ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[directive] STANDARD 2.  STANDARD QUESTIONS  When questioning prospective jurors, the judge must include the model jury selection questions approved by the Supreme Court for that type of trial, which are attached hereto.  The approved questions provide a common basis for voir dire questioning but are not intended to constitute all of the questions asked of jurors.  These questions are intended as a base and are provided, at this time, for (a) all criminal trials, (b) all civil trials, and (c) additional questions for civil trials relating to (1) slip and fall cases, (2) auto cases, and (3) medical malpractice cases.  Included within the model questions are inquiries of each juror whether he or she meets the juror qualifications set forth in N.J.S.A. 2B:20-1.  Even though these questions are contained on the qualification questionnaire returned by prospective jurors and generally asked of jurors while in the juror assembly area, they are included here as a further safeguard to ensure that all trial jurors are fully qualified.
[brief] (Da13-14, Lease at § 2.01).  These monthly payments include each of the following charges (collectively, the “Monthly Payment”):  - Minimum Rent of $24,266.67 (from August 1, 2018 to July 31, 2023).  (Da11, 13-14, Lease at §§ 2.01, 1.01(H)); - Tenant’s proportionate share of Common Area Maintenance for the Shopping Center.  (Da12, 26-29, Lease at §§ 7.01, 1.01(K)); --- \(^6\)  Pursuant to the terms of the Lease, all sums due and payable by Tenant to Landlord are defined as “Additional Rent”.  (Da14, Lease at § 2.01(d)).  • Tenant’s proportionate share of Real Estate Taxes assessed against the Shopping Center.  (Da12, 14-15, Lease at §§ 2.04, 1.01(L)); and • Tenant’s proportionate share of Utilities for the Shopping Center, including Tenant’s proportionate share of heat, water, gas, electricity, sewer and garbage collection.  (Da30, Lease at § 8.01(c)).  The Lease provides that, if Tenant fails to make any payment due and owing under the Lease on or before the fifth (5th) day after the applicable due date, Tenant shall pay to Landlord an overhead charge equal to five percent (5%) of the then delinquent amount.  (Da54-55, Lease at § 17.03).  The Lease further provides that all unpaid amounts due under the Lease shall bear interest at the rate of 5% above the prime lending rate offered by [...] or its successor (i.e. 8.25% - consisting of 5% above the [...] prime lending rate of 3.25% that was in place during the applicable timeframe).  (Da54-55, Lease at § 17.03; Pa106).  (ii) Events of Default
[brief] That's the question.  (Emphasis added)  A  Okay.  Q  And your answer is?  A  I'll think about it.  [*after a long time of several minutes of silence from the witness*]  Q  Okay.  Should I sit down, or could I stand here and wait?  A  Oh, that depends how you feel.  Q  I feel pretty good today.  A  Then you can walk around a little bit.  Q  Pardon? A  Then you ought to walk around a little bit.  Q  Oh, come on [...].  You and I have known each other for a long time.  And your answer is?  A  Oh, I thought I had an opportunity to think about it.  Q  Okay.  I’ll sit.  You let me know when you are through thinking and you can answer the question.  Do you understand the question?  A  I think I do.  Q  Do you want it repeated?  A  No, I don’t want to go down that road with you.  Q  Pardon?  A  I said no, I’d rather give it some thought.  Q  Okay.  [*[...] sits down, and after another embarrassingly long time of several minutes of silence from the witness]
[brief] The Supreme Court also looked at factors applicable to a forum non conveniens analysis.  Id. at 390-91.  In other words, [...] established a discretionary totality of the circumstances analysis based on fairness and comity—not a bright-line test or pre-determined set of factors a trial court must slavishly follow.  This court applied the analytical framework from [...] to affirm dismissal of a first-filed declaratory judgment action in favor of a later-filed breach of contract case in [...]
[brief] Accord State v. Strecko, 244 N.J. Super. 463, 465 (App. Div. 1990).  The "[s]imultaneous possession” of two different drugs in violation of the same statutory section, such as subsections (a)(1), possession of cocaine, and (a)(3), possession of marijuana, of N.J.S.A. 2C:35-10, must “merge when neither offense involves an intent to distribute. ”  Id. at 465.  Defendant’s sentence to a term of 12 years’ imprisonment for first-degree possession of marijuana with the intent to distribute, even after the above merger, was fair and fitting punishment for having trafficked in 175 pounds of marijuana.
[brief] (Da224; Da226; Da229).  When he asked for such an opportunity to be heard and a stay of proceedings, the [...] denied him that one opportunity.  (Da131-132).  The Trial Court implied that [...] was not deprived of due process because he could have intervened in the proceedings related to the [...] Complaint at any time if he felt that his interests were not being represented.  Ignoring for the moment the fact that his attempts to intervene were denied by the [...] (as set forth above), a straightforward application of the Trial Court’s reasoning would produce an absurd result.  If an administrative agency could issue a substantive order which impacts **any** person or entity not appearing before it, then every single person or entity would bear an affirmative obligation to monitor all potential and active cases in any administrative agency, to keep track of which actions have a possibility negatively impacting them.  This is especially difficult when considering that for many agencies, including the [...], the filings and orders are not easily available on a public docket.  [...] was not included in the proceedings related to the [...] Complaint at any point in time, except that he had multiple orders entered against him.  The fact that he may have voted as a Commissioner to hire an attorney for the Fire District did not mean that said attorney represented his personal and individual interests.  In light of the foregoing, it becomes readily apparent that the proceedings conducted by the [...] that gave rise to the issuance of the above-referenced Interim Orders denied [...] his constitutional right to due process in connection therewith, since he was not afforded adequate notice and a fair and meaningful opportunity to be heard.  Consequently, it is respectfully submitted that those orders are null and void, and that the February 9, 2022 Order entered by the Trial Court enforcing the [...] orders be reversed and remanded for further proceedings.
[brief] To find an accomplice guilty of the same offense as the principal, “it is essential that [the accomplice] shared in the [principal’s] intent which is the crime’s basic element, and at least indirectly participated in the commission of the criminal act. ”  *State v. Fair*, 45 N.J. 77, 95 (1965); see also *State v. Maloney*, 216 N.J. 91, 105 (2013) (explaining that the State must prove that the accomplice “‘possessed the mental state necessary to commit the offense’”) (quoting *State v. Whitaker*, 200 N.J. 444, 458 (2009)).
[brief] Among other things, [...] noted:  • [...] had previously removed the New Jersey Superior Court action to the United States District Court for the District of New Jersey only days before a hearing scheduled by [...] to determine if [...] Conway had violated the Courts’ injunction, and then tried again to remove the action, again one day before [...]’s rescheduled hearing, (Da3127) - [...]’s “central theory of wrongful conduct is that the members... combined to purchase [...]’s proxy in order to win control over [...] and later agreed to have [...] assume the debt they incurred in purchasing the proxy,” (Da3135) (emphasis added); - [...]’s breach of fiduciary duty claim included that “various defendants engaged in self-dealing in violation of their fiduciary duties and New Jersey law,” by, among other things, alleging that “transfer[ing]... their own individual debts for... debts to the LLC, in secret for personal tax and cash or debt benefits to... themselves as individuals,” (Da3142); - Finding that “[[...]’s] suit was essentially an improper attempt to appeal judgements entered by the arbitrator and confirmed by the Superior Court [of New Jersey],” (Da3148)
[brief] Further, any opposition to RULLCA’s applicability to [...] were waived when Respondents failed to object to its application and failed to file an appeal.  The New Jersey Supreme Court has held that the law of the state chosen by the parties should not apply when the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties' choice.  Instructional Sys. v. Comput. Curriculum Corp., 130 N.J. 324, 327 (1992).  Further, the Appellate Court sharpened this point in SKS Holdings LLC v. Kaplan, finding that when “… parties’ transactions have no connection to Delaware, that state’s laws should not apply. ”  Nos. A-4606-19, A-4626-19, 2023 N.J. Super. Unpub. LEXIS 682, at *14 (App. Div. May 5, 2023).  In SKS Holdings, the Court found that a Delaware limited liability company functioning and doing business in New Jersey was not required to honor a Delaware choice of law provision in an operating agreement if there was no substantial relationship to the State where it was organized.  Id.  --- 3 SKS Holdings LLC v. Kaplan, Nos. A-4606-19, A-4626-19, 2023 N.J. Super. Unpub. LEXIS 682 (App. Div. May 5, 2023).  A copy of this unpublished opinion is attached to this brief and Appellant is unaware of any contrary opinions.  R. 1:36-3.
[brief] **Parking Stall Size:**  In the VC-2 Overlay Zone, pursuant to Ordinance Section 108-9.1 10 foot by 20 foot spaces are required.  The Applicant proposes 10 foot by 18 foot spaces for nonresidential uses and 9 foot by 18 foot spaces are proposed for residential uses (in compliance with RSIS).  The Applicant submits that the 10-by-18 spaces that are being provided here are large enough for most vehicles to fit into and the ten-foot wide spaces provide space for people with packages to get in and out of their cars.  The 9 by 18 spaces for the residential uses comply with state Residential Site Improvement Standards (RSIS) that apply throughout the State.  The Applicant offers no valid reasons for this variance for the size of nonresidential parking spaces and the only basis is to advance its economic interests by over-building this Property.  7.
[brief] POINT 6 – [...] Has Provided No Basis For This Court to Apply  Estoppel  [...] alleges that the trial court should not have entered summary judgment because [...] is estopped from withdrawing its defense.  (Db, p. 24-27).  While [...] listed estoppel as a separate defense in his pleading, [...] did not allege estoppel in his counterclaims against [...].  (Da29, Da31-36).  [...] also never cross-moved for summary judgment on estoppel grounds.  Because estoppel was not pleaded below and [...] never moved for summary judgment, it should be considered waived here.
[brief] ...........................................  27 Porter v. Warner Holding Co., 328 U.S. 395 (1946) ......................... 38 Quarto v. Adams, 395 N.J. Super. 502 (App. Div. 2007) ............... 25 Richardson v. Board of Trs., 192 N.J. 189 (2007) ....................... 25 Schultz v. Rector-Phillips-Morse, Inc., 261 Ark. 769 (1977) ............  33 SEC v. Better Life Club of Am., Inc., 995 F. Supp. 167 (D.D.C. 1998), aff'd sub nom., United States SEC v. Better Life Club of Am., Inc., 203 F.3d 54 (D.C. Cir. 1999) ............................................. 36, 37 SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180 (1963) .......... 33 SEC v. Hughes Cap. Corp., 124 F.3d 449 (3d Cir. 1997) ..................  39 SEC v. McNamee, 481 F.3d 451 (7th Cir. 2007) ..........................
[brief] ”  N.J.S.A. 18A:64M-2(b).  Furthermore, it provides: “Upon reorganization in 1956, Rutgers’ formerly private governing board—the Board of Trustees—transferred all management, control, administration, and policy-making functions to the publicly controlled Board of Governors. ”  N.J.S.A. 18A:65-12 (emphasis added).  The trial court thus found that “the legislature in enacting 18A:65-25 delegated . . . specific authority and responsibility to the Board of Governors. ”  (1T71).  Defendants argue that the State cannot delegate authority which it did not create because the BOG’s powers were already possessed by the Trustees pursuant to the University’s constitutionally protected charter.
[brief] There is no indication that [...] was dissatisfied with defense counsel long before trial but sat on his constitutional right, invoking it solely for the purpose of delay.  Instead, his comments reveal his frustration with counsel’s performance at trial itself.  And even if there were some indication that [...] sought to postpone trial, the court did not deny the request on that basis, nor could it have done so without first inquiring into whether [...] would seek an adjournment if his request were granted.  At bottom, even mid-trial requests to proceed pro se must be taken seriously.  Presented with such a request, the court was required to balance [...]’s constitutional interest in representing himself with the government’s legitimate interest in judicial economy.  See Cooksey, 233 F.3d 798 n.16; Thomas, 362 N.J. Super. at 241.  The court’s utter failure to do so constitutes an abuse of discretion.  See Slutsky v. Slutsky, 451 N.J. Super. 332, 356 (App. Div. 2017) (a trial judge abuses his or her discretion by failing to consider all of the controlling legal principles) (quotation omitted).  Cf. Stevens, 83 F.3d at 67 (district court did not abuse its discretion in denying defendant’s mid-trial request to represent himself after careful consideration).
[brief] Moreover, completely undermining any arguments regarding [...]’s purported misunderstanding of the Supplemental Form is the fact that [...], on behalf of [...], explained the nature of non-owned/hired auto coverage to [...] before the Supplemental Form was submitted.  (Ia076 at ¶ 11; Ia119).  She expressly demonstrated the difference between the two parts of the Supplemental Form, advising:  “Non-Owned & Hired auto liability covers bodily injury and property damage caused by a vehicle you hire (including rented or borrowed vehicles) or caused by non-owned vehicles (vehicles owned by others, including vehicles owned by your employees). ” (Ia076 at ¶ 11; Ia119).  [...], on behalf of [...], simply did not disclose material information regarding the vans that [...] had hired/rented.
[brief] Fear of damage to one’s…generalized property rights shared with other property owners is insufficient to demonstrate a particularized property right.  *In re AMICO*, 371 N.J. Super. at 212.  Each of these decisions bases the lack of a particularized property interest on the fact that the potential harm faced by the party requesting a hearing is general in nature.  In contrast, Appellant’s request for a hearing is grounded in a factual navigational harm that has uniquely impacted Appellant.  [Aa349-Aa382.]  In sum, the [...]’s finding that “[Appellant] alleges only generalized property rights, indistinguishable from those shared by other neighboring property owners” is not based on the evidence in the record.
[brief] ”  Ja151; see 5T 78:3-25 through 80:1-7 (emphasis added).  Traffic does not appear in the listed concerns for the GM Zone; “[t]raffic impacts are not cited in any way. ” (5T 78:16).  In addition to other imaginary “findings” already discussed, the “Conclusions of Law” states, “[i]n reliance upon the 1999 Master Plan and the applicable zoning ordinance sections”, the proposed structures would be a “more intense use than the Planning Board and governing body intended at the subject property, would be substantially detrimental to the public good, and would substantially impair the zone plan and zone ordinance. ”  Ja034.
[brief] Our courts have long found that a conviction for possession must merge with a conviction for possession with intent to distribute that same substance when the counts refer to the same quantity of the same drug.  See, e.g., State v. Gibson, 318 N.J. Super. 1, 11-12 (App. Div. 1999) (“We agree with defendant that his conviction on count two for possession of a controlled dangerous substance . . . should have merged with his conviction on count three for possession of a controlled dangerous substance with intent to distribute . . . .”); State v. Selvaggio, 206 N.J. Super. 328, 330 (App. Div. 1985) (“The convictions for possession merge into the convictions for the simultaneous possession with intent to distribute the same substance. ”); State v. Sherwood, 139 N.J. Super. 201, 206 (App. Div. 1976) (agreeing with the defendant, and noting that the State conceded, that “conviction for possession of LSD merged with the conviction for possession with intent to distribute the same”); State v. Rechtschaffer, 70 N.J. 395, 412 (1976) (noting that “possession was an indispensable element of the possession with intent to distribute in this case”).
[brief] ”  State v. Garcia, 245 N.J. 412, 435 (2021) (internal quotations and citation omitted).  Although trials are a competitive atmosphere, and prosecutors are afforded wide leeway in making arguments, they must nonetheless “stay within the orbit of strict propriety and adhere to the high ethical standards of their office. ”  Ibid. (internal quotations and citation omitted).  If a prosecutor’s comments substantially undermine a defendant’s right to have the jury fairly evaluate the merits of the case, the convictions must be reversed and remanded for a new trial.  Id. at 436.  When determining whether prosecutorial misconduct warrants reversal, appellate courts should evaluate (1) whether defense counsel made timely and proper objections to the improper remarks, (2) whether the remarks were withdrawn promptly, and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them.
[brief] ”  (1a)  On April 24, 2020, counsel for the [...] defendants issued a R. 1:4-8 letter to plaintiff’s counsel demanding the withdrawal of the Complaint.  (SDa1)  On April 30, 2020, without responding to counsel’s R. 1:4-8 letter or withdrawing the Complaint, plaintiffs filed an Amended Complaint to add Counts against [...], Esquire, [...], Esquire and [...], counsel of record for defendants, [...], [...], [...], and [...].  (“Fox Rothschild defendants”)  (68a)  Plaintiffs also added Counts against [...], Esquire, [...], Esquire and [...], counsel of record for the [...] defendants.  (“Marshall Dennehey defendants”)(Id.)  On May 28, 2020, the [...] defendants filed their Motion to Dismiss the Amended Complaint, based, *inter alia*, on numerous applicable doctrines, including the Entire Controversy Doctrine, Law of Case Doctrine, and the Doctrine of *Res Judicata*.
[brief] *Ibid.*  Moreover, the settlement between the parties improved on plaintiff’s right to attorney’s fees and costs by making the discretionary award under the MMWA be mandatory pursuant to the settlement agreement.  The trial court violated these policies by depriving the plaintiff of the resources she needed to guarantee her the equal access to the courts, as promised by Congress and by the New Jersey Legislature and Supreme Court.  *Ibid.*; (Pa11-16; Pa23-156; Pa244-284).  Accordingly, reversal is warranted.
[brief] But here, the State’s only witness glossed over those critical details -- in a bare-bones hearing that produced only twenty-three transcript pages -- and at times testified to a version of events directly contradicted by the police reports and objective BWC.  (1T)  Based on the State’s distorted version of events, the motion court made the critical erroneous findings that “[u]pon initial contact in the courtyard, [...] readily disclosed that the gun was in her apartment near the television” and that there was not “any sign of her unwillingness to cooperate with law enforcement. ”  (Da 33)  But as the BWC and police reports reveal, neither of those findings were accurate.  In fact, [...] did not readily disclose anything upon initial contact; she denied knowing anything until the police detained her and put her in handcuffs.
[brief] (Pa227, Pa230, Pa234, Pa681, Pa324-417, Pa655-722, Pa991-92, Pa999, Pa1022-23)  It is undisputed that [...] transferred appellant because of her complaint of sexual harassment.  (Pa230); (Pa681) 103:11-24, 118:1-120:12; (Pa230, Pa324-417) 98:17-104:25, 106-109:19, 233:3-234:13.  [...] simply claims that transferring Appellant in response to her complaints of sexual harassment by [...] cannot constitute retaliation because it was their “only effective remedial measure” feasible.  See [...] Opposition Brief § II(B)(1); 1T86:1-24.  At worst, [...]’s transfer decision is unequivocal retaliation that punished the victim.
[brief] [...] also testified that, “There is a great deal of control as to how Court sessions are performed and yes, they are very controlled methods. ”  [...] also reported this Factor is not a strong indicator of independent contractor status.  The only basis for her determination is that Petitioner was retained under a Professional Services Agreement between 2009 – 2014.  However, [...] conceded that Petitioner was not subject to an RFP process or a Professional Services Agreement for the period of 2015 to the present, which is the only period at issue in this case.  Critical to this analysis is that [...] conceded that Petitioner was **not** appointed under the no bid professional services language of the Local Public Contracts Law from 2015 to the present.
[brief] THE DELEGATION OF REGULATORY AUTHORITY TO AN ENTITY THAT IS EFFECTIVELY CONTROLLED BY A PRIVATE NON-GOVERNMENTAL INTEREST GROUP VIOLATES ART. III, PAR. 1 AND ART. IV, SEC. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION (Pa115, Pa123-127, Pa127-130).  Art. III, Par. 1 states in full that “the powers of the government shall be divided among the three distinct branches, the legislative, executive, and judicial.  No person or persons belonging to or constituting one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution”.  In Brown v. Heymann, 62 N.J. 1, 9 (1972), the Court held that “there is no indication that our State Constitution was intended, with respect to the delegation of legislative power, to depart from the basic concept of distribution of powers of government embodied in the Federal Constitution….”.  So, it is appropriate to look to the private non-delegation doctrine under the federal cases (as hereinafter discussed) in order to determine whether the delegation of regulatory authority to the [...] violates the New Jersey Constitution.  The doctrine of separation of powers is intended to be applied so as to maintain the balance between the three branches of government, to safeguard their respective independence and integrity and to preclude the concentration of unbridled power in any one branch.
[brief] (Da56-Da57; Da432-Da513).  [...] alleged in her EEO complaint that [...] began harassing her in March/April 2018 both in person and in text messages.  (Da58; Da441-Da451).  During [...]’s initial EEO interview on December 12, 2018, he denied inappropriate communications with [...] and denied sending text messages to her.  (Da58-Da59; Da457-Da461).  In a second interview on March 12, 2019, when confronted with a series of text messages he sent [...], [...] then admitted to sending them.  (Da59; Da462-Da466).  However, [...] denied discussing sexual preferences or calling [...] by any pet names.  (Da59-Da60; Da457-461; Da462-Da466).  [...] also consistently denied ever touching [...] or invading her personal space.  Ibid.  After [...] started its investigation, [...] met with CFS Defendants [...] and [...] on November 27, 2018, to discuss various issues with her performance.