ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] ###  Cases: - **American Fire Cas. v. Roller,** 860 N.E.2d 1275 (Ind. Ct. App. 2007) ..................................................34 - **Arapaho Owners Ass’n Inc. v. Alpert,** 199 Vt. 553, 128 A.3d 397 (2015) .........................................................41, 43 - **Baisley v. Missisquoi Cemetery Ass’n,** 167 Vt. 473, 708 A.2d 924 (1998) ..........................................................30 - **Beukas v. Fairleigh Dickinson Univ,** 255 N.J. Super. 420, 605 A.2d 708 (App. Div. 1992) ..............................33-34 - **Brill v. Guardian Life Ins. Co. of Am.,** 142 N.J. 520, 666 A.2d 146 (1995) .........................................................20 - **Cathay Mortuary (Wah Sang) Inc. v. United Pac. Ins. Co.,** 582 F. Supp. 650 (N.D. Cal. 1984) .......................................................23, 36, 47 - **CFTC v. Weintraub,** 471 U.S. 343 (1985) .............................................................................26 - **City of Burlington v. Glens Falls Ins. Co.,** 133 Vt. 423, 340 A.2d 89 (1975) ............................................................43 - **City of Ypsilanti v. Appalachian Ins. Co.,** 547 F. Supp. 823 (E.D. Mich. 1982), aff’d mem., 725 F.2d 682 (6th Cir. 1983)
[brief] (17T:178-4); (17T:197-19 to 13).  However, when it came time to mitigating factors, the Court stated “since his incarceration, the defendant has successfully, excuse me, has succeeded academically and has not claimed that incarceration harms his mental health. ” (17T:212-12 to 15).  He’s actually even obtained some college credits at YDC. ” (17T:212-15 to 17).  “Therefore, for these reasons, this Court does not find the mitigating factor 11 applies because there is no hardship to the defendant. ” (17T:212-17 to 19).  Thus, when applying aggravating factors, the Court found that [...] was a cold-blooded killer, incapable of rehabilitation.  However, when the court did not want to apply a mitigating factor, [...] was doing great in detention and taking college courses.  The Court only used [...]’s evidence of rehabilitation to not apply a mitigating factor.  *Id.*  These two narratives are diametrically opposed to each other but the Court’s only considered facts with respect to place more emphasis on aggravating factors and less emphasis on mitigating factors.
[brief] [...] was aware that [...] did not use a trench box because it would interfere with two utility pipes.  Using trench boxes to eliminate the risk of a trench collapse would require cutting and restoring utility lines, which would slow down the work.  Those circumstances demonstrate the interrelationship between safety and progress.  The connection between the engineer's responsibilities over the progress of work and safety measures at the job site is relevant in determining whether it is fair to impose a duty of care addressed to work site safety conditions….  It is not only in the field of engineering that the courts have imposed a duty based upon the professional’s expertise and superior knowledge of a risk.
[brief] The State adopts abbreviations used in defendant’s brief and additionally uses the following abbreviations:  Db – Defendant’s brief Ra – The State’s appendix a stay of his sentence.  (3T25-17 to 26-12).  The trial court denied the stay of his sentence, but gave defendant an opportunity to argue his motion for bail pending appeal.  (3T27-5 to 7).  On October, 16, 2023, his judgment of conviction was entered.  (Da103-06).  On November 3, 2023, the trial court denied defendant’s motion for bail pending appeal.  (Ra7).  On October 23, 2023 defendant filed his amended notice of appeal.  (Da107-11).  On March 14, 2024 he filed his brief.  (Db1-18).  This brief follows.
[brief] Attorney’s fees were unnecessarily incurred due to [...]’s participation in discovery, preparation for depositions, and motion practice in the face of unspecified common knowledge negligence and trespass claims.  Plaintiffs attempt to criticize the amount of time counsel spent on motion practice and depositions and purport to calculate “total” hours billed for certain work.  However, Plaintiffs ignore that detailed time entries were submitted to justify every minute spent needlessly defending [...] from Plaintiffs’ frivolous claims.  For example, Plaintiffs complain about the “total” time spent related to depositions, but this does not account for the volume of documents produced by Plaintiffs and co-defendants in this case, the time spent reviewing records for potential deposition exhibits, documents to prepare witnesses, consulting and preparing with the client, drafting deposition outlines, summarizing testimony and client/carrier reporting – all deposition expenses that go beyond merely attending a deposition.  This work was specified in the time entries provided to the trial court.  Plaintiffs also take issue with [...] and its counsel preparing for a deposition the day after the deposition was postponed by Plaintiffs.  Contrary to Plaintiffs’ claim, at that time, the deposition was adjourned and not cancelled.  This office and our client had previously made plans to prepare for the September 28th deposition on September 27th.  Although the deposition was adjourned, given our client’s busy schedule, we took the opportunity to keep our meeting as planned to prepare for a rescheduled deposition.  Plaintiffs never rescheduled the deposition.  It is unfortunate that [...] has to endure responding to these misplaced criticisms from Plaintiffs regarding work that it was forced to conduct because of Plaintiffs’ bad faith pursuit of its claims against [...].
[brief] “Evidentiary decisions are reviewed under the abuse of discretion standard because, from its genesis, the decision to admit or exclude evidence is one firmly entrusted to the trial court's discretion. ”  Id. at 383-84.  "A court abuses its discretion when its 'decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'"  State v. Chavies, 247 N.J. 245, 257 (2021).  Moreover, in a bench trial, reviewing courts presume that “[a] judge sitting as the factfinder is certainly capable of sorting through admissible and inadmissible evidence without resultant detriment to the decision-making process. ”  *State v. Kern*, 325 N.J. Super. 435, 444 (App. Div. 1999).  Here, Appellant does not attempt in Point V to identify any specific documents that [...] erroneously relied upon in her decision.  Much less has Appellant shown that [...]’s reliance on any particular piece of evidence lacked any “rational explanation, inexplicably departed from established policies, or rested on an impermissible basis."*  Chavies*, 247 N.J. at 257.  Respondent attached multiple exhibits to its December 22, 2016 objection to the First Application for an interpretation from the Board (Ra43-Ra159).  Respondent “fully incorporate[d]” those exhibits in its objection to Appellant’s second application for an interpretation from the Board (Aa63).  Counsel for the Township acknowledged at the October 15, 2018 hearing that both Respondent and Appellant “presented . . . an encyclopedia thick of documents that you’ve all had an opportunity to review,” which [...] then acknowledged was “right here on [his] desk” (1T4-20 to 1T4-25).  On appeal, tellingly, Appellant does not identify which specific documents or exhibits presented to [...] that were allegedly not presented to the Board below in opposition to either or both of Appellant’s municipal applications, instead referring vaguely to “new documents not before the Board”  Much less has Appellant established how [...]’s decision to consider any particular document lacked any rational basis.  This lack of a showing by Appellant falls far short of meeting its burden of demonstrating that the trial court abused its discretion by considering the evidence presented.  Hanges, 202 N.J. at 383-84.  POINT VI
[brief] All of these findings must be based on “objective clinical evidence. ”  *N.J.S.A. 39:6A-8(a). *  "To vault AICRA's verbal threshold, an accident victim need only prove an injury as defined in the statute.  *Davidson v. Slater*, 189 N.J. 166, 181 (2007).  As such, there is no requirement that a plaintiff must demonstrate any continued or persistent subjective observation of pain.  In the case at bar, the report from the Appellant-Plaintiff’s doctor, [...], finds that based on objective evidence, including the MRI studies from of the Appellant-Plaintiff’s cervical, lumbar and thoracic regions, they showed multiple herniated and bulging discs.
[brief] Furthermore, “[t]he net opinion rule, a corollary of N.J.R.E. 703, ‘forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data. ’”  Burney, 255 N.J. at 23 (quoting Townsend v. Pierre, 221 N.J. 36, 53-54 (2015)).  “The rule requires that an expert give the why and wherefore’ that supports the opinion, rather than a mere conclusion.
[directive] Notice should also be posted in the locker area and on any bulletin boards.  The following is a sample of what such a notice should contain:  The agency may assign to its members and employees agency-owned vehicles, lockers, desks, cabinets, etc., for the mutual convenience of the agency and its personnel.  Such equipment is and remains the property of the agency.  Personnel are reminded that storage of personal items in this property is at the employee's own risk.  This property is subject to entry and inspection without notice.  7.8.6
[brief] The appellant testified that the photographs depict the condition of the sidewalk on the date of the fall, and based on that appearance, a direct, fair and reasonable inference would be that a poor attempt was made to remove the snow from the sidewalk in question.  Pa182-186.  The photographs depict a cake of snow that was not nearly as deep as the snow on either side of the sidewalk, so the only proper inference that could be deduced is that some attempt had been made to clear the walkway, leaving it in a dangerous condition.  The appellant testified that she would typically wake for work at approximately 5:00 a.m., and that her work day started at 7:45 a.m.  She further testified that as her ordinary routine, she would take a walk for exercise every morning before work began.  Pa 148.  On the morning of February 18, 2021, the appellant testified that her fall occurred at approximately 7:00 a.m. and that the weather had just begun with some flurries, but there was no new accumulation.  Pa148,156.  The appellant recalls falling on a patch of ice that remained from the defendant’s efforts to clear the snow two days prior.
[brief] \(^...\) N.J.S.A. 56:10-4.  A showing of a “community of interest” mandates the franchisee demonstrate: (1) licensor's control over the licensee, (2) the licensee's economic dependence on the licensor; (3) disparity in bargaining power, and (4) the presence of a franchise-specific investment by the licensee.  See N.J.S.A. 56:10-3; Neptune T.V. & Appliance Serv., Inc. v. Litton Microwave Cooking Prod. Div., Litton Sys., Inc., 190 N.J. Super. 153, 161 (App. Div. 1983).  [...] has alleged it was a franchisee of [...], but in the underlying summary judgment motion, it conceded that it was not economically dependent on [...], that it had no franchise-specific investments, and that [...] had no requirements for or control over [...] as to its advertising, marketing, sales, hiring practices or \(^4\) [...] is not disputing that [...] meets the place-of-business requirement.  \(^5\)  [...] is not disputing that [...] meets the $35,000 requirement.  showroom practices.  In other words, [...] conceded facts that showed it does not meet the requirements under the NJFPA, and it is, therefore, not entitled to the protections of the NJFPA.
[directive] The third category deals with situations where this Directive establishes a more flexible presumption that the State will seek pretrial detention unless a supervisory prosecutor designated by the County Prosecutor or Director of the Division of Criminal Justice finds that maximum conditions of release will adequately control the risks posed by defendant’s release, or where the supervisor otherwise determines that the interests of justice would not be served by pretrial detention.  See subsections 7.4.2.a, 7.4.2.b, and 7.4.3.  This third category applies to cases where new Rule 3:4A(b)(5) recognizes a prima facie basis for meeting the clear-and-convincing evidence standard required to order pretrial detention, that is, those cases where the pretrial services program’s recommendation is that the defendant not be released, or if released, only under the maximum level of monitoring.  That recommendation by the pretrial services program is based on the results of the objective pretrial risk-assessment process approved by the AOC, which, in turn, is based on empirical research.  The third category also applies to cases where the automated pretrial risk-assessment results in either a high Failure to Appear (FTA) or New Criminal Activity (NCA) score, or a moderate or high New Criminal Activity (NCA) score regardless of the Failure to Appear (FTA) score, see note 9 and subsections 7.4.2.a and 7.4.2.b, or if a New Violent Criminal Activity (NVCA) flag is raised, see subsection 7.4.5.a, or where certain specified offenses are charged regardless of the PSA scores, see subsection 7.4.5.b, or where the pretrial risk-assessment process results in a moderate risk of Failure to Appear or New Criminal Activity and the defendant has a violent juvenile history, see subsection 7.4.3.  This third category also includes cases where the current charge is serious the present offense is an indictable crime (regardless of degree) and was committed while defendant was on pretrial release for another offense or was subject to any form of post-conviction monitoring (including community supervision for life and parole supervision for life).
[directive] GAG.  Attachments: (1)  Notice of Appeal Rights and Time to File a Petition for Post-Conviction Relief, English-language version of Appeal Rights and Time to File a Petition for Post-Conviction Relief, (2)  Notice Spanish-language version  Notice of Appeal Rights and Time to File a Petition for Post-Conviction Relief  (3)  Colloquy, English-language version of Appeal  Rights and Time to File a Petition for Post-Conviction Relief  (4)  Notice  Colloquy, Spanish-language version  [...], Chief of Staff [...] Chief Justice [...] Cc: AOC Directors and Assistant Directors
[brief] (6T 128-4 to 9, 128-10 to 11)  [...] testified that [...] and his friend talked, smoked marijuana and PCP, and used cocaine, while she listened to music.  (6T 128-14 to 25)  She drank two or three cans of White Claw, but she was being cautious and “basically babysitting” [...] and his friend.  (6T 129-1 to 8)  [...] had told his friend that he and [...] were dating, and [...] “started trying to be silly” by putting his arm around her “and stuff like that. ”  (6T 129-12 to 14)  [...] did not say anything about this but did tell [...] that it was getting late and that she wanted to get to her friend’s house.  (6T 129-14 to 16)  [...] dropped his friend off and then continued to drive with [...].  (6T 129-20 to 21, 130-3 to 4)  [...] testified that [...] began asking her questions about where she had been for the last few days as she had not been answering her phone.
[directive] Audit an  Each audit must include audit plan as a part of the auditor's work papers.  The audit plan incorporates the minimum audit procedures which must be utilized by the auditor in establishing accountability for seized and/or forfeited property, and tests SOPS for compliance with forfeiture statutes, regulations, directives, and (Enclosure shall  Both the audit plan and work papers be maintained by the auditor for a 7). period of seven years.  (7)  VI.
[directive] I have previously informed you that the warnings given to you concerning your right to remain silent and your right to consult with an attorney do not apply to the taking of breath samples and do not give you a right to refuse to give, or to delay giving, samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood.  Your prior response, or lack of response, is unacceptable.  If you do not unconditionally agree to provide breath samples now, then you will be issued a separate summons charging you with refusing to submit to the taking of samples of your breath for the purpose of making chemical tests to determine the content of alcohol in your blood.
[brief] Prior to her retirement, Plaintiff filed this lawsuit under the New Jersey Law Against Discrimination (“NJLAD”) and the Conscientious Employee Protection Act (“CEPA”), alleging a hostile work environment and that she was subjected to retaliation for reporting what she believed to be improper conduct by members of the State Police in 2016.  Her allegations were eventually found to be unsubstantiated.  On August 7, 2020, the NJLAD claim was dismissed by the Court under the exclusive-remedy provision of CEPA.  Plaintiff has not appealed that determination.  The then-remaining CEPA claim was subject to a one-year statute of limitations.  This lawsuit was filed on November 21, 2017.  Therefore, any claims which pre-date November 21, 2016 are barred by the statute of limitations.  The Complaint asserted an assemblage of often disparate allegations against no less than eight current or former members of the New Jersey State Police.  However, much of the alleged improper conduct which Plaintiff alleged pre-dated November 21, 2016 and was barred by the statute of limitations.  Further, Plaintiff failed to establish any factual nexus between her complaint and any alleged retaliatory conduct.  While Plaintiff alleges that her transfer from Office of Professional Standards ("OPS") to the State Police Academy in November of 2016 was “retaliatory” and cost her promotional opportunity, the undisputed material facts reveal that Plaintiff’s transfer out of OPS actually accelerated her promotion.  For these reasons, [...] granted Defendants’ motion for Summary Judgment and dismissed Plaintiff’s remaining CEPA claims.  This Court is asked to affirm that decision.
[brief] Plaintiff relies on *Morgan v. Sundance, Inc.*, 142 S. Ct. 1708 (2022), *White v. Samsung Elecs. Am., Inc.*, 61 F. 4th 334 (3d Cir. 2023), and *Cole v. Jersey City Med. Ctr.*, 215 N.J. 265 (2013), none of which support waiver of arbitration based on the facts at hand.
[brief] However, [...]’s conclusion that the defendants converted these funds by fraudulently manipulating [...] and [...]’s accounting records was pure speculation.  21T124-17 to 130-8; 22T24-13 to 28-11; 26T15-19 to 24-24; 29T32-14 to 36-6.  Indeed, [...] admitted he did not conduct a proper forensic accounting investigation and that he ignored critical evidence against his clients.  21T124-3 to 139-24; 22T41-23 to 44-14; 29T34-4 to 37-9; Da02865, Da07299, Da07390 – Da07746.  In particular, [...] ignored the sworn statements made by [...] in his affidavit, where he certified to, in part that: (1) [...] approved of, and was involved in, all significant transactions reflected on [...] and [...]’s financial records; and (2) there was nothing that happened in [...] and [...] that [...] was not aware of and/or did not participate in.  Id.  LEGAL ARGUMENT POINT I THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ERRONEOUSLY DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (13T64-6 to 97-9)
[brief] *See Mhrez v. First National Collection Bureau*, HUD L-2314-22 (Sup. Ct. June 9, 2023).  This outlier decision has since been criticized by other New Jersey courts for improperly interpreting the FDCPA with “uncritical literalism. ”  *See [...] v.*  Appellant’s hyper-technical, literal reading of the FDCPA was rejected by these courts to avoid absurd results and maintain the consistency of the general statutory scheme.  This Court should similarly engage this process of statutory construction in its de novo review and continue to uphold the Superior Courts’ repeated dismissal of this matter.  In sum, Appellant’s theory that §§ 1692c(b), 1692d(3), and 1692f prohibit transmitting data to a letter vendor is an exercise in “uncritical literalism” that falls apart under fundamental tenets of statutory construction.
[brief] Finally, this case is substantially different from R.Y.  There, the evidence of third-party guilt came directly from the victim, who, at trial, testified that she did not know who inappropriately touched her.  Given the nature of the charges and the victim’s own contradictory statements to the caseworker and police, her statement naming a third-party was well-beyond mere conjecture.  In short, especially given the facts and circumstances of this case and the strong weight of the State’s evidence, [...] did not abuse his discretion when he ruled that defendant was prohibited from introducing any arguments of third-party guilt.
[brief] Pfannenstein v. Surrey, 475 N.J. Super. 3475(App. Div), certif. den. 254 N.J. 460 (2023).  It requires a plaintiff in a medical malpractice suit to “make a threshold showing that their claim is meritorious. ”  In re Petition of Hall, 147 N.J. 379 (1997).  This showing is to be made by an Affidavit of Merit (“AOM”) in which the plaintiff’s medical expert essentially claims that the care rendered to the plaintiff was below the standard of care.  In amendments enacted in 2004, the law now requires a “kind for kind” equivalent credentialing of the expert.  In relevant part it states that if a defendant physician specializes in a particular area of medicine and “the care or treatment at issue involves that specialty or subspecialty,” then the challenging expert must also specialize in the same area of medicine.  If the defendant is Board Certified in that specialty or subspecialty, then the Plaintiff’s expert must likewise be Board Certified in that area of medicine.  In this way, a defendant physician avoids the unfairness in which a plaintiffs expert criticizes his care under standards which should not apply to him or her.
[brief] (Pa787; Pa499-502).  The rehearing commenced on August 22, 2022 where the surveyor, the architect and the planner once again testified and were once again subject to cross-examination.  (Pa506; Pa512; Pa524).  Because the recorded rehearing of the remainder of the Homeowners’ case in chief took the entire evening, the rehearing was continued a second night (September 12, 2022) to allow the Objectors to call their witnesses and to allow those witnesses to be cross-examined with a verbatim record maintained.  (Pa584-585).  On September 12, 2022, the Objectors concluded their cross-examination, the Objectors testified, the Objectors were subject to cross-examination, the hearing was opened to the public, counsel for both parties were afforded summations and the ZBA deliberated and voted, unanimously, to grant the Homeowners variance relief.  (Pa631; Pa651; Pa733; Pa749; Pa0760).  On November 28, 2022, ZBA unanimously adopted a fourteen (14) page written Resolution of Approval detailing the evidence presented, the findings of fact and the legal underpinnings entitling the Homeowners to relief.
[brief] C.  The Court Below Erred by Finding that the Harm to Plaintiff Outweighed the Harm to [...].  Plaintiff argues that, in balancing the hardships, the court below relied upon [...]’s non-compliance with Mount Laurel.  (Pb44-Pb46).  Plaintiff’s argument ignores the trial court’s decision.  The court held that the balance of the relative hardships weighed in Plaintiff’s favor because, if [...] were to proceed with condemnation, it will potentially negatively affect Plaintiff’s ability to secure financing and proceed with its builder’s remedy claim.