ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] These instructions are to be included in the court’s comprehensive jury charge at the close of evidence. ”  Id. at 296.  The Supreme Court promised: “Juries will continue to hear about all relevant system and estimator variables at trial,” id. at 296, “even when there is no evidence of suggestiveness in the case. ”  Id. at 294.  A Henderson instruction on relevant factors that could have adversely impacted the reliability of the out-of-court identifications was necessary here, for several reasons.  Jurors were never given an appropriate, tailored instruction on essential principles, including (1) that witness confidence may not indicate reliability; (2) that the State has the burden of proving an accurate record of identification procedures; (3) that a prior unsuccessful identification procedure may indicate unreliability; and that it can indicate an unreliable identification procedure if (4) administrators fail to inform witnesses that they should not feel compelled to make an identification, (5) the administrator is not “blind,” and is aware of the suspect, (6) the administrator gives clues before an identification is given, or offers positive feedback afterward; and (7) the witness has discussed the identification with others.
[brief] In *Zeller*, the defendant gave plaintiff a check for an amount which it had calculated was owed to the plaintiff, along with an explanation letter of same.  However, neither the check nor the transmittal letter indicated that plaintiff's acceptance would constitute "full satisfaction".  And on top of that, the plaintiff endorsed the check with the words: "under protest with full reservation of rights," indicating it was not her intention to relinquish her claim to the balance that she alleged was still due.  This Court ultimately held that in the absence of evidence of both parties’ intention that the payment was to act as full payment, “the defense of accord and satisfaction is unavailing to defeat a creditor's claim for payment in full”.  *Id.* at 466.  Here in this case, there was no such evidence offered by either party, and I clearly stated that I had cashed the check “under protest”.
[brief] See Pascarella v. Bruck, 190 N.J. Super. 118, 124 (App. Div.) cert. denied, 94 N.J. 600 (1983).  By filing the Order to Show Cause, [...] sought to enforce the settlement contract between the parties, but in order to do so, the action should not have been filed in the Probate Court.  Further, while the Probate Court may assert ancillary jurisdiction over property within the State, the property must still be possessed by the decedent at the time of death, a condition that is not present here.
[brief] In this case, if judgment is not vacated and [...] is not permitted to redeem the taxes, [...] will lose his home of many years and substantial equity he spent years building to a tax lien holder.  (Da24)  Under the circumstances, it would not be a just result for [...] to lose over $300,000.00 of [...]’s equity for only approximately $50,000.00 in unpaid tax where the lienholder was only owed approximately $120,000.00 in tax liens with lienholder fees.  (Da23-Da24)  These are drastic consequences which resulted from an unconstitutional foreclosure judgment.  [...] cannot afford to lose his home and substantial equity to an unconstitutional foreclosure.  [...] is ready willing and able to redeem the taxes upon entry of order permitting same.  (Da24)  In said circumstance, the lien holder is made whole and Plaintiff will still receive all amounts due plus hefty interest on its investment and any legitimate costs incurred.  LEGAL ARGUMENTS
[brief] In doing so, the trial court abused its discretion in two ways.  First, the trial court wholly ignored Defendants’ argument that Plaintiff’s strategic dismissal of his lawsuit to avoid liability for attorneys’ fees—a move that was contrary to UPEPA’s statutory purposes and could provide other litigants with a blueprint for how to undermine its protections in the future—was an “exceptional circumstance” justifying relief from the judgment under R.4:50-1(f).  The trial court’s failure to consider this argument was an abuse of discretion.  Second, the trial court conflated the prevailing party standard for recovering attorneys’ fees under UPEPA with the significantly higher frivolous litigation showing required to obtain attorneys’ fees under New Jersey’s Frivolous Litigation Statute—and denied the motion to reopen on the basis that Defendants had not adduced sufficient evidence of the latter.  But the only requirement for a moving party to obtain attorneys’ fees under UPEPA is that the moving party “prevails on the order to show cause,” N.J. Stat. Ann. § 2A:53A-58, which Defendants did here.  The trial court’s misapprehension of the applicable legal standard, which formed the basis for its denial of the motion, was an abuse of discretion requiring reversal.
[brief] (Da34)  On September 9, 2022.  Defendant filed a motion for a new trial in the Criminal Division based on the newly discovered evidence of an affidavit from [...] swearing that he shot [...] and Defendant had no knowledge of his plan to do so.  (Da38-44)  On September 19, 2022, Defendant filed a motion in the Appellate Division, requesting a limited remand of his --- \(^2\)  The case was adjourned midtrial from March 23 to June 22 due to COVID-19.  (33T75-13 to 16; 34T)  \(^3\)  The State dismissed the certain persons charge (Count 5).  (41T18-23 to 19-3) case to the Criminal Division for a hearing on his motion for a new trial.  (Da45)  On October 13, 2022, the Appellate Division entered an order denying this motion.  (Da45)  The trial court thereafter dismissed Defendant’s motion for a new trial without prejudice on October 18, 2022.  (Da46)  Defendant filed a motion for leave to appeal the Appellate Division’s order denying a limited remand with the Supreme Court, which was denied on January 10, 2023.  (Da47-48)  **STATEMENT OF FACTS**
[brief] (Pa97-98).  On 4/29/22, Respondents and Petitioner-Appellant filed Summary Motions to the administrative law judge [“ALJ”] simultaneously seeking relief.  (Pa124-130).  Respondents sought to convince the ALJ to agree with the Board’s decision to accept [...]’s filing of a disability claim.  (Id.).  [...]’s motion sought a decision rejecting the Board’s decision to not accept [...]’s application for disability.  (Ibid.; Pa137-145).  On or about 5/25/22 reply briefs were filed with the ALJ by both parties.  (Pa160-161).  Oral argument did not take place.  (Id.).  On 8/2/22, the ALJ issued a well-crafted and thorough written Decision wherein the ALJ rejected the Board’s refusal to accept the application for disability from [...].
[brief] (Ra345 13:16 through Ra355 56:3.)  Further, [...] opined that this “mounding” was done to provide better views, but there was no support in the record establishing that the extra feet provided by the regrading of the entire site would provide the buildings with better views.  The Property abuts a County Road and is surrounded by other homes; it is not near a beach nor a river, and consequently, the views would not be a selling point to a potential buyer.  Notably, [...], did not have the requisite qualifications to render an opinion as to the regrading of the site, nor was any relevant testimony presented that contradicted the opinions of [...] and [...].  [...] had very limited credentials as a civil engineer and planner, as it was clear that [...]’s background was primarily in traffic engineering and traffic planning.
[brief] While the Arbitrator’s Award could have been clearer on the justification for a “credit,” it bears repeating that this is the only project in which [...]’s EGP profit-share claim was reduced to $0 (down --- \(^1\) [...] has consistently refuted that the parties ever came to any such “agreement,” which would be inherently antithetical in an action “involving the transfer of a business. ”  Opp. at 26.  \(^2\) Pa502 at 16:20-17:1 (“we were a subcontract[or] to [[...]]” at Hackensack); Pa536 at 152:2-20 (at Hackensack, because “the change orders are still not being acted upon…estimated gross profit is now, you know, put into peril”).
[brief] The effects of the environmental disaster in [...] are not substantial credible evidence that Plaintiff’s Property poses a danger to the health, safety, morals or welfare of Borough residents.  The Mayor’s concerns are not evidence and cannot be considered as part of the required substantial credible evidence needed to support the Borough’s conclusions.  Further, the Borough’s own LSRP/consultant who was present at the hearing did not offer any testimony to support of the Mayor’s concerns or to refute any of [...]’s statements.  In designating the Property as a redevelopment area, Council disregarded the actual facts and instead based its decision on feelings and subjective concerns which the trial court properly rejected as not credible evidence.  2.
[brief] Importantly, the Court’s findings of fact post-trial as to [...]’s peaceable possession was, if anything, more emphatic as to [...]’s unchallenged ownership of the Property:  In addition to the paper trail of deeds, all the indicia of ownership supports the contention that [...] owned [...].  [...] (and [...]) assumed the mortgage payments.  [...] and/or his wife at any given time paid the real estate takes.  [...] held the keys while no member of the [...] family had keys.  [...] hired and paid for repairs and maintenance on the property.  This was corroborated by the testimony of [...] and [...].  Despite the tax and municipal records listing [...] as the account holder, it was [...] who paid the utility bills and insurance.  In sum, no one from the [...] side of the family had any involvement in the ownership, repair, maintenance or financial responsibilities associated with the subject property after the May 12, 1997 transfer to [...] Wu.  The proposition that [...] did all these things for all those years merely as a property manager and at the behest of his brother Sam is not worthy of belief...  (Da068-Da069) (emphasis added).  …The rent was paid to [...] as landlord by the tenant, out of which [...] paid for the expenses of the property without tendering any of the rent receipts to [...] or his family due to the simple fact that they did not own it.  (Da069-Da70) (emphasis added).  As such, it is respectfully submitted that Court’s reference to its prior opinion on the statute of limitations without restating the applicable burden of proof should not alter the Court’s unmistakable conclusion: [...] was not aware of any alleged challenge to his ownership until 2019 at the earliest because there was no so challenge.
[brief] 1  The decision of the [...] to adopt a Second Amendment to the Beachway Avenue Waterfront Redevelopment Plan was legally justified ......................... 16  POINT  2  The [...] decision (holding that the proposed Amendment No. 2 to the Beachway Avenue Waterfront Redevelopment Plan was consistent with the Borough’s Master Plan) complied with all Procedural and Substantive Requirements of New Jersey Law ...........................................  17
[directive] A CED means any device approved by the Attorney General that is capable of firing darts/electrodes that transmit an electrical charge or current intended to temporarily disable a person.  Constructive Authority.  Constructive authority is not considered a use of force because it does not involve physical contact with the subject.  Rather, constructive authority involves the use of the officer’s authority to exert control over a subject.  Examples include verbal commands, gestures, warnings, and unholstering a weapon.  Pointing a firearm at a subject is an example of constructive authority to be used only in appropriate circumstances outlined in Section 3.4 of this Policy.
[brief] New Jersey Rule of Evidence 703, which governs the basis of expert opinion, states:  The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing.  If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.  Based on this Rule of Evidence, “[a]n opinion lacking in foundation is worthless. ”  Jiminez, 286 N.J. Super. at 540.  “An expert opinion that is not factually supported is a net opinion or mere hypothesis to which no weight need be accorded. ”  Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adj., 361 N.J. Super. 22, 43 (App. Div. 2003).
[brief] Affording Plaintiffs all legitimate favorable inferences, they produced no evidence beyond pure speculation to establish the alleged deviation increased the risk of any pre-existing condition sufficient to create a jury question as to whether that increased risk was a substantial factor in causing the ultimate outcome.  Under the facts of this case, an increased risk could only exist if Plaintiffs could present some evidence to a reasonable degree of medical probability that [...]’s failure to call for a C-Section or contact [...] at 9:48pm would more likely than not have resulted in an earlier delivery during the narrow window of time where [...] claims there was time to achieve a better result.  Absent such evidence, there can be no factual basis for a jury to find the alleged negligence was a substantial factor in causing the ultimate outcome.  For Plaintiffs to argue they had no requirement to prove a physician capable of performing the C-Section would have been available to do so ignores the initial proximate cause element our Courts have held in *Evers, Scafidi and Reynolds et al.* is the Plaintiffs’ burden of proof.  To hold otherwise would eliminate entirely Plaintiffs’ burden from having to provide some evidence of proximate cause and allow the jury to speculate about facts that did not exist.  The undisputed facts simply do not support proximate cause.
[brief] No intermediate decision TABLE TO DEFENDANT-APPELLANT'S APPENDIX | DESCRIPTION OF DOCUMENT | Page Number | |----------------------------------------------------------------------------------------|-------------| | Indictment number [...] | Da 1-5 | | Verdict Sheet | Da 6-7 | | Order Denying Motion for a New Trial dated September 13, 2023 | Da 8 | | Judgment of Conviction dated September 11, 2023 | Da 9-12 | | Notice of Appeal dated October 4, 2023 | Da 13-16 | | Surveillance Video premarked S-23 (see 1T80-22 to 1T80-23), moved into evidence at 1T88-14 to 1T88-20 | Da 17 | | Still Photograph from Surveillance Video premarked S-24A, (see 1T89-10), moved into evidence at 1T89-22 to 1T90-2 | Da 17 | | Still Photograph from Surveillance Video (S-24A), premarked (see 1T89-10), moved into evidence at 1T89-11 to 1T90-2 | Da 17 | | Still Photograph from Surveillance Video (S-24B), premarked (see 1T89-10), moved into evidence at 1T91-1 to 1T91-20 | Da 17 | | CASES | PAGE(S) | |-------------------------------------------|---------------| | Alves v. Rosenberg, 400 N.J. Super. 553 | Db12-Db13 | | Curley v. United States, 160 F.2d 229 | Db17 | | State v. Alston, 312 N.J. Super. 102 | Db11 | | State v. Bankston, 63 N.J. 263 | Db8-Db9 | | State v. Branch, 182 N.J. 338 | Db8-Db9 | | State v. Brown, 170 N.J. 138 | Db12 | | State v. Brown, 463 N.J. Super. 33, 51 | Db13, Db16 | | State v. Coder, 198 N.J. 451 | Db10 | | State v. Frost, 158 N.J. 76 | Db18 | | State v. Irving, 114 N.J. 427 | Db8-Db9 | | State v. Jones, 242 N.J. 156 | Db16 | | State v. Lazo, 209 N.J. 9 | Db9 | | State v. Lodzinski, 249 N.J. 116 | Db17 | | State v. Loftin, 287 N.J. Super. 76 | Db13-Db14 | | State v. Marrero, 148 N.J. 469 | Db12 | | State v. Mays, 321 N.J. Super. 619 | Db16 | State v. Medina, 242 N.J. 397 (2020)
[brief] Defendants-Appellants, [...] (“[...]” or the “College”) and [...] (“[...]”) (“[...]” and “[...]” together, “Appellants”) appeal the lower court’s November 8, 2024 Order denying Appellants’ motion to compel arbitration (the “Motion”).  The trial court decided to conduct a plenary hearing to determine whether the parties entered into an agreement containing a binding arbitration clause.  On November 8, 2024 the hearing was held and three witnesses testified, including Plaintiff-Respondent [...] (“[...]” or “Respondent”), [...] and an attorney with [...], counsel for Appellants.  Shockingly, despite the trial Court ordering the hearing specifically for the purpose of the Court making findings of fact concerning whether there was an enforceable arbitration clause, the trial Court denied the motion to compel “because there were factual disputes. ”  The court also erred when it failed to place the burden on [...] to demonstrate the unenforceability of the arbitration clause after Appellants presented a signed agreement containing an enforceable arbitration provision at the hearing.  In short, Appellants offered clear and convincing evidence at the hearing that the parties intended and did enter into a binding agreement to arbitrate their claims, and the trial Court should have enforced that agreement.
[brief] *See Alexander v. Primerica Holdings, Inc.*, 822 F. Supp. 1099, 1115 (D.N.J. 1993); *see also Commonwealth Ins. Co. v. Graphix Hot Line, Inc.*, 808 F. Supp. 1200 (E.D. Pa. 1992) (holding that “a finding of waiver is justified...when a former client was concededly aware of the former attorney’s representation of an adversary but failed to raise an objection promptly when he had the opportunity”).  “In determining whether the moving party has waived its right to object to the opposing party's counsel, consideration must be given to (1) the length of the delay in bringing the motion to disqualify, (2) when the movant learned of the conflict, (3) whether the movant was represented by counsel during the delay, (4) why the delay occurred and (5) whether disqualification would result in prejudice to the non-moving party. ”  Alexander v. Primerica Holdings, Inc., 822 F. Supp. at 1115; see also Commonwealth Ins. v. Graphix Hot Line, Inc., 808 F. Supp. at 1208.  Here, pursuant to the doctrines of laches and waiver, the trial court should have denied Respondents’ disqualification application at this late stage since Respondents inexcusably sat on their rights and took no action although they now claim prejudice will result.
[brief] In Sims v. [...], 244 N.J. Super. 32, 36, (1990), the Sims, plaintiffs “were sitting in a car parked at the curb on the southwest side of Nairn Place near the intersection of Clinton Avenue in Newark when a tree limb fell onto the roof of the car owned by [...], damaging the car and causing personal injuries to both plaintiffs. ”  Sims v. [...], 244 N.J. Super. 32, 36 (1990).  This case centered on whether the defendant City was palpably unreasonable in not inspecting every tree in its city.  However, the case sets forth the steps a plaintiff must undergo to prove liability should be imposed upon a municipality.  The Court relies upon the New Jersey Tort Claims Act Chapter 59:4-2 and whether the municipality had created the dangerous condition; or had actual or constructive notice of it.
[brief] [...] v. Clark, 596 U.S. 36 (2022) provides the most in-depth analysis of the favorable-termination element of a claim for malicious prosecution.  [...] was concerned not with the inane distinction between an oral verdict and a written judgment, but rather the real and substantive issue of whether an affirmative indication of innocence was required to establish malicious prosecution.  In its historical probe of the common law tort, the Supreme Court determined and saw finality as the touchstone of the favorable-termination component of a malicious prosecution claim.
[brief] State v. Baylor, 423 N.J. Super. 578, 588-89 (App. Div. 2011); cf. Gonzalez, 249 N.J. at 639-42 ([...], concurring) (explaining police lies are currently “weighed” but suggesting they should be outlawed entirely).  However, the police may not make statements that contradict or minimize the Miranda warnings.  O.D.A.-C., 250 N.J. at 420-21; L.H., 239 N.J. at 44.  For example, the police cannot refer to the warnings as a mere “formality”; imply that a suspect’s statements “will not be used against” him or will “remain confidential”; or falsely say that “the truth would be helpful,” “could only help,” or “would actually benefit” the suspect.  O.D.A.-C., 250 N.J. at 420-23 (citing, e.g., State v. Puryear, 441 N.J. Super. 280 (App. Div. 2015); State in re A.S., 203 N.J. 131 (2010)); L.H., 239 N.J. at 44, 47-48.  Other important factors include whether the police “ignored a request to leave,” State v. Sims, 250 N.J. 189, 217 (2022), made “promises of leniency,” or “minimize[d]” the seriousness of the offense, L.H., 239 N.J. at 44-49.  In addition, although the police are not required to automatically disclose to an uncharged defendant that he is a suspect, their failure to do so remains a factor.
[brief] (3T106-11 to 16).  On cross-examination, he stated that the wine chiller was capable of inflicting the type of injuries discovered on the victim.  (3T109-1 to 5).  [...] explained that there are multiple factors involved in the amount of force required to cause fractures to the skull, including the strength of the assailant, the power of the weapon, and the emotion of the assailant.  He explained, “If the assailant is enraged, even if they don’t have that muscle strength and all that, but in a rage, it could create this kind of force. ” (3T102-24 to 103-8).  2.  [...] testified within the bounds of his expertise when he described the victim’s injuries.
[brief] That trial judge ERRED when he said that, ignoring [...]’s sworn 11/14/2023 affidavit filed with the court.  The trial court judge and the Plaintiff’s Attorney chose to narrowly focus only on the first step, the Affidavit of Service on the individual defendant, [...].  They both ignored, required by law of proper notice for the Defendant, the second step of the Request to Enter the Default and for the third step of the Final Judgment by Default.  Each, step is separated by law with time to give the defendant the opportunity to respond, to contest or to dispute the court filing.  That is, an opportunity by the defendant to be heard.  The defendant DID NOT recall being served in 2015, and upon obtaining the court records, his suspicion was confirmed based on the corrupt forged bad and improper court records obtained.  He did say: “We were not served” in the October 19, 2023 and he did identify in his brief, and at the hearing, bad/improper service and notice to the defendants.  But the trial court judge ignored what was said at the hearing on 10/19/23.  We ask this court not to ignore the existing “evidence-in-the-court” record from February 2015 through April 2015, before the Final Judgment by Default was granted on 5/4/2015.