request may affect the balancing process” because “the need for confidentiality in investigative materials may wane after the investigation is concluded. ”  NJMG, 229 N.J. at 580 n.10.  “While there is a real need to deny access where there is an ongoing law enforcement investigation, or where the protection of witness information or a witness’s identity is at stake, the same values do not survive a balancing after the investigation is closed."
[brief] The location of the fall is in an area on the side of the building.  [Pa947 ([...] Deposition) at 55:25 – 56:4; 75:7 – 13; Pa950 (accident location photos)].  As photographs of the area reflect, a strip mall patron would have reasonably perceived the area to be a walkway and foreseeably used it as such.  [Pa950 (accident location photos)].  Plaintiffs’ expert offered the unrebutted opinion that this area was a walkway or sidewalk pursuant to applicable safety and construction codes:  The subject location is considered to be a walkway and an area where pedestrian traffic is reasonably foreseeable.  The following consensus standards address these types of exterior surfaces.  walkway, n—walking surfaces constructed for pedestrian usage including floors, ramps, walks, sidewalks, stair treads, parking lots and similar paved areas that may be reasonably foreseeable as pedestrian paths.  Natural surfaces such as fields, playing fields, paths, walks, or footpaths, or a combination thereof, are not included.  F1637 walkway surface, n—a structure intended to be used by a person attempting to walk.  (ASTM International - ASTM F13.50 F1637; F1646).  [Pa797].  Frankly, it is baffling how the motion judge could have determined that this area was not a walkway, based on the single review of a photograph that clearly reflects, to the contrary, that customers, notably those who parked in the spots adjoining that walkway, would have reasonably and foreseeably used this area to access the building.  [Pa950].  As noted, even though Plaintiffs offered unrebutted expert proof that the area was legally defined as a walkway, the Law Division ignored this evidence; pointed to a single photograph; and determined, factually, based on a single photograph, that this was actually a “common area.