ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] On October 13, 2023, the Trial Court heard oral argument on the defendants’ summary judgment motions and entered summary judgment in favor of [...].  Although the Trial Court acknowledged that there were conflicting facts on the operability of the streetlight (1T:30), it was not persuaded that there were conflicting facts as to the issue of notice.  First, it observed that various members of the [...] never reported the light being out.  Second, [...] had no notice of the light being out prior to the date of the accident.  (1T:30).  Third, “Plaintiff alleged [sic] upon information provided by [...] [sic] to raise a material issue of disputed fact as to the notice issue” (1T:31).  In their underlying brief, plaintiff had presented a succinct analysis as to how a jury could conclude from the statements and deposition testimony of [...] ("the Bavagnoli materials") that notice could have been given before the accident, but the Court did not discuss much of this analysis before arriving at its final conclusion.  Next, the Trial Court found no duty in statute or case law on the part of [...].
[brief] Reconsideration of interlocutory orders is governed by R. 4:42-2.  See Lombardi v. Masso, 207 N.J. 517, 534 (2011) (“[T]he power of a trial court to reconsider interlocutory orders is ‘rooted in common law’ and ‘broadly codified in R. 4:42-2 [.].’”  Ducey v. Ducey, 424 N.J. Super. 68, 76 (App. Div. 2012) (quoting Lombardi, 207 N.J. at 534) (edit in original).  In 2021, this court, in Lawson v. Dewar, addressed the common misconception by both practitioners and the courts as to the appropriate standard for Motions for Reconsideration of Interlocutory Order.
[brief] I.  THE DEPARTMENT’S BULLETIN  REQUIRING THE IMPOSITION OF THE HOLDING ACT IS CONTRARY TO THE REA’S PLAIN LANGUAGE AND THE DEPARTMENT’S PRECEDENT (Ja1-2)  .....21  II.  THE DEPARTMENT’S BULLETIN REQUIRING THE IMPOSITION OF SSAP NO. 25 TO THE AIF FEE IS CONTRARY TO SSAP NO. 25’s PLAIN LANGUAGE (Ja1-2)  .................................................................26  III.  THE DEPARTMENT’S PAST PRECEDENTS  CONFIRM THAT NEITHER THE HOLDING ACT NOR SSAP NO. 25 APPLY (Ja1-2; Ja72-76)  ...............................................................................................................................30
[directive] TO: ALL LAW ENFORCEMENT CHIEF EXECUTIVES  SUBJECT: Semi-Annual Firearms Qualification and Requalification Standards for New Jersey Law Enforcement  Following is the revised directive requiring all law enforcement officers to satisfactorily complete designated firearms qualification courses so that they may continue to lawfully carry a firearm in the State of New Jersey.  This directive will be effective January 1, 1991.  The previously issued directive, dated June 17, 1985, mandated semi-annual firearms requalification, provided an explanation of Tennessee v. Garner and outlined the firearms requalification program.  That program included requirements for requalification with both service and off-duty weapons, along with requirements for systematic record keeping of qualifying scores.  The Semi-Annual Firearms Qualification and Requalification Manual, which accompanies the revised directive, provides the approved training and qualification requirements for law enforcement personnel exempt from the provisions of N.J.S.A. 2C:39-5.
[directive] A prosecutor must first determine whether the defendant is eligible for one of the two “standardized waivers” that are described more fully in Section 6.  When a defendant is not eligible for either the standardized “flat” plea offer or a standardized “open” plea offer, the prosecutor must initiate a calculation procedure to determine the nonstandardized case-specific authorized plea offer.  This calculation system relies on grid-like Tables of Authorized Plea Offers, which are reproduced in Appendix II.  Experience has shown that most cases will use Table 1 (for a drug-free school zone offense) or Table 2 (for a non-school zone case where the defendant is subject to a waivable mandatory term of imprisonment only because he or she has previously been convicted of a drug distribution-type offense).  To use the Table, the prosecutor must identify the appropriate drug distribution-type charge and must consider certain “Special Offense Characteristics,” such as whether the offense involved weapons or whether the offense involved an especially large amount of drugs.  The prosecutor must then look at the defendant’s criminal history.  The Table compares the seriousness of the offense (the vertical axis) and the extent of the defendant’s criminal history (the horizontal axis) and displays at the intersection a box or “cell” that shows a range of authorized plea offers (a minimum offer, a “presumptive” offer which is highlighted, and a maximum offer) for pre-indictment pleas, initial post- indictment pleas, and final post-indictment pleas.  The prosecutor must use the “presumptive” plea offer displayed in the applicable cell of the Table unless there is a basis for moving up or down within the range.  This requires the prosecutor to consider aggravating and mitigating circumstances.  See Section 10.  To ensure uniformity at this point in the calculation process, each relevant factor is carefully defined and is pre-assigned a point value or range of point values.  These point values are totaled (usually 2  This Section concisely summarizes the basic steps that a prosecutor must follow to determine an appropriate and authorized plea offer.
[brief] N.J.S.A. 47:1A-1.1.  Likewise, it is difficult to conceive of how [...]’s custodian, who is expected to discharge a “ministerial” duty, would be in a position to know which of these emails are privileged and which are not.  Mason, 196 N.J. at 61; see also Lagerkvist v. Office of the Gov’r, 443 N.J. Super. 230, 234 (App. Div. 2015) (recognizing the scope of a custodian’s “‘routine ministerial’” function).  This court has already recognized that there are circumstances where this decision-making necessarily requires a higher level of understanding, familiarity, or skill than a custodian can reasonably be expected to exercise.  Fisher v. Div. of Law, 400 N.J. Super. 61, 65 (App. Div. 2008).  In many circumstances, like the one here, this will require high-ranking officials to divert their time from discharging important agency business to review and redact hundreds or even thousands of pages of records, an outcome that runs counter to important public policy considerations.
[brief] II.  ADDITIONAL STATEMENT OF FACTS  No trial was scheduled for [...] at the time of his appearance on September 13, 2023, if he did not reach a plea agreement with the State.  As the municipal court stated on the record, “Did you want to come back on a trial?”  2T16-9 to 10.  Fish and Game conversation officer [...]’s appearance on September 13, 2023 was requested by the municipal prosecutor in order for the prosecutor to evaluate his opinion regarding defendant’s argument as to whether the Fish and Game citation could be downgraded to a municipal ordinance.  [...] through his attorney and the municipal prosecutor agreed to an adjournment so that defendant’s counsel could file a motion to dismiss the Fish and Game citation either at the Manchester municipal court or in a different venue.  The municipal prosecutor chose not to go on the record on September 13, 2023 regarding [...]’s matter.  The municipal prosecutor spent the time that [...] was on the record with the municipal court to negotiate with other defendants potential plea agreements.  The municipal court suggested to [...] a conditional guilty plea when [...] did not want a trial to challenge the distance measured between the pumphouse and where [...] was cited.  2T17-4 to 15.  [...], through his counsel’s explanation, accepted the municipal court’s suggestion.  2T17-16 to 25, 2T18-1 to 9.  III.
[brief] THE OFFICER LAWFULLY SEARCHED DEFENDANT’S VEHICLE PURSUANT TO THE AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT ....................10  POINT II  DEFENDANT VOLUNTARILY ADMITTED THAT HIS VEHICLE CONTAINED DRUGS ..............................................21  POINT III  DEFENDANT WAS NOT IN CUSTODY UNTIL THE OFFICER TOLD HIM THAT HE WAS GOING TO BE UNDER ARREST  ........26  A.  Defendant Was Not In Custody When [...] Referenced a Dog Sniff ..............................................29  B.  Defendant Was Not In Custody As Soon As the Police Had Probable Cause to Arrest Him ................................32  C.  Defendant’s Remedy for the Miranda Violation Does Not Include Suppression of the Physical Evidence ..................35  POINT IV  THERE IS NO BASIS TO REMAND FOR ANOTHER SUPPRESSION HEARING.
[brief] Detectives [...] and [...], along with Detective Sergeant [...], each operating separate, unmarked vehicles, went to the Garden State Parkway to attempt to locate defendant’s Audi.  The detectives located the Audi in the area of milepost 120.  In the area of milepost 105, the detectives observed defendant “go from the far left lane, switch over two lanes abruptly without lane changes, go over a solid white line and exit” at exit 105 onto Route 36.  “[I]n doing so, he actually caused a civilian vehicle that was already exiting to actually slam on their brakes and slow down quickly to avoid a collision. ”  This driving fit the requirements for various motor vehicle infractions, including careless driving, reckless driving, and improper lane change. (1T:25-8 to 28-4; 77-18 to 91-19; 96-22 to 97-3; 111-12 to 111-21; 2T:21-2 to 22-3).
[brief] However, to sign and to seal as-built drawings an engineer would have to perform inspections personally, not a NICET inspector.  Pa2122.  [...] concluded that [...] was not performing any engineering duties.  Pa2116.  He was not on site and had no personal role in the inspection of compliance with the contract.  Inspection is not engineering work.  Pa2118.  Plaintiff retained the expert services of [...], an expert in construction and OSHA regulations.
[brief] First, in addressing this prejudgment interest.  First, under 4:42-11(b), I mean it is -- there has to be exceptions and -- for tort actions and, again, this delay, lack of the settlement and so forth, I don't find.  So it falls within that.  I think the statute speaks for itself.  I agree with the defendant that it should be from the date of the filing.  I know there is an argument on equitable principles.  We should go back to 2008.  I am just not satisfied to do that.
[brief] The Division then considered whether it was appropriate to mold the improper conviction for 1st degree kidnapping into 2nd degree kidnapping.  Id. at 571.  It found that in that case, since the trial judge had read the elements necessary for 2nd degree kidnapping and the jury returned a verdict based on those elements, there was no molding at all.  Ibid.  Rather, modifying the judgement of conviction to a 2nd degree simply “memorialize[d] the jury’s verdict. ”  Ibid.  The Division also suggested that any attempt to retry the defendant for a 1st degree kidnapping could implicate double jeopardy issues.  Ibid.  The reasoning in Casilla was recently applied by this court once more in State v. Paden-Battle, where the trial judge again failed to read the necessary element to elevate kidnapping to a 1st degree.
[brief] (T2/9:13-19).  The Applicant also had obtained the City’s support and approval for the Project, entering into an Agreement of Sale for the Property based on its existing zoning.  (T1/23:9-28:13).  In addressing the Property’s parking limitations, [...] also explained that the Applicant’s proposed change in use would result in less of a parking demand as compared with when the restaurant operated at the Property, which did not previously meet the ordinance requirements.  (T1/56:1-57:6).  [...] opined that the reduction in demand is, in fact, a positive impact according to the Land Development Rules.  (T1/78:2-7).  Given the existing property configuration and nonconformities, [...] also explained that the Property’s proximity to a pay to park garage (a unique feature in the City) and nearby street parking would provide more than enough parking for the proposed use, and would in fact, be similar to what persons visiting the hospital next door did.  (T1/57:6-13; 58:7-15).  Even [...], who testified on behalf of [...] admitted that due to the size of the existing building and the shape of the property itself, there was no place for on-site parking.  (T1/177:1-16); see also, N.J.A.C. 19:66-7.2(e) (permitting shared parking arrangements in the Tourism District).  With no on-site parking, ingress and egress to the Property would be primarily by way of pedestrian access, plus deliveries that would occur no more than once per day and either before or after business hours.  (T2/19:13- Moreover, security personnel would be on-site to facilitate not only those deliveries, but to direct customers to where parking is available off-site, thereby further limiting frequency of visits to the Property by vehicle.  (T1/63:25-64:5; 65:10-15; 207:6-13).  Resultantly, in reference to the negative criteria, the recognition that the use was permitted, and taking place at a location with a pre-existing, non-conforming lack of on-site parking, with limited vehicular deliveries, demonstrated a lack of any substantial detriment to the public good, and a lack of any significant detriment to the zone plan.  The record demonstrates that [...] satisfied its burden of proving both the positive and negative criteria.
[brief] For the foregoing reasons and authorities cited, defendant-appellant [...] respectfully submits that the trial court's order denying suppression of evidence seized (the handgun) should be reversed and defendant's guilty plea vacated.  Respectfully submitted, [...] NJ BAR ID NO.: 242391967  Attorney for Defendant-Appellant  [...]  Dated: February 28, 2024  SUPERIOR COURT OF NEW JERSEY  APPELLATE  DIVISION DOCKET NO. [...]  STATE OF NEW JERSEY, v. MICHAEL ALLEN, Defendant-Appellant.  CRIMINAL ACTION  On Appeal from a Judgment Of Conviction of the Superior Court of New Jersey, Law Division, Camden County.  Indictment No. [...]
[brief] As [...] and [...] moved for dismissal at that same time, the additional expense incurred by [...] in also seeking leave to amend its answer was negligible.  Both the Respondent and the motion judge are mistaken in that the entire controversy doctrine is not to be applied willy nilly but only as a last resort.  Where, as in our case, the motion judge had elected to dismissed the claims without prejudice, the court should have followed *Kaselaan & D'Angelo Assocs., Inc. v. Soffian*, supra, by permitting the new filing “to proceed simultaneously."  See 290 N.J. Super. at 300-01.  The doctrine will be not applied "where to do so would be unfair in the totality of the circumstances and would not promote any of its objectives, namely, the promotion of conclusive determinations, party fairness, and judicial economy and efficiency."  Pressler, *Current N.J. Court Rules*, comment 3.2 on R. 4:30A (2009).  Allowing plaintiffs' claims to proceed in state court is consistent with these principles.  A “dismissal with prejudice is the ultimate sanction, [and thus] it will normally be ordered only when no lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party.
[directive] Issuance: V. A.  The Court may issue a Certificate at the time of sentencing if the applicant: 1. is a qualified offender being sentenced to a non-incarcerative sentence for a second, third, or fourth degree crime; 2. has established licensing or employment disqualification, a specific forfeiture, or bar will apply and may endanger their ability to maintain existing public employment or employment for which he has made application, or to engage in a business for which license or certification is required; 3. has no pending criminal charges and there is no information presented that such charges are imminent; and 4. has established that issuance of the Certificate is consistent with the public interest.  Certificates issued pursuant to this section shall apply only to the specific disability, forfeiture or bar that is affected, which must be specifically described in the Certificate.
[brief] Had the parties intended to mandate arbitration of all disputes, they would have used the compulsory word “shall. ”  The parties knew this because the word “shall” appears 10 times elsewhere in the arbitration section alone.  Da376-77.  Contractual construction must give meaning to this deliberate word choice to reflect the permissive, rather than mandatory, nature of this arbitration clause.  See generally, Schor v. FMS Fin. Corp., 357 N.J. Super. 185, 191 (App. Div. 2002) ("the terms of the contract must be given their plain and ordinary meaning ... the court should not torture the language of a contract to create ambiguity" (internal citations and quotations omitted).
[brief] 1T – Transcript of Trial dated March 16, 2023  2T – Transcript of Trial dated March 20, 2023  3T – Transcript of Trial dated March 21, 2023  4T – Transcript of Trial dated March 22, 2023 (morning)  5T – Transcript of Trial dated March 22, 2023 (afternoon)  6T – Transcript of Trial dated March 23, 2023  7T – Transcript of Trial dated March 27, 2023  8T – Transcript of Trial dated March 28, 2023  9T – Transcript of Trial dated March 29, 2023
[brief] Additionally, there is nothing in the record to show that the defendant knew that additional safeguards needed to be placed in the non-management employee parking area.  In the depositions taken of the defendant corporate representatives, none were ever asked about this.  See, Pa499-Deposition Transcript of [...].  See, Da88-Da109, Deposition Transcript of [...].  See also, Da110-Da135, Deposition Transcript of [...].  Likewise, plaintiff never deposed any persons from the engineering company that designed the parking lot and never produced any evidence that they made recommendations to defendant for additional pedestrian safeguards in the non-management parking area which were rejected by defendant.  Additionally, quoting to defendant [...]’s testimony that a crosswalk in the area would have alerted her to pedestrians does not prove that the defendant disregarded known safety concerns or that it was a substantial certainty that a pedestrian would be struck by a vehicle.  [...] also testified that she drove through the parking lot regularly during shift changes (the time of the accident being a “mass entrance” of people) making it virtually certain that she knew that people would be walking through the parking lot at the time of the accident such that she needed to exercise due caution when operating her vehicle in the parking lot.  (Pa485).  In short, plaintiff is improperly trying to impute knowledge of a substantial certainty to defendant based solely on the happening of this accident.
[brief] We review a decision made by an administrative agency entrusted to apply and enforce a statutory scheme under an **enhanced deferential standard**.  *Hargrove v. Sleepy’s, LLC*, 220 N.J. 289, 301-02 (2015).  We are bound to defer to the agency’s factual findings if those conclusions are supported by the record.  And “[w]e will defer to an agency’s interpretation of both a statute and implementing regulation, within the sphere of the agency’s authority, unless the interpretation is ‘plainly unreasonable. ’”  *In re Election L. Enft Comm’n Advisory Op. No. 01-2008*, 201 N.J. 254, 262 (2010) (quoting *Reilly v. AAA Mid-Atl. Ins. Co. of N.J.*, 194 N.J. 474, 485 (2008)).
[brief] The Trial Court Failed to Provide Sufficient Findings of Fact Concerning the Appropriate Amount of the Sanction  “To award attorney’s fees pursuant to Rule 1:4–8(d)(2), the court must set forth findings pursuant to Rule 1:7–4 that reasonable attorney’s fees were actually incurred as a direct result of a frivolous claim as opposed to imputed. ”  Est. of Finnegan v. Finnegan, No. A-1589-13T2, 2014 WL 7506758, at *5 (N.J. App. Div. Jan. 12, 2015).  Indeed, “[t]o this end the first inquiry of the court should be into the hours spent by the attorneys. ”  Rendine v. Pantzer, 141 N.J. 292, 337 (1995).  A court must calculate the “lodestar,” i.e., “the number of hours reasonably expended multiplied by a reasonable hourly rate. ”  *Id.* at 334-35.  Furthermore, an analysis of the reasonableness of an attorney fee awarded as a sanction must be stated on the record.  *See,* e.g., *City of Englewood,* 406 N.J. Super. at 125 (citation omitted) (holding that a Trial Court must analyze the relevant factors and “state its reasons in the record for awarding a particular fee”); *R.M. v. Supreme Court of N.J.*, 190 N.J. 1, 12-13 (2007) (vacating and remanding counsel fee award where lower court failed to explain how or why it arrived at award); *Feliciano v. Faldetta,* 434 N.J. Super. 543, 549 (App. Div. 2014) (requiring courts to make findings on each element of the lodestar fee).  Such findings are nonexistent in the Sanctions Order.  The Trial Court failed to offer any detailed analysis as to the number of hours worked or hourly fee charged by [...]’s counsel, or what the lodestar fee should be in this case.
[brief] More than 2½ years after Appellants defaulted under the Lease by failing to pay the annual rent due to [...], and after Appellants voluntarily surrendered the Property to [...] in accordance with the Lease, Appellants first sought to assert a claim that they were wrongfully removed from the Property in Count 18 of the proposed Second Amended Complaint.  The lack of merit and delay in seeking to assert this claim militated against allowing the Appellants to assert it.
[brief] 11 Smith v. SBC Communications. Inc., 178 N.J. 265 (2004) ...............................  11 Stewart v. Sbarro, 142 N.J. Super. 581 (App. Div. 1976) ...............................  25 Teamsters Local 97 v. State of New Jersey, 434 N.J. Super. 393 (App. Div. 2014) ..............................................................................................................
[brief] See N.J.S.A. 40A:12A-7(e) ("Prior to the adoption of a redevelopment plan, . . . the planning board shall transmit to the governing body, within 45 days after referral, a report containing its recommendation concerning the redevelopment plan," which should "include an identification of any provisions in the proposed redevelopment plan which are inconsistent with the master plan .  . . .").  In a memo dated the following day, September 9, 2022, the Planning Board Planner, [...], wrote to the Planning Board transmitting his recommendation based on his review of Ordinance No. 2022-15 and the Plan.  (Pa177-Pa180).  Dochney noted the Township's Master Plan "does not specifically make any recommendations regarding this [P]roperty or development of industrial and warehouse uses in general."  (Pa179).  Further, he noted the Property had been historically used as a golf course and had no active farming operation.  (Pa179).  Regarding the traffic impact of a warehouse, Dochney concluded that because the Property was located at the southwestern edge of town, truck traffic to and from the warehouse would have minimal impact on [...]'s roads.  (Pa179).  On September 20, 2022, the Planning Board held a meeting at which Dochney reiterated the contents of his September 9, 2022 memo.  (1T4:9-13:5).