ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The burden, then, is on plaintiffs to demonstrate that the impact on them of the [...]’s decisions is so significant and substantial as to render a statutory scheme which effectively bars them from appointment to the Council patently arbitrary and capricious.  *Humane Society* at 572.  Applying the “rational basis” standard of review (i.e., whether a state of facts exists that can reasonably justify the legislative scheme), the Supreme Court concluded:  The Legislature may prescribe such qualifications as reasonably relate to the demands of a specialized office.  [citation omitted].  Logic is not offended by the classes included in the challenged statute.  We have already stressed the discrete character of the [...], charged as it is with certain responsibilities and powers pertinent to ensuring the statutory objective of an abundant supply of game for recreational and commercial hunting and fishing.
[brief] (10T19:9-20:11).  Prior to trial, the plaintiffs served Notices to Produce pursuant to Rule 1:9-1 upon counsel for [...] for [...] to testify at trial.  (Pa311-314).  At no time prior to trial did counsel for [...] inform plaintiffs that [...] would not appear.  At trial, however, counsel for [...] informed us for the first time that “[w]e have been unable to locate [...]. ” (lPal17:14-118:18).  As a result, plaintiffs asked for a missing witness charge with an adverse inference under Model Jury Charge 1.18A before the trial began and at the charging conference, and a proposed charge was submitted to the trial judge.  (Pa317; 1Pa117:22-24; 10T16:18-20:13).  The trial judge not only refused to give the charge, but he also refused to permit plaintiff's counsel from even commenting on [...]'s absence in his closing argument, saying "[y]ou can't do it."  (10T19:9-20:11).  Here, the trial judge erred in refusing to permit plaintiff's counsel to comment on [...]'s absence at trial.  Counsel should have been permitted to comment on the failure of [...] to testify under Nisivoccia v. Ademhill Assoc., 286 N.J.Super. 419 (A.D. 1996).  In Nisivoccia the issue was whether counsel's comments in closing argument that the adversary failed to call a witness had required that attorney to first seek a missing witness charge and permission from the trial judge.  The Nisivoccia court ruled that there was no requirement to do either.  Ibid., at 429.  While there is a requirement that the party asking for an adverse inference charge notify the court and the adversary before the parties rest of his intention to seek such a charge, State v. Hill, 199 N.J. 545, 560-561 (2009), the purpose of the notification requirement is so that the adversary may yet call the witness to avoid the adverse inference.  Nisivoccia, at 430.  This Court in Nisivoccia noted the difference between criminal civil trials (see 3T30:21-25), and ruled that there was no advance notice requirement in civil cases, stating that "[a]ll attorneys in civil cases are charged with knowledge that an adversary may focus on the failure to call a witness."  *Ibid.*, at 430.  Moreover, the defense in this case became well aware that plaintiffs wanted and expected [...] to testify when they received the Notice to Produce.  This was reinforced when counsel requested the missing witness charge with an adverse inference both before trial and at the charging conference.  Therefore, counsel should have been permitted to comment in closing arguments on [...]'s failure to testify at trial.  **CONCLUSION**
[directive] Cf. R. 3:17(b)(iv) (explaining that station house custodial interrogations must be electronically recorded 4 unless “a statement is made during a custodial interrogation by a suspect who indicated, prior to making the statement, that he/she would participate in the interrogation only if it were not recorded; provided however, that the agreement to participate under that condition is itself recorded”).  BODY WORN CAMERA POLICY | January 2022 15 6.4
[brief] It was in that context that the 2018 [...] Resolution (Da894) determining that the off-site parking use by Lot 8 staff/attendees on the School Lot 5 is not now a permitted use, and is not a legal pre-existing, non-conforming use, was extremely relevant, and should have been allowed in evidence.  As detailed in Pell v. Tp. of Bass River, 196 N.J. Super. 304, 314 (Law Div. 1984), the [...] is particularly well equipped to decide such nonconforming use disputes, which involve issues as to when the use commenced, the interpretation of past and present zoning regulation, and the Board’s particular local knowledge.
[brief] [...] was contacted by [...] of [...] ([...]) in 2021 initially by Messenger and again when she came to [...] for the express purpose to speak with [...] regarding Lot 20 which was misidentified by Rev. Teabout as Lot 22.  *(Da274, Message from Rev. Teabout, Da55, [...] Answers to Interrogatories, par. 18; Da125, [...] Affidavit, par. 14; Da274, Message from Rev. Teabout on Messenger)*  During the communication with Rev. Teabout when she came to [...] to speak to [...], Rev. Teabout told [...] that the lot identified as Lot 20 which belonged to the church *might* be owned by [...].  *(Da55, [...] Answers to Interrogatories, par. 18; Pa125, [...] Affidavit, pars. 14-18).  This claim that Lot 20 might be owned by [...] was denied by [...].  (Da55, Answers to Interrogatories, par. 18; Da125, [...] Affidavit, par. 15; Da64, [...] Admissions, par. 18).
[brief] Da28  Stipulation of Dismissal with Prejudice as to [...] Da29  July 19, 2021, Letter Brief in Opposition to Plaintiffs’ Cross-Motion to Retain a New Expert¹ Da31  August 25, 2021  Letter from Defendant’s Attorney Withdrawing Motion to Bar [...] from Testifying Da34  Plaintiffs’ July 13, 2021, Letter Brief in Opposition to Defendant’s Motion to Bar [...]² Da36  ¹ Referred to during oral argument on August 27, 2021 at 1T9-8 to 10-17.  ²  Referred to during oral argument on August 27, 2021 at 1T5-5 to 13 and November 12, 2021 at 2T31-7 to 19.  ###  Table of Authorities | Case | Page(s) | |----------------------------------------------------------------------|---------| | **State Cases** | | | Achacoso-Sanchez v. Immigration and Naturalization Service, | 16 | | 779 F.2d 1260 (7th Cir. 1985) | | | Bender v. Adelson, 187 N.J. 411 (2006) | 22, 29 | | Capital Health System, Inc. v. Horizon Healthcare Services, Inc., | 16 | | 230 N.J. 73 (2017) | | | Castello v. Wohler, 446 N.J. Super. 1 (App. Div.), certif. denied, | 27, 28-29| | 228 N.J. 39 (2016) | | | Estate of Hanges v. Metropolitan Property & Cas. Ins. Co., | 17, 19 | | 202 N.J. 369 (2010) | | | Flagg v. Essex County Prosecutor, 171 N.J. 561 (2002) | 16 | | Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250 | 30 | | (App. Div. 1987) | | | Lombardi v. Masso, 207 N.J. 517 (2011) | 30 | | Lawson v. Dewar, 468 N.J. Super. 128 (App. Div. 2021) | 30 | | Leitner v. Toms River Regional Schools, | 22-23 | | 392 N.J. Super. 80 (App. Div.
[brief] **THE COURT PROPERLY DISMISSED DR. ONDIK’S COMPLAINT.** (Ra1-3, Ra159-78, Pa52-53)  [...] concedes in his appeal that he did oppose the dismissal of his Complaint based on mootness.  (Ab31).  Thus, this Court should not consider his newly raised arguments on appeal.  *Neider*, 62 N.J. at 234 (generally decline to consider issues raised for the first time on appeal).  Regardless, [...]’s new arguments fail.  As set forth above, mootness is a threshold question of justiciability.  This is true even where a party seeks declaratory judgment.  “Where the issue is moot, declaratory judgment will not lie because of the absence of an actual controversy. ”  Pressler & Verniero, Current N.J. Court Rules, comment 1.2 on R. 4:42–3 (2024).  The Court does not issue advisory opinions.  G.H. v. Twp. of Galloway, 199 N.J. 135, 136 (2009).  Thus, the Court will not entertain a request for declaratory judgment that is simply a disguised attempt to adjudicate in advance the validity of a possible defense in an expected future lawsuit.  Donadio v. Cunningham, 58 N.J. 309, 325 (1971).  Accordingly, when a party’s rights “lose concreteness” due to developments subsequent to the filing of an action, there is no reason to continue the litigation.  State v. Davila, 443 N.J. Super. 577, 584 (App. Div. 2016).  [...]’s requests for judgment declaring that his employment with [...] did not violate the Restrictive Covenant became moot when [...] withdrew its offer of employment.  This remained unchanged when [...] tried to condition the offer on the Chancery Court’s rulings.  Thus, the Chancery Court properly dismissed the Complaint without prejudice, leaving [...] free to file an amended Complaint if and when he could bring a live controversy to the Court.  Instead, (as predicted by the Chancery Court) [...] secured employment outside the Restrictive Covenant.  Thus, even if his Complaint had not been rendered moot previously, it certainly is now.
[brief] In post-trial proceedings, the Trial Court correctly enforced the entire judgment against Appellant consistent with the Joint Tortfeasors Contribution Law (hereinafter “JTCL”).  The statute provides that a plaintiff may collect all damages from any direct defendant found to be at least sixty percent (60%) negligent.  Moreover, the New Jersey Supreme Court addressed this very issue – how to apply the JTCL when so-called “Burt defendant” designation was sought or applied – in *Mejia v. Quest Diagnostics, Inc.*  The Court clearly and unequivocally declared that a plaintiff may recover the full measure of damages as laid out in the JTCL in that circumstance.
[directive] Consistent with training, the following general rules apply in determining the appropriate level of force:  (a)  Cooperative Person.  When dealing with a cooperative person, officers may rely on police presence and/or verbal control techniques, but should not use force.  (b)  Passive Resistor.  When dealing with a passive resistor, officers may rely on police presence, verbal control techniques, holding techniques, lifting/carrying, wrist locks and other manual pain compliance techniques.  Greater force, such as strikes, punches, CEDs, or less lethal devices shall not be used.  (c)  Active Resistor.  When dealing with an active resistor, in addition to the options available for passive resistors, officers may use physical strikes with hands or feet, OC spray, batons or asps applied with non-impact pressure, and taking the person to the ground.  Intentional strikes to the head or face, which are only allowed in an act of self-defense, are not permitted when dealing with an active resistor.  Police canines shall not be utilized against an active resistor.
[brief] Defendant stole the keys from his 81-year-old neighbor's porch and, when they did not work to open the door, rang the doorbell.  When she opened the door to let him in, he pushed his way inside, entered the vestibule, and beat her so brutally over the course of four minutes that he knocked out her dentures.  He then dragged her -- bruised and bloodied -- into her apartment, where he continued his violent attack and ransacked her apartment for the next thirty minutes.  He beat her, broke her nose, strangled her, and stabbed her multiple times, including in the neck with a serrated knife, severing her carotid artery.  For all of his brutality, which he perpetrated against his 81-year-old neighbor and which was captured on surveillance video, he received a sentence of life plus thirty-one and a half years.  This sentence was entirely reasonable and should be affirmed.
[brief] ....................... 37, 38 Rockaway Shoprite Associates, Inc. v. City of Linden, 424 N.J. Super. 337 (App. Div. 2011).  ....................... 32, 35 Rocky Hill Citizens for Responsible Growth v. Planning Bd. of Borough of Rocky Hill, 406 N.J. Super. 384 (App. Div. 2009).
[brief] [ISSUE RAISED (Pa005-Pa007; Pa009, Pa011)]  [...]’s December 28, 2018 U.S Recall sets forth the Health Hazards from the defective Ozurdex, including a “corneal reaction,” and further states that “transient visual disturbance or intraocular inflammatory reaction in sensitive patients are potential safety risks. ”  [(Da256-Da0257)  Emphasis added.]  The fact that the Ozurdex applicator was not designed to dispense a silicone particulate – into a patient’s eye - clearly created a health and safety concern that required notifying healthcare providers in the U.S., just as [...] had done in forty (40) other countries.  Thus, [...] is in clear violation of N.J.S.A. Sec. 2A:58C-4.  VII.
[brief] The Court denied [...]’s motion and reiterated that as [...] only foreclosed on the upland property; it did not own the Riparian Grant.  [...] appealed.  The Appellate Division remanded the case to the trial court stating that on the record before it, it could not determine whether the Riparian rights were intended to be separate and distinct and purposely not intended to be included in the deed transfer or whether the omission of the riparian rights was a scrivener’s oversight.
[brief] THE COMMISSIONER'S DECISION SHOULD BE AFFIRMED BECAUSE IT ACCORDED WITH THE LAW AND WAS SUFFICIENTLY SUPPORTED BY THE RECORD.  [...] does not dispute that on the day after he lost his bid for reelection to the Board, he directed the Board’s attorney to investigate whether the conduct of a rival Board member who had campaigned against him, and with whom he shared a long history of mutual dislike, violated the Act.
[brief] Code of Judicial Conduct Canon 3C(1)(b).  The PCR Court judge relied accurately on applicable law in reaching her decision.  She engaged in “conscious exercise of good will and mature judgment to decide,” as the courts assume judges do.  Magill v. Casel, 238 N.J. Super. 57, 63-64 (App. Div. 1990).  The PCR Court judge appropriately noted Canon 3.17(B), which dictates, in relevant part:  “Judges shall disqualify themselves in proceedings in which their impartiality or the appearance of their impartiality might reasonably be questioned… [including where] a party is a governmental entity that previously employed the judge for a period of two years following judicial appointment if the judge was employed as a state government attorney, county prosecutor, or assistant county prosecutor, provided, however, that prior employment as a state government with broad supervisory authority shall not disqualify judges who had no actual involvement in the matter while in government service…”  Da378-79.  [...], at the time of hearing the motion, was six years removed from the prosecutors office.  Id.  Her decision was not an abuse of discretion as it did not “‘rest[s] on an impermissible basis’ nor was ‘based upon a consideration of irrelevant or inappropriate factors. ’”  State v. S.N., 231 N.J. 497, 515 (2018) (quoting State v. Baynes, 148 N.J. 434, 444 (1997) (internal citations omitted)).
[brief] ## CASES | Case | Page | |----------------------------------------------------------------------|------| | Am. Oversight v. United States EPA | 9 | | 386 F. Supp. 3d 1 (D.D.C. 2019) | | | Bent v. Twp. of Stafford Police Dep’t | 5, 6, 10 | | 381 N.J. Super. 30 (App. Div. 2005) | | | Buono v. City of Newark | 12 | | 249 F.R.D. 469 (D.N.J. 2008) | | | Burke v. Brandes | passim | | 429 N.J. Super. 167 (App. Div. 2012) | | | Commc’ns Workers of Am. v. Rousseau | 9 | | 417 N.J. Super. 341 (App. Div. 2010) | | | Educ. Law Ctr. v. N.J. Dep’t of Educ. | 4, 13 | | 198 N.J. 274 (2009) | | | Fisher v. Div. of Law | 12 | | 400 N.J. Super. 61 (App. Div. 2008) | | | Gannett N.J. Partners, LP v. Cnty. of Middlesex | 5 | | 379 N.J. Super. 205 (App. Div. 2005) | | | Huddell v. Levin | 9 | | 537 F.2d 726 (3d Cir. 1976) | | | Lagerkvist v. Office of the Gov’r | 12 | | 443 N.J. Super. 230 (App. Div. 2015)  | | | MAG Entm’t, LLC v. Div. of Alcoholic Beverage Control | 5, 6, 8, 10 | | 375 N.J. Super. 534 (App. Div. 2005) | | Mason v. City of Hoboken 196 N.J. 51 (2008)  ..............................................................................................................  4 Packard v. Provident Nat’l Bank 994 F.2d 1039 (3d Cir. 1993) .................................................................................................  9 Paff v. Galloway Township 229 N.J. 340 (2017)  .................................................................................................................. 1, 7, 8 Sack v. CIA 53 F. Supp. 3d 154 (D.D.C. 2014) .........................................................................................  10  Spectraserv, Inc. v. Middlesex Cnty. Utils. Auth. 416 N.J. Super. 565 (App. Div. 2010)  ..................................................................................... 5, 6, 7, 10  STATUTES  N.J.S.A. 47:1A-1 .......................................................................................................................  13 N.J.S.A. 47:1A-1.1 .....................................................................................................................  12 N.J.S.A. 47:1A-1.1 to -13 ..........................................................................................................
[brief] \(^5\) ¶ 8.  Site Plan Application and Review Process.  --- \(^5\)  The Municipal Land Use Act (‘MLUL’), N.J.S.A. 40:55D-1 et seq., governs land use applications and requires such land use applications to be presented to and considered by a municipal land use board (Planning Board or Board of Adjustment).  g.  Following the conclusion of the public hearing, the Board shall promptly deliberate on the SPA and vote.  Following the vote of the Board, the Board shall memorialize its decision regarding the SPA in a written resolution, which shall be adopted by the Board within the earlier of 30 days or the second meeting following the approval meeting.  i.  The Parties acknowledge that the Developer will incur substantial costs if the deadlines set forth herein are not achieved by the dates provided.  As a result of the foregoing, if any deadline or timeframe set forth herein that is the responsibility of the Township or the Board is not achieved in accordance with the timeline set forth above, inclusive of the 15-day extension period with respect to the adoption of the Ordinance, there shall be a penalty in the amount of five hundred ($500) per day (“Per Diem Penalty”), excepting acts of god or inclement weather cancellations or the like provided that the Township or the Board takes the required action no later than the next regular or special scheduled meeting.
[brief] 1.  I am an attorney-at-law of the State of New Jersey and Of Counsel to the firm of [...], attorneys for Defendant, [...] ("Defendant").  As such, I have knowledge of the facts set forth herein.  2.  I am making this Certification in response to the motion filed by [...], Esq., the Administrator of the Non-Resident New Jersey Estate of [...], Deceased (the "Administrator" or "Mr. Reiser"), for an Order granting a final award of fees and disbursements to the Administrator, designating Defendant (or his agent) as the party having the authority to file a non-resident United States Tax Return, Form 706-NA, if he or his agent determines the filing of the return is required, and discharging the Administrator of any further duties as Administrator in this matter.
[brief] A Monmouth County Grand Jury returned [...] charging defendant, [...], with first-degree murder, N.J.S.A. 2C:11-3a(1) and (2) (Count 1), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a(2) (Count 2).  (Da18-19).  Pursuant to a negotiated agreement with the State, defendant pleaded guilty to Count 1 as amended to aggravated manslaughter, N.J.S.A. 2C:11-4a(1).  In exchange, the State agreed to dismiss Count 2 and to recommend a sentence of 30 years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to be served consecutively to the 10-year NERA sentence defendant was already serving on another matter.
[brief] Plaintiff filed a complaint against Defendant on February 13, 2024.  [Pa29-37].  On April 1, 2024, Defendant filed a motion for dismissal, citing Rule 4:6-2(a) – allowing for dismissal for lack of jurisdiction -- even though it was more likely a motion brought under Rule 4:6-2(e) -- that being a motion for judgment on the pleadings.  [Pa39-67].  Defendant argued that Plaintiff’s Complaint should be dismissed based on the existence of the so-called arbitration provision in their contract for the installation of an in-ground swimming pool.  [Pa39-67].  On April 18, 2024, Plaintiff filed opposition to the Rule 4:6-2 motion and simultaneously cross-moved under Rule 4:6-2(e) for judgment on the pleadings as to the Third Count of the Complaint.  [Pa68-72].  By way of the Third Count, Plaintiff sought a Declaratory Judgment under New Jersey’s Declaratory Judgment Act (“DJA”) that the so-called arbitration provision was not enforceable under New Jersey law.  [Pa29-37].  The Law Division conducted oral argument on May 14, 2024.  [1T, 5/14/2024].  On May 30, 2024, the Law Division entered the Orders granting the motion and denying the cross motion.  [Pa1-16].  Appellant filed a Notice of Appeal on June 5, 2024.  [Pa17-28].  **STATEMENT OF FACTS**
[directive] Sequential and Simultaneous Photo Arrays & Mug Book Identifications  When presenting photos, the administrator or investigator should follow the below procedures:  1.  Electronically record, preferably in video-audio format, the identification procedure.  If an electronic recording is not feasible, the administrator must contemporaneously record the identification procedure in writing, and document why an electronic recording was not feasible.  If a contemporaneous written recording is not feasible, the administrator must prepare a detailed written summary of the identification procedure as soon as practicable and without - 4 - undue delay, and explain in writing why an electronic recording and a written contemporaneous account were not feasible.  2.  Provide viewing instructions to the witness as outlined in subsection I.A.2, above.  a.  For sequential photo arrays, provide the following additional viewing instructions to the witness:  time3; i.  Individual photographs will be viewed one at a ii.  The photos are in random order; iii.  Take as much time as needed in making a decision about each photo before moving to the next one; and iv.  All photos will be shown, even if an identification is made prior to viewing all photos; or the procedure will be stopped at the point of an identification (consistent with jurisdictional/departmental procedures).  3.  Confirm that the witness understands the nature of the procedure.  4.  Avoid saying anything to the witness that may influence the witness’s selection.  5.  Present each photo to the witness separately, in a previously determined order, removing those previously shown.  6.  If an identification is made, avoid reporting to the witness any information regarding the individual the witness has selected prior to obtaining the witness’s statement of certainty.  7.  Record any identification results and witness’s statement of certainty as outlined in subsection III, “Recording Identification Results. ”  8.  Document in writing the procedure, including: a.  Identification information and sources of all photos used.  b. Names of all persons present at the photo lineup.  c. Date and time of the identification procedure.  3  See Section I.A.3. - 5 - 9.  Instruct the witness not to discuss the identification procedure or its results with other witnesses involved in the case and discourage contact with the media.  B.  Simultaneous and Sequential Live Lineup
[brief] (7T 90:9-91:14).  Upon entering this ruling on the jury charge, Defendants placed on the record that the entirety of the aforementioned rulings amounted to cumulative error by the trial court, which denied Defendants a fair trial.  (7T 91:15-93:1).  These errors included the court’s failure to take notice or allow evidence regarding the State of Emergency, which was relevant to the significance of the storm event; the court permitting questioning regarding the Defendants’ services in April 2018, which were irrelevant to the date of loss; and excluding the photograph which plaintiff admitted showed the conditions of the accident location on the date of loss.