ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The Judge of Compensation also took judicial notice of Executive Order No. 175, which states at page 3, wherein [...] declares:  “WHEREAS, the Department of Education has found that the reopening of schools for in-person instruction is critical in facilitating the social and emotional health of students and providing educators with ability to actively participate in student learning.  . . .”  [Executive Order 175, page 3, at Pa 5.] and further: “WHEREAS, NEW JERSEY’s schools serve a critical function for our State’s workforce in that they provide safe supervision of children during the day, allowing parents and guardians to work and move the economy forward.  . . .”  [Id. at Pa6.]  The Executive Order added that the prior Executive Orders closing New Jersey Schools were superseded and the schools were reopened for in-person instruction.  (Pa8 & 9).  Pursuant to those directives, Decedent returned to in-person instruction at Respondent’s public school as admitted by the parties; thereby, qualifying for New Jersey’s “essential worker” status as per the statute as the Judge of Workers’ Compensation properly found.  The Judge of Compensation also took judicial notice of the New Jersey Department of Health Covid 19 Vaccination Plan effective October 16, 2020 which declared “Critical Populations” that “Other essential workers in sectors which include, but not limited to” . . . “Education and Child Care Workers. ” (Pa53-54).  This plan prioritized the precious supplies of the Covid 19 vaccine to critical essential workers, which included teachers.  (Ibid.).  The Judge of Compensation further stated in her decision that “it’s important to take judicial notice of all of these things . . . ” (2T91:10 to 12).  D. DECEDE NT IS ALSO ENTITLED TO THE BENEFIT OF THE PRESUMPTION BASED UPON DEFINITIONAL SECTION 4 NJSA 34:15-31.11, Section 4 reads as follows:
[brief] The ALJ  This seems to encapsulate the State’s current view and it is reflected in the Final Decision—that the [...]’s role is to provide support to local school boards, and that it is the local boards which have ultimate responsibility for ensuring T&E.  It seems impossible to square that with the contrary view that the New Jersey Supreme Court announced in Robinson in 1973 and reiterated many times since in Abbott and other important T&E decisions.  If, as seems clearly to be the case, the denial of T&E in [...] is primarily a function of the less-than-optimal performance of [...], then trying to impose ultimate responsibility on the local district makes absolutely no sense.  Yet, that is what the Final Decision unmistakably seeks to do.
[brief] 14  [...] simply recounts the testimony of one witness in the case who explained his view that a purchaser of tax-foreclosed property must "review the filings in the foreclosure action" for regularity.  Id. at 534. that required by the *in rem* rules.  Not only was the notice of foreclosure served by simultaneous regular and certified mail (with signed green cards).  It was also personally served, along with the complaint, on two of the three Defendants, despite that personal service is not required for *in rem* actions.  *R.* 4:64-7(c).  [...] also would have seen that Plaintiff complied with the publication and posting requirements of *R.* 4:64-7(b) and -7(d), including posting of the foreclosure notice on the subject property.  [...] would have learned that Defendants were provided with notice of each and every notice of motion and order from beginning to end, including the motion seeking an abandonment order, at the addresses Defendants had already received process.  In short, if [...] had reviewed the docket prior to purchasing the property, it would have come to the very reasonable conclusion that Defendants had given up on the property.
[brief] [...] has never been to [...].  (4T119:1-2).  [...] had no personal knowledge as to what the property looked like when Plaintiff arrived, what snow removal efforts were made or not, how many people were out there, and what was done and what was not done.  (4T182:11-15).  Unlike his trial testimony, at his deposition, when [...] was shown photos depicting the conditions of [...]s when Plaintiff fell, [...] testified that what he saw in the photo was unacceptable but that he had a contract to follow that set out the terms of what he was and was not able to do, and that he felt held constrained in completely.  (Pa5-9).  [...], one of two owners of [...], testified at trial.
[brief] N.J.A.C. 7:15-1.5.  14  “Point source” is defined as “any discernible, confined, and discrete conveyance, including, but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel, or other floating craft, from which pollutants are or may be discharged. ”  N.J.A.C. 7:15-1.5.  15  Ra451 ([...] Division of Water Monitoring and Standards, Total Maximum Daily Loads, available at: https://www.nj.gov/dep/wms/bears/tmdls.html) (last visited 2/2/2024).  applicable regulations at N.J.A.C. 7:14A-1 to -25.10.  No [...] approval is part of the Permit issued by [...], and therefore issues involving TMDLs are inapplicable to this matter.  Moreover, Appellant’s position that water quality standards were not addressed at all is baseless.  As set forth above, the record contains substantial evidence that the [...] sufficiently considered water quality management of stormwater runoff pursuant to the Stormwater Management Rules and, as a result, adopted the numerous green stormwater management features.
[brief] Counter-statement of Procedural History ..................................................1  Counter-statement of Facts ...........................................................................1  Legal Argument Point I  Wade Hearing Not Necessary .....................................................................7  A. The Trial Court Did not Err in Denying a Wade Hearing ..............................................7  B.  Confidence Statement Was Harmless Error ................................................................9  Point II  The Trial Court Properly Admitted the Dying Declaration of the Victim .................................................................14  Point III  The Trial Court Did Not Err in Its Admission of Testimony (Partially Raised Below) ........................................................................................................19  Point IV The Prosecutor’s Summation Was Proper ............................................................23  Point V Cumulative Error Is Not Present .......................................................................29  Point VI The Trial Court Did Not Err in Jury Charges........................................31  Point VII Trial Court Did Not Err in Sentencing..................................................32  Conclusion.................................................................................................35
[brief] The Agreement does not adequately distinguish between arbitration and a judicial forum  As mentioned above, the drawing of a distinction between arbitration and a judicial forum is one of the central components of valid waivers of the right to jury trial.  Our case law is replete with strong examples, like Curtis v. Cellco Partnership, 413 N.J. Super. 26, 33-37 (App. Div. 2010), that walked the reader through certain key differences.  And others, like Drosos, that provided a contrasting set of rules from which these differences could at least be user-assembled.  [...]’s December 2021 agreement does not do either.  Importantly, the agreement never actually fairly posits arbitration as precluding litigation, rather than a distinct process.  While there is a thin description that claims “will be settled by binding individual arbitration between you and [...], and not in a court of law[,]” the agreement only ever uses verbs “settle” and “resolve” to describe what occurs at arbitration.  (Da81-82).  These words do not implicate the adversarial nature of litigation, particularly where arbitration is described as emanating out of mutually agreeable, “good-faith informal efforts to resolve disputes[.]” (Da86).  Thus, “court of law” does not signify “litigation” any more than it does a mere physical location.  (Da82).
[brief] The Appellant’s reading of the frivolous litigation statute N.J.S.A. §2A:15-59 is incorrect and does not indicate a burden of proof for bad faith.  The statute clearly states that the judge has the authority to make that determination on the basis of the pleadings and the record.  N.J.S.A. §2A:15-59(a) states that a party may be awarded all litigation costs “if the judge finds at any time during the proceedings or upon judgment that a complaint, counterclaim, cross-claim or defense of the nonprevailing person was frivolous. ”  §2A:15-59(b) states that “[i]n order to find that a complaint, counterclaim, cross-claim or defense of the nonprevailing party was frivolous, the judge shall find on the basis of the pleadings, discovery, or the evidence…”.  Nowhere in the statute does it state that a prevailing party has a burden to prove bad faith under this statute.  The language in the statute clearly gives the Court authority to make that determination at its discretion.
[brief] (Da189).  Specifically, the judge properly found that consecutive sentences were warranted because there shall be no free crimes and the crimes and their objectives were predominantly independent of each other.  Contrary to defendant's assertion on appeal, "every [...] factor" did not favor concurrent sentences.  (Db63).  Far from it.  The judge did not abuse his discretion in imposing the sentence, which he correctly determined was fair.  Accordingly, this court should affirm defendant's sentence.  CONCLUSION
[brief] Their offer was contingent upon removal of Defendants prior to purchase.  (278a)  [...] testified that:  But what was going on here, it’s quite simple.  We knew we could get $800,000 for the home.  [...] wanted and [...] -- [...] wanted to pay 555.  So, [...] said why don’t we go in and buy it for 655.  So, as a human being, knowing that we have an offer for 800, that’s a good investment, right?  It’s a good investment.  So, as a human being, that’s why I went in on this, because it’s a good investment.  Also, as a trustee that’s a hundred thousand more dollars for the trust.  So, that’s where my thinking was.  (7T 155-156)
[brief] Courts have found that mitigating factor eleven applies when incarceration would pose a hardship to a defendant’s children.  State v. Martinez, 370 N.J. Super. 49, 58 (App. Div. 2004) (“We are also satisfied that because of defendant’s sick young child, the family hardship of lengthy incarceration was also a legitimate mitigating factor. ”).  But children are not the only people who can be dependent.  The State recognized that [...] “would be the only considered dependent[.]” (6T 11-14 to 15)  Although the State asserted that her family was taking care of [...], there is no information in the record to support that assertion.  The trial court erred in dismissing the application of this mitigating factor without at least learning more about [...]’s care.
[brief] [...] explained that after the fatal neck wounds were inflicted, it would have taken somewhere “on the order of minutes” for [...] to exsanguinate.  (5T 148-15 to 24, 129-1 to 14)  However, [...] would have lost consciousness more quickly, “on the order of . . . seconds to minutes. ”  (5T 149-2 to 8)  He explained that once [...] lost consciousness, he would not have been talking or moving, and it would have been possible for a lay person to think [...] was dead.  (5T 150-11 to 21)  [...] further explained that, even when someone is in the process of dying and has already lost consciousness, they may still exhibit some involuntary movements or reflexes.  Thus, it is possible that someone’s foot or arm could “twitch” even though the person is unconscious and dying.  (5T 153-20 to 154-13)  [...] also testified about the results of the toxicological testing performed on [...].
[brief] # TABLE OF AUTHORITIES | Cases: | Page(s) | |----------------------------------------------------------------------|---------| | **Brody v. Albert Lifson & Sons,** | 3, 4, 5 | | 17 N.J. 383 (1955) | | | **Davin, LLC v. Daham,** | 7, 8 | | 329 N.J. Super. 54 (App. Div. 2000) | | | **De Rienzo v. Morristown Airport Corp.,** | 14 | | 28 N.J. 231 (1958) | | | **Gindin v. Baron,** | 14 | | 16 N.J. Super. 1 (App. Div. 1951) | | | **In re Trust Created By Agreement Dated December 20, 1961, ex rel. Johnson,** | 12 | | 194 N.J. 276 (2008) | | | **Lechler v. 303 Sunset Ave. Condominium Association, Inc.,** | 2 | | 452 N.J. Super. 574 (App. Div. 2017) | | | **Lee’s Hawaiian Islanders, Inc. v. Safety First Products, Inc.,** | 4 | | 195 N.J. Super. 493 (App. Div. 1984) | | | **Murphy v. Trapani,** | 12 | | 255 N.J. Super. 65 (App. Div. 1992) | | | **Pareja v. Princeton International Properties,** | 2, 3, 9 | | 246 N.J. 546 (2021) | | | **Polyard v. Terry,** | 4, 5 | | 160 N.J. Super. 497 (App. Div. 1978), aff’d, 79 N.J. 547 (1979), | | | modified on other grounds | | | **Ruvolo v. American Casualty Co.,** | 7 | | 39 N.J. 490 (1963)
[directive] When dealing with an individual who poses a threat to the officer, the individual could be considered either a threatening assailant or an active assailant.  To determine the individual’s status for appropriate officer response, the officer must assess whether the threat poses an 7 USE OF FORCE POLICY | April 2022 imminent danger.  If the threat is imminent, then that individual is considered an active assailant and all use of force options are available with deadly force being an absolute last resort in accordance with Core Principle Four of this Policy.
[brief] “[T]he party seeking to be awarded attorneys’ fees ordinarily bears the burden of proving that they are reasonable. ”  Green v. Morgan Properties, 215 N.J. 431, 455 (2013).  But Plaintiffs did not prove that investigative work on future RICO claims was conducted before September 2009.  The Special Master made no specific findings about particular RICO time entries, instead characterizing all the work before the RICO claims were filed as compensable.  This included the work performed by [...]’s counsel in preparation for trial on the valuation of [...]’s 25% partnership interest, when there were no RICO claims in the case.  [...] did not communicate to any party or the trial court, in 2007, 2008, or through September 2009, that RICO claims would arise.  The Special Master and the trial court should have applied the standard set forth by this Court in its 2018 decision: that “there was no common core of operative facts” and that compensable work must be limited to that which was “reasonably devoted to plaintiffs’ pursuit of their respective RICO claims.
[directive] Each agency shall ensure that officers assigned to the internal affairs function complete training as mandated by the Division of Criminal Justice.  (q)  Each County Prosecutor shall ensure that each agency within the Prosecutor’s jurisdiction implement and maintain a system of ensuring appropriate training for all personnel involved in the agency’s internal affairs function.  (r)  The Division of Criminal Justice shall conduct periodic “train-the-trainer” courses for all persons assigned responsibility for internal affairs training within the County Prosecutor’s Offices.
[brief] 9T133:3-11.  Similarly, he did not review or consider [...]’ affidavit in which the accountant stated that, based upon his years of experience doing accounting work for [...] and [...], “[...] and [...] were aware and approved of all significant financial transactions that are reflected on [...] and [...]’s financial books and records each year, including intercompany transfers and loans, shareholder/member loans and expenses processed and reimbursed. ”
[brief] The power to reconsider an interlocutory order rests within the “sound discretion” of the trial court “in the interest of justice. ”  R. 4:42-2; Lawson, 468 N.J. Super. At 134.  Under this “more liberal” standard, (Lawson, 468 N.J. Super at 134), a trial judge has the power to reconsider an interlocutory order “where the judge believes it would be just to do so” or “where . . . the judge later sees or hears something that convinces him that a prior ruling is not consonant with the interest of justice. ”  Lombardi v. Masso, 207 N.J. 517, 536-37 (2011).  The “interest of justice” standard does not, as plaintiff incorrectly argues (Pb17-18), require a trial judge to determine that a prior interlocutory order was “arbitrary, capricious, or unreasonable” before the court can reconsider it.  Lawson, 468 N.J. Super. at 136 (“There is nothing in our jurisprudence to suggest reconsideration of an interlocutory order is prohibited . . . unless the prior judge acted in an ‘arbitrary, capricious or unreasonable’ manner. ”).  Nor does the standard require “a showing the challenged order was ‘palpably incorrect,’ ‘irrational,’ or based on a misapprehension or overlooking of significant material presented on the earlier application. ”  See id. at 134.  Where, like here, the prior order is erroneous or “has ceased to promote a fair and efficient processing” of the case, it can and should be reconsidered under R. 4:42-2.  --- 17
[brief] The transcripts of the proceedings below are referred to herein as:  - September 30, 2020 – “1T” - November 19, 2020 – “2T” - January 20, 2021 – “3T” - April 7, 2021 – “4T” - May 20, 2021 – “5T” - June 2, 2021 – “6T” - July 7, 2021 – “7T” - October 27, 2022  Trial Transcript – “8T” elderly, and challenged the Township’s ordinances.  The case was subsequently consolidated by consent with a similar action filed by [...], the contract purchaser of the property in question that had contracted to sell the property to [...].  [Da186, Da273].  The Law Division set a briefing and trial schedule [Da277], and conducted a bench trial on the prerogative writ counts of the complaints on October 27, 2022 (“8T”).  The court reversed the Board’s denial of [...]’s application on December 23, 2022 and remanded the application back to the Board for the imposition of conditions.
[brief] ”  Citations to “Pa” refer to the Plaintiffs/Appellants’ Amended Appendix.  Citations to Defendants/Respondents’ Appendix, attached hereto, are designated as “Da. ”  “Point 1: Did the trial court err in finding the adoption of Ordinance No. 2022-17 was not arbitrary and capricious?  “Point 2: Was there sufficient credible evidence in the record to support Ordinance No. 2011-17 (sic)?  “Point 3: Did the trial court err in finding a redevelopment plan for an area in need of rehabilitation does not need to contain a rehabilitative component? ”  Plaintiffs did not change these in their Amended Notice of Appeal filed July 10, 2023.
[brief] Within the week following the homicide, [...] was twice shown photographic arrays but was unable to identify [...].  [...] identified someone other than [...] in one of the arrays, though he told a detective that he would prefer to see the suspects in person, because he did not think the pictures were clear enough for him to be certain of the identification.  [...] was not shown a photo array.  During [...]'s trial testimony, [...]'s counsel objected to [...] identifying [...] in court.  In response, the court conducted a Wade\(^7\) hearing.  [...] testified at the hearing that he had ample opportunity to observe [...] on the night of the homicide.  [...] saw [...]'s face when he initially woke up, at which time [...] was holding the gun.  [...] was approximately three feet away, and the room was lit.  Although [...] turned away when [...] told him not to look, he was later able to partially remove the duct tape from his eyes and watch [...] “from the time [...] came inside the hotel room to the time that he fell to the floor. ”  [...] was also able to observe [...]'s face for “seconds” when [...] chased [...] after she left the hotel room.  [...] testified that he was one hundred percent certain of his ability to identify the perpetrator.  Based on [...]'s testimony, the court permitted [...] to identify [...] in front of the jury.
[brief] [...] was a Senior Medical Security Officer for [...].  (Aa30-Aa32).  He worked first shift but on a regular basis would work overtime.  He was in charge of 25 patients on his unit and testified that the job description was inclusive of the majority of his responsibilities throughout his shift.  (1T9:9-14).  On February 23, 2017, a stat call came in through the loud speaker system in the facility.  This meant that a patient was out of control.  (1T9:20-25).  [...] testified that the procedure would be to get three or four officers to get the patient to the bed and in a net restraint.  (1T10:1-15).  [...] testified that the announcements and calls were something he was familiar with as he had been involved in situations like this before but had never injured his left shoulder.  [...] testified that this incident, however, was different based on the extreme combative nature of the patient.  He testified it was like a wrestling match.  (1T12:20-25).  He also testified that the situation took about 15 to 20 minutes to resolve which is longer than normal.  (1T14:8-13).  While attempting to restrain his legs he got kicked sustaining an injury to his left shoulder.  Prior to receiving any medical attention, he completed an incident report.  (Aa33-Aa36); (1T16:5-14).  The description in the incident report (Aa33-Aa36) was exactly as [...] had testified indicating that he was injured while restraining a patient putting him into a net restraint.  (1T26:3-23).  Further, on March 1, 2017, [...] was seen at [...] which stated [...] sustained an impact injury to his left shoulder.  This mirrored his testimony getting kicked and supports the records in evidence.  (Aa33-Aa36); (1T30:1-10).  Respondent, during cross examination, attempted to distinguish being assaulted from restraining a patient.  [...] testified he was kicked by the patient; that constitutes assault.  The medical records noted his injury as being an impact injury which is consistent with his testimony.  He testified that in his mind there is no distinction between being assaulted and restraining in this incident as it is exactly what occurred.  (1T35:3-9).  The question is whether this assault by this combative patient satisfies the definition of what constitutes an undersigned or unexpected event.  [...] testified that despite being trained, having restrained many a patient in the past and following facility protocol he was assaulted by this highly combative patient which constitutes an unexpected happening resulting in his injury to his left shoulder.  **STANDARD OF REVIEW**
[brief] Here, although zoned R-20A, the Property is not an island located within a sea of conforming single-family homes.  Instead, there are homes abutting only on the south side of the Property.  To the west is a large townhome development.  To the north is a bus depot, and further north is the municipal complex, and to the east is a high-speed, highly-trafficked county road.  [3T at 83-18 to 83-25].  The approval of the project would not undermine the integrity of the neighborhood – like it would have in *Salt & Light* – because the existing land use pattern is anything but consistent.
[brief] ”  (Da1998)  He had issued “sham membership interests in the [C]ompany,” and asked the recipient employees “to endorse blank signature pages which they believe were [then] used as part of the February 8th election....”  (Da2003)  Thus, “[t]he moment the pen strikes the order the stay is removed,” and “[w]e have an emergency meeting. ”  (Da2001)  But [...] “honored” the transition.  Second, the same day: Mr. [...] Conway and his associates, including [...] took the company’s computer... servers critical to the operation of the... company, which forced the Court to enter another order on February 8th that required [...] and his associates to return the servers and any other company equipment to the... company’s premises immediately.