ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] VOLUME II  Affidavit of [...].........................................................Pa72  Affidavit of [...]...........................................................................Pa74  Affidavit of [...]........................................................................Pa76 Affidavit of [...].......................................................................Pa78 Affidavit of [...]...............................................................................Pa80 Affidavit of [...]..........................................................................Pa82 New Jersey State Police Incident Exposure Report.................................Pa84 Affidavit of [...]......................................................................Pa88 Affidavit of [...].....................................................................Pa90 Affidavit of [...].....................................................................Pa93 Affidavit of [...]..........................................................................Pa95 Affidavit of [...]......................................................................Pa97 Affidavit of [...].......................................................................Pa99 Affidavit of [...]..........................................................................Pa101 Affidavit of [...]........................................................................Pa103 Affidavit of [...]............................................................................Pa105 Affidavit of [...].........................................................................Pa107 TABLE OF JUDGMENTS, ORDERS, AND RULINGS [...] Final Decision 11/29/23……………………………Pa9 [...] Initial Decision 7/26/23…………………………..Pa24 PROCEDURAL HISTORY On or about July 8, 2019, the Bill Ricci Rescue, Recovery, and Cleanup Operations Act (hereinafter referred to as the “Ricci Act”) was signed into law.
[directive] There simply is no issue for a court to decide with respect to a defendant’s subjective intent.  State v. Widmaier, 157 N.J. at 498.  Finally, a “conditional or ambiguous response to a police officer's final demand to submit to the [B]reathalyzer test constitutes a violation of the refusal statute whether or not the suspect intended to refuse to take the test. ”  Ibid.  In situations where the defendant does not respond, or gives a vague or inconclusive response, or requests to speak with an attorney before providing breath samples, the officer is then required to read an additional paragraph on the Standard Statement informing the defendant that he/she must respond and does not have a right to speak to an attorney.
[brief] Appx., at 7a-10a.  Appellant did not allege the letter vendor or one of its employees misused his personal or financial information, or transferred it to someone else, or that the transfer of his data resulted in an actual theft of his identity.  *Id.*  He did not even allege that any individual at the vendor (or elsewhere) ever personally viewed the information, as opposed to the vendor entity electronically assimilating the information into letters and then printing and mailing those letters via automated processes.  *Id.*  *See Elshabba v. [...],* Case No. [...] (N.J. Sup. Ct. April 26, 2023) ("Elshabba Transcript"), at T8-9, (finding no standing for letter vendor theory of liability).
[brief] B.  This first-filed action should not have been dismissed because this dispute will be more efficiently resolved in this action rather than in the second-filed Missouri Action  This action is certain to conclude long before Defendants’ second-filed action in Missouri, and therefore is a more efficient vehicle to resolve the dispute.  First, the Missouri courts have been exceedingly slow to act.  [...] filed a pre-answer motion to dismiss [...]’s second-filed action in 2017, which was not decided for nearly five years – including over two years after oral argument.  (Pa527).  That motion was then denied in October 2022 without written opinion or explanation, contrary to controlling Missouri authority that the trial courts should defer to this first-filed action in New Jersey.\(^9\) (Id.).  Principles of comity are based on mutual cooperation among the states so that rules are applied universally and each state is placed on an equal playing field.  *Sensient Colors*, 193 N.J. at 397-98.  Because the Missouri court declined to recognize New Jersey’s dominant interests in this first-filed action, [...] correctly exercised his discretion in denying dismissal of \(^9\) [...] had no right to an interlocutory appeal, but has preserved its right to appeal that decision.  this first-filed action.\textsuperscript{10}
[brief] The Appendix page numbers for this brief are in red ink to distinguish it from some of those submission that contain page numbered appendixes or exhibits. or about September 7, 2022.  The case was docketed as [...] on October 17, 2022.  (Somerset Docket Sheet).  On November 29, 2022, the State of New Jersey and its Defendant employees, [...], [...], and [...] moved to dismiss the remaining State claims alleged against them in Appellant’s complaint.  On February 15, 2023 (filed on February 16, 2023), the trial court granted the State’s motion to dismiss the remaining State claims with prejudice.  On March 2, 2023, Appellant moved for reconsideration, see Aa279, and on April 14, 2023 the trial court denied Appellant’s motion for reconsideration.
[brief] **STATEMENT OF MATERIAL FACTS**  During the pendency of its appeal, the Board is complying with [...]’s Order.  (Board’s Br. at 8, and 32, n.6.)  Since the Commission issued its Order and to date, it has received no filings from the Board asserting any challenges in connection with the Association’s use of its Bargaining Council during the parties’ current negotiations, pertaining to good-faith allegations of conflict of interest or ill-will, breach of confidentiality, or concerns over safety and security.  --- 2/  These provisions prohibit public employers, their representatives or agents from:  “(1) Interfering with, restraining or coercing employees in the exercise of the rights guaranteed to them by this act . . . [and] (5) Refusing to negotiate in good faith with a majority representative of employees in an appropriate unit concerning terms and conditions of employment of employees in that unit, or refusing to process grievances presented by the majority representative.
[brief] The reason that Plaintiffs failed as a matter of law to satisfy the special reasons positive criteria for height variances through an assertion of hardship are detailed below under heading III.  The reason that Plaintiffs’ core argument or changed market conditions also fails to satisfy the special reasons for a height variance on grounds other than hardship is detailed under heading IV.  Key testimony of the Plaintiffs’ Traffic Engineer in support of both the positive and negative height variance criteria was found by the Board to be inadequate for reasons fully explained in the Board’s denial Resolution and discussed below under heading V. Ja0029-034.
[directive] 6.  [예/Yes]  [아니요/No]  그렇게 할 수 있는 기회를 갖고 싶으십니까?  Would you like the opportunity to do so?  7.  [예/Yes]  [아니요/No]  귀하는 법원 감독 마약 치료 프로그램(“마약 법정”)에 참가하기 위한 목적으로, 법원이 의무적 특별 보호관찰 기간을 선고할 수도 있다는 조언을 받았으며, 여전히 유죄 시인하기를 원하십니까?  Having been advised that the court may be required to impose a mandatory period of special probation for the purpose of participating in a court-supervised drug treatment program (“Drug Court”), do you still wish to plead guilty?
[brief] THE TRIAL COURT IMPROPERLY ENFORCED THE ARBITRATION CLAUSE WITHOUT CONDUCTING THE REQUIRED HEARING (1T26:20-29:17).  The trial court erred in its unequivocal determination that [...] signed the Agreement on behalf of both himself and his son.  This conclusion improperly disregarded the [...]' well-supported arguments, including evidence that [...] was unaware he was signing on behalf of his son, as well as whether he was afforded adequate and reasonable time to review the Agreement.  These unresolved factual disputes cannot be adequately addressed through motion practice alone.  At a minimum, the trial court should have ordered a factual hearing to examine these critical issues.  Arbitrability, which is whether valid, mutual agreement to arbitrate was reached, requires consideration of the context and circumstances of the purported agreement and its terms.  Nowhere in the Respondents’ motions did they substantiate any affirmative agreement with the [...] that would bind them to arbitration, especially considering the circumstances surrounding the signing of the Agreement.  As indicated above, the New Jersey Arbitration Act mandates this Court, not an arbitrator, decide whether an agreement to arbitrate exists and that the controversy is subject to an agreement to arbitrate.
[brief] The positive criteria are set forth in N.J.S.A. 40:55D-70(d)(1), which authorizes a zoning board, “[i]n particular cases for special reasons, [to] grant a variance to allow departure from regulations pursuant to . . . [the Municipal Land Use Law] to permit . . . a use or principal structure in a district restricted against such use or principal structure. ”  While the term “special reasons” is not defined in N.J.S.A. 40:55D-70(d)(1), “special reasons” are those that “promote the general purposes of zoning, enumerated in N.J.S.A. 40:55D-2. ”  Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 380 (1990).  Those purposes include the promotion of adequate light, air and open space, the creation of a desirable visual environment through creative development techniques and good civic design and arrangement, the encouragement of transportation routes that will promote the free flow of traffic, and the promotion of public health, safety, morals, and general welfare.  See N.J.S.A. 40:55D-2.  One court has stated that special reasons exist whenever a variance proposes to secure any of the statutory zoning goals.  See Yahnel v. Board of Adjustment of Jamesburg, 79 N.J. Super. 509, 517 (App. Div.), certif. denied, 41 N.J. 116 (1963).  To show the positive criteria, an applicant must show that: “a proposed use is inherently beneficial, that the property owner would suffer an undue hardship by using the property as a permitted use, or that the proposed site is particularly suitable for the proposed use.
[brief] ACTING  ATTORNEY GENERAL OF NEW JERSEY  By: /s/[...]  [...]  Deputy Attorney General  [...]  P: [...]  F: [...]  [...]  Assistant Attorney General Of Counsel  [...], Petitioner-Appellant, v. [...], [...], [...], individually and in his official capacity, [...], individually and in his official capacity, [...], individually and in her official capacity, [...], individually and in her official capacity, [...], [...], and [...], as an interested party, and [...], as an interested party, Respondents.
[brief] ’”  [(Da0825)  Emphasis in original.]  [...]’s citation to Burbank v. BMW of N. Am., LLC, 2022 WL 833608, at *9 (D.N.J. Mar. 21, 2022) implies that [...] is relying solely on the recall as evidence of the defect.  As set forth hereinabove, Plaintiff has a multitude of evidence that substantiates the manufacturing defect in the subject applicator.  III.
[brief] [...] acquired title for $140,000 to the Property foreclosed by [...] thirty-five (35) days after Final Judgment.  [...]’s Quit Claim Deed (351a-354a), makes notice to [...] specific, referring to the pendency of the Foreclosure Action – “**BEING THE SAME** land and premises acquired by [...], by Final Judgment entered by the Superior Court of New Jersey, Chancery Division, on November 7, 29022, at Docket Number [...]. ”  [...] was thus specifically apprised of the fact that [...] held title by a tax lien foreclosure, and also that [...] had only held title for thirty-five (35) days.  [...] accepted a quit claim deed which offered [...] no warranties but only conveyed such interest as [...] held.  [...] thus had specific knowledge of the recency of the foreclosure.  Not only this, but [...] and its principal [...] were represented by the [...] along with [...].  This relationship is sufficient to charge [...] with an intimate knowledge of the issues associated with the foreclosure, not just a passing knowledge.  B.
[brief] Its elimination of that language appears to speak to a conscious intention to abrogate the former rule that proof of mailing alone would be sufficient, and that the issue of actual receipt would be irrelevant.  In *Celino*, supra, the court recognized that the revision of the statute raised this very issue.  However, because the insurance company had so definitively failed to comply with the statute, the court chose not to decide the issue:  >  We need not address the question of whether a proof of mailing which meets both conditions of the statute can be regarded as conclusive proof of mailing in terms.  We are certain, however, that the statute, by its express terms, denies effectiveness to a proof of mailing which does not meet both conditions and, as a quid pro quo accords at the very least a strong presumption of effectiveness to a proof of mailing which does comply.  211 N.J. Super. at 543.  In 1992, in *Hodges*, a panel of the Appellate Division finally did address the question, and decided it in favor of the insurance industry, stating:
[brief] Plaintiff does not meaningfully attempt to defend the Trial Court’s specific jurisdiction ruling, which neither acknowledged nor applied the applicable legal standard.  Plaintiff has done the same.  Nonetheless, as detailed in Defendants’ opening brief, Plaintiff did not and cannot meet its burden of showing that either Defendant is subject to specific jurisdiction in New Jersey.  Specific jurisdiction is appropriate only where a plaintiff’s “cause of action arises directly out of a defendant’s contacts with the forum state. ”  Waste Mgmt., Inc. v. Admiral Ins. Co., 138 N.J. 106, 119 (1994).  The alleged conduct that forms the basis for Plaintiff’s claim simply has no nexus to any of Defendants’ contacts with New Jersey,\(^4\) let alone the direct relationship required to warrant an exercise of specific jurisdiction.  See id.  The purported contacts to which Plaintiff points are precisely the type of Plaintiff-initiated, Plaintiff-focused contacts that this Court has rejected as insufficient to confer specific jurisdiction, as the citations following each make clear.  First, [...] directing the engagement letter and invoices to Plaintiff’s \(^4\) Plaintiff should be estopped from claiming otherwise.  In the Pennsylvania action, Plaintiff argued that “every action relevant to this dispute took place in Pennsylvania,” Da251, 255—directly contrary to its position here.  That the Pennsylvania court ruled against Plaintiff does not bar application of estoppel.  See Cummings v. Bahr, 295 N.J. Super. 374, 385–88 (App. Div. 1996); Db25. New Jersey address, Pb19–20, as instructed by Plaintiff’s CEO (a Virginia resident), Da148, 180.
[brief] This opinion clearly states that an elected but not yet seated member of a board of education is subject to the School Ethics Act.  However, in the July 26, 2022 Commission decision now being appealed the Commission narrowed its own jurisdiction from its prior opinion, abruptly and without notice, stating:  Finally, in Count 5 of the Complaint, Complainants argue that on December 5, 2021, which was after Respondent was elected to serve on the Board, but, importantly, prior to the time she was sworn-in as a member of the Board, Respondent posted or shared an image on her public Facebook page (which she used to campaign for her seat on the Board), and the content of that posting/image violated N.J.S.A. 18A:12-24.1(e).
[brief] Originally, inconsistent verdicts were accepted mostly based on the idea that they would be permitted if “separate indictments had been presented” and separate verdicts reached.  *Dunn v. United States*, 284 U.S. 390, 393 (1932).  That justification, however, was later discarded and replaced by a focus on (1) the impossibility of knowing the jury’s reasoning, including whether it acted out of mistake, compromise, or lenity; and (2) the government’s inability to appeal.  United States v. Powell, 469 U.S. 57, 64-69 (1984).  Our courts have primarily focused on the first justification, while also noting that courts have no “power to prevent” factually inconsistent verdicts.
[brief] 45  # TABLE OF AUTHORITIES  ## CASES | Case | Page | |----------------------------------------------------------------------|------| | Bd. of Educ. of Alpha v. Alpha Educ. Ass’n, 190 N.J. 34 (2006) | 25 | | Beaird Indus., Inc. v. Local 2297, Int’l Union, 404 F.3d 942 (5th Cir.2005) | 29 | | Borough of Carteret v. Firefighters Mut. Benevolent Ass’n, Loc. 67, 247 N.J. 202 (2021) | 27 | | Borough of E. Rutherford v. E. Rutherford PBA Loc. 275, 213 N.J. 190 (2013) | 27 | | Bound Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4 (2017) | 24, 27, 39 | | City Ass’n of Supervisors & Adm’rs v. State Operated Sch. Dist. Of Newark, 311 N.J. Super. 300 (App. Div. 1998) | 29, 32, 40 | | Commc’ns Workers of Am., Local 1087 v. Monmouth Cty. Bd. of Soc. Servs., 96 N.J. 442 (1984) | 32 | | Cty. Coll. of Morris Staff Ass’n v. Cty. Coll. of Morris, 100 N.J. 383 (1985) | 33, 34, 35, 36, 37, 44 | | Goffe v. Foulke Mgmt. Corp., 238 N.J. 191 (2019) | 24 | | In re City of Camden, 429 N.J. Super. 309 (App. Div. 2013) | 26, 39 | | Kieffer v. Best Buy, 205 N.J. 213 (2011) | 24 | | Kocanowski v. Twp. of Bridgewater, 237 N.J. 3 (2019) | 24 | | Linden Bd. of Educ. v. Linden Educ.
[brief] In the emails that the [...] can verify, petitioners provided the [...] with only non-confidential documents.  Those emails do not discuss strategy of any sort.  The lower court noted that an email reflected the [...]'s advice, apparently in response to petitioners' concern about the timeliness of filing a complaint seeking to set aside probate, and that non-probate assets might not be subject to the 4-month limitation of R. 4:85-1.  There are also indications the [...] suggested petitioners attempt to enlist potential foreign challengers, to extend the contestability period for an additional 2 months.  That free legal advice is not harmful.
[brief] So when it comes to Nine, deterrence in both a specific and general sense is extremely high.  How many young people are gonna shoot somebody in the street this year?  I think we had one over the weekend[,] right?  This is not an unknown event, particularly here in [...].  So when you talk about deterrence, I don’t know.  Is there anything greater than substantial—is there any higher level of that?  I don’t know.  But if there is, I’m opting for that.  [(8T 81-23 to 82-6)]  In relying heavily on the fact that [...] was convicted of committing manslaughter with a gun and focusing on the need to deter other young people, the Sentencing Court made three errors: (1) it double-counted the weapon that was the cause of death, a necessary element of the offense of manslaughter; (2) it engaged in impermissible speculation that individuals who have pointed a gun at another person and pulled a trigger likely to reoffend without any basis in competent evidence; and (3) it relied exclusively on general deterrence without finding any need for specific deterrence.
[brief] Da28 (noting that "[...]’s trial testimony was completely contradicted by his deposition testimony when he claimed the only amount still due to [...] was the non-interest bearing $50,000 second loan”). abuse its discretion in finding that [...]’ Discharge of the Mortgage did not constitute a discharge of Defendants’ underlying debt.  On the day of the Closing, [...] surprised [...] by representing to him that his ability to close his refinancing transaction was dependent not only on [...] accepting a partial payment at that time, but also on [...]’ willingness to discharge the Mortgage.
[brief] ²  The following abbreviations will be used:  Sb – State’s Response Brief  Db – Defendant-Appellant’s Initial Brief Dra – Defendant’s Reply Appendix 4T – October 17, 2019 (Second Motion to Suppress/Preclude Identifications)  8T – September 15, 2021 (Trial)  However, if this Court deems the present record insufficient to make that determination, this Court should remand for the trial court to hold a testimonial hearing to determine whether [...]’s level of familiarity was sufficient under Watson to permit an in-court identification.
[brief] (Pa. 278-279.)  [T]he only hearing required before adoption of a redevelopment plan, as with any other municipal ordinance, is a legislative hearing before the governing body.  See N.J.S.A. 40:49–2(b).  Consequently, if an action is brought challenging a redevelopment plan, there ordinarily is no administrative record other than whatever report the planning board may have submitted to the governing body and a transcript of the quasi-legislative hearing before the governing body.  Thus, plaintiff’s challenge to the validity of the redevelopment plan, specifically the rezoning of the property he has contracted to purchase, is governed by the same procedures that would govern any other challenge to the validity of a municipal ordinance.
[brief] In addition, [...]’s attorney [...] was scheduled to be married in mid-November, Pa139.  By the date of Board counsel’s scheduled departure date of October 20, the Resolution had not been resolved and [...] had yet to provide any comments to the proposed Amendment to the Settlement Agreement. \(^8\)  By email dated November 2, while Board Counsel was still away, [...] counsel sent email demanding the Bord ‘move the resolution’ at is public hearing of November 14, 2022, Pa263.  By letter dated November --- \(^8\)  Ultimately, [...] never provided any comments to the proposed Amendment to Settlement Agreement and/or proposed amended zoning ordinance.  21, 2022, [...] issued its ‘Notice of Default’ to the Board demanding the Board move the resolution at its meeting of November 28, 2022, Pa264.  Board counsel responded by way of letter dated November 23, 2022, Pa267, which, inter alia, rejected the Notice of Default as premature, set forth a detailed case history, recited that counsel had all agreed that the Resolution and the Amendment to the Settlement Agreement would be presented to the Board simultaneously, and advised that the Board had yet to receive any comments to the proposed Amendment to Settlement Agreement that was sent to [...] on August 7, 2022 (Pa172).  Further discussion did not resolve the issues, [...] did not provide comments or consent to the proposed Amendment to Settlement Agreement, insisted that the Board move a form of resolution in December, [...] objected to holding off on the Resolution until the proposed Amendment was resolved and insisted that the Resolution be presented without reference to the proposed Amendment and/or inclusion of provision for an elevator in Building E.
[brief] C.  The arbitrator has sole authority to determine the enforceability of the arbitration agreement.  The trial court also erred by denying [...]’s motion even though the parties’ contract expressly delegated to the arbitrator, “and not any … court,” the “exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement.  (Da84.)  Federal law required that Plaintiffs’ challenge to the enforceability of the arbitration agreement under Atalese should have been resolved by the arbitrator alone, not the trial court.  1.