ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[directive] (d) a fleeing suspect, if clear and convincing evidence exists to believe the suspect has committed a crime in which the suspect caused or attempted to cause death or serious bodily injury.  3.7.2  Officers shall reevaluate the situation and reassess the need to use force before any second or subsequent firing or discharge or utilization of drive stun mode of the device against the same person.  Any second or subsequent firing or discharge or utilization of drive stun mode of the device must be necessary and justified by the circumstances at that moment.  3.7.3  CEDs shall not be utilized in the following manner: (a) against a person in drive stun mode more than twice unless deadly force would be authorized and permitted pursuant to this Policy; (b) against a handcuffed subject unless deadly force would be authorized and permitted pursuant to this Policy; (c) against the operator of a moving vehicle unless deadly force would be authorized and permitted pursuant to this Policy; (d) to prevent a subject from damaging property; or (e) against a person simultaneously with two or more CEDs.  3.7.4  CEDs must be capable of making a digital recording of the encounter each time the device is utilized, unless the officer carrying the CED is equipped with a body worn camera (BWC), as that term is defined in the BWC Policy issued by the Attorney General.  The officer shall activate the BWC prior to utilization of the CED, unless exigent circumstances make it unsafe or not feasible for the officer to do so.  3.7.5  CED spark displays shall be considered constructive authority, but must be reported as a Show of Force in the Attorney General’s Use of Force Reporting Portal.  3.7.6  Police administrators and officers authorized to utilize CEDs and other authorized less- lethal devices and ammunition are also required to adhere to the instructions contained in Addendum A to this Policy.  3.8
[brief] [...] testified that at about 5 a.m. on March 9, 2013, defendant and his father, [...], walked into the [...].  (1T 86-21 to 88-12)  Defendant had blood on his face and elsewhere and, according to [...], he “looked extremely cold, and almost like he was in some sort of state of shock or something. ”  (1T 88-17 to 20)  Defendant “was eventually taken to the hospital,” but first defendant told [...] that he had “met a man online” and had gone to the man’s house, where they had consensual sex.  (1T 89-24 to 91-4)  But then after they had drinks and watched a movie, the man wanted to have sex again, but defendant refused.  (1T 91-4 to 7; 1T 106-13 to 112-16)  [...] claimed defendant told him that “they had some sort of fight or altercation after that” but [...] alleged that defendant said nothing about getting attacked with a knife or stabbing anyone.  (1T 91-7 to 17)  [...] claimed that he saw no injuries on defendant that would account for the amount of blood on him.  (1T 95-5 to 11)  [...] testified that it was “very cold” that night and that, while defendant wore a sweatshirt at the time he walked into the police station, defendant’s father said that defendant had been shirtless outside in the cold and that the father had given him that sweatshirt to wear before they went to the police station.  (1T 100-21 to 101-6)  It did not look to [...] like defendant had tried to clean up either himself or his clothing.  (1T 100-3 to 20)  [...] claimed that at the hospital defendant told a nurse, “I had a knife.  I think I might have stabbed him. ”  (1T [...] testified that, at the hospital, defendant had a “large amount of blood covering his, you know, a good portion of his face, his hands, and his feet. ”  (2T 103-15 to 16)  [...] saw no injuries on defendant “that would equate to that amount of blood” (2T 107-17 to 22), but he admitted that defendant had incised wounds on his hands that could have come from a knife (i.e., defensive wounds) (2T 189-1 to 24), and that defendant also had “big scratches” on his back that looked “fresh. ”  (2T 190-3 to 14)  Yet, [...] admitted, no effort was made to test for DNA under [...]’s fingernails to see if it matched defendant.  (2T 191-10 to 14)  [...] also agreed that defendant appeared to cooperate in the police investigation, consenting to a search of his bedroom at his home and to photos at the hospital.  (2T 182-17 to 183-15)  Defense counsel, in cross-examination, also stressed the many bloodstains in many different places in Demko’s apartment -- to demonstrate the extent of the struggle that went on -- and the fact that the police never swabbed many of them for DNA.  (2T 187-14 to 188-13; 2T 191-17 to 194-19)  [...] also admitted that none of the knives in the kitchen contained defendant’s fingerprints.  (2T 199-1 to 24)
[brief] TABLE OF APPENDIX  Civil Case Information Statement.........................................................1a  Plaintiff’s Complaint, filed August 8, 2023..............................................2a  Discovery Demands Served with Plaintiff’s Complaint.............................11a  Answer of Defendants, filed November 17, 2023....................................16a Proof of Service of Defendants’ Answer...............................................26a Defendants’ Notice of Motion for Dismissal of Plaintiff’s Complaint, filed April 12, 2024..................................................................................27a Defendants’ Proposed Order for Dismissal of Plaintiff’s Complaint...........29a Certification of Defendants’ Counsel in Support of Defendants’ Motion for Dismissal..............................................................................31a Proof of Filing/Mailing of Defendants’ Motion for Dismissal...................34a *Exhibit A to Defendants’ Motion for Dismissal (Defendants’ Answer).............................................................................16a Plaintiff’s Notice of Motion for Dismissal of Defendants’ Answer, filed April 15, 2024..................................................................................36a Certification of Service of Plaintiff’s Motion for Dismissal of Defendants’ Answer..............................................................................38a Proof of Mailing of Plaintiff’s Motion for Dismissal of Defendant’s Answer..............................................................................39a Certification of Plaintiff’s Counsel in Support of Plaintiff’s Motion for Dismissal..............................................................................41a Affidavit of [...], regarding Discovery Requests........44a Certification of Plaintiff’s Counsel in Support of Plaintiff’s Opposition to Defendant’s Motion to Dismiss……………………………………74a
[brief] No witness for the NJDOT testified that he or she called [...] three times a day during the “Reactionary Mode. ”  In fact, [...] received one (1) phone call from [...] on April 17, 2020, which is after the relevant dates pertaining to the reason to fire [...] (T. P. 18, L7-18).  [...] confirmed what [...] said about being at work in an emergency “till the cows come home. ”  [...] had the voice mail from [...] (T. P. 41, L3-22).  NJDOT called [...] as a witness.
[brief] [...] Has Not Alleged How the Exclusions Relied on by [...] are Ambiguous and Therefore He Has Waived Its Ambiguity Claim  [...] contends that the exclusions relied upon by [...] are ambiguous.  What is conspicuously lacking from the ambiguity section is any argument supporting the conclusion that the exclusions were ambiguous.  Instead, [...] states the general rules regarding inspecting policies for ambiguity, concludes without analysis that the exclusions are ambiguous, and then cites to the exclusionary language.  (Db, pp. 17-18).  [...] simply did not brief this issue.  “Briefing an issue requires more than a mere mention. ”  Khawaja v. Butt, No. A-2828-20, 2022 N.J. Super. Unpub. LEXIS 51, at *11 (App. Div. Jan. 14, 2022) (quoting Telebright Corp. v. Dir., N.J. Div. of Tax’n, 424 N.J. Super. 384, 393 (App. Div. 2012) (deeming an issue waived when the brief included only “one sentence in the conclusion section” with respect to the issue)).  To avoid waiver, a plaintiff must assert a position on an issue and present “arguments in support of its contention. ”  Telebright, 424 N.J. Super. at 393.  Even reading the brief as indulgently as possible, the reader can discern no argument from [...] that explains why the exclusions are potentially ambiguous.  [...] is not going to take it upon itself to conjure some kind of potential ambiguity and then refute it.  Under New Jersey law, [...] has not done enough to preserve the ambiguity argument and this Court should find it waived.
[brief] Until relatively recently, the issue of whether a riparian grant passes automatically with the uplands was unsettled.  As recently as 2005, the Appellate Division held that that granted riparian land would be automatically conveyed with the adjoining uplands parcel even though it was not specifically referenced within the deed of conveyance.  See Panetta v. Equity One, Inc., 378 N.J. Super. 298, 315 (App. Div. 2005), rev’d, 190 N.J. 307 (2007).  In 2007, however, the Supreme Court of New Jersey resolved this uncertainty.  The Supreme Court found that a riparian grant is a separate and distinct interest in land and it therefore is not an appurtenant right in land that is conveyed automatically as part of the dominant estate.  Panetta v. Equity One, Inc., 190 N.J. 307 (2007).  The Supreme Court noted, however, that a riparian grant can pass with the conveyance of the uplands property despite not being expressly mentioned in the deed if there is “evidence that the parties intended its inclusion”.  Panetta, 190 N.J. at 307.  This is consistent with the guiding principle of deed interpretation described above, which is that the intention of the parties controls the property rights that are conveyed within a deed.  [...] relies heavily on the Panetta decision in support of its argument that the [...] was not conveyed with the uplands, arguing that the [...] is not specifically mentioned either by name or by legal description in any of the deeds of conveyance.
[brief] 25 Rosenberg v. Tavorath, 352 N.J. Super. 385, 401-402 (App. Div. 2002) ................................................................................................. 44, 58 Rubanick v. Witco Chemical Corp., 242 N.J. Super. 36, 45 App. Div. 1990), modified on other grounds, 125 N.J. 421 (1991) ............................................................................................. 43, 57 Schriger v. Abraham, 83 N.J. 46 (1980) ............................................................
[brief] Any Misrepresentation by [...] About Not Using 12-15+ Passenger Vans Was Rendered Immaterial When He Said On The Questionnaire That He Was Not Hiring Or Renting Any Vehicles At All.  [...] argues that the Questionnaire was material and relied upon by [...] in deciding whether to bind the coverage.  (Rb32-33).  The reliance upon statements in the Application must be a reasonable reliance.
[brief] The Court made plain error by misapplying [...]’s “well-settled legal right” prong.  See Da125.  It then compounded that error by: (i) overlooking evidence of the Attorney General’s inconsistent application of the LAD in this context; and (ii) disregarding the plethora of litigation around the nation on this very issue.  See Da126.  Injunctive relief represents a significant intrusion into the affairs of the parties.  Waste Mgmt. of New Jersey, Inc. v. Union County Utilities Auth., 399 N.J.Super. 508, 538 (App.Div. 2008), and must only be used sparingly, in the clearest of factual circumstances and for the most compelling of equities.
[brief] After Defendant explained this to the Court, defense counsel, at the suggestion of the prosecutor, agreed to visit Defendant at the jail that week to review with him the following discovery, responsive to his stated request:  “CIU reports which demonstrate that saliva was collected and actual photographs of saliva being collected next to the body, as well as a CODIS report stating that that saliva, when a buccal reference sample was submitted . . . [it] came back as matching a DNA profile of an [...], from New York State. ”  (4T30-17 to 31-22)  The Court granted the State’s motion to use reasonable force to obtain the buccal swab but stayed the order to allow defense counsel to show Defendant the requested discovery so he could refusal to cooperate.  (4T32-12 to 19; Da124-125)  On October 26, 2018, after Defendant reviewed the documents he had requested, he agreed to provide a blood sample in lieu of a buccal swab.
[brief] I am going to grant the motion for summary judgment on that issue only.  (1T13:1-14)  The lower court entered an Order granting the Defendant summary judgment on the issue of liability.  (63a)  Plaintiff then moved for reconsideration, which was opposed.  (66a)  At oral argument, held on April 28th, 2023, before [...], Plaintiff’s counsel argued that “[t]here is an independent witness statement saying that the stop was abrupt, sudden and violent, that the fall from, as a result of the stop, was abrupt, sudden and violent, sufficient to cause herniations in her spine. ”  (2T5:3-7)  Plaintiff’s counsel also pointed out that the motion record was bereft of any evidence that there was a sudden emergency that caused the bus driver to slam the brakes – the bus driver did not submit a certification detailing any such emergency.  (2T5:8-13)  The lower court denied the motion for reconsideration.  (73a)  This appeal followed.  (75a; 78a)
[brief] Finally, the level of earth movement and grading associated with the installation of bridge abutments could result in more erosion and sediment transfer within the tributary in comparison to the installation of a pipe culvert.  See 47 N.J.R. 1041(a) (June 1, 2015).  The proposed pipe culvert also meets N.J.A.C. 7:13-12.7(h), which provides a two-step approach to culvert construction.
[brief] Ibid (emphasis added).  In fact, the Rudbart test considers whether a contract is unconscionable and thus unenforceable.  “Unequal bargaining power” is merely one of several factor of unconscionability to be weighed under Rudbart.  This distinction is critical because unequal bargaining power alone does not preclude enforcement of an arbitration agreement considered to be a contract of adhesion.  See i.e. Young v. Prudential Ins. Co., 297 N.J.Super. 605, 620, certif. denied, 149 N.J. 408 (1997).  Nor is unequal bargaining power in and of itself sufficient to invalidate exculpatory agreements.  See [...] v. Casapenn Enterprises, LLC, 203 N.J. 286, 301-02 (2010) (“we assume that [...] was a layperson without any specialized knowledge about contracts generally or exculpatory ones specifically.  Giving her the benefit of all inferences from the record, including that [...] may not have explained to [...] the legal effect of the contract that released [...] from liability, we nevertheless do not regard her in a classic “position of unequal bargaining power” such that the contract must be voided. ”)  Third, the Rugbeer test as a whole is unnecessarily duplicative and convoluted.
[brief] (E.g., Pa000053–60 (Respondent [...]’s motion to dismiss)).  The parties fully briefed the trial court with opening, opposition, replies, and supporting materials.  The trial court, “having considered the submissions of the parties,” granted the motions and dismissed [...]’s claims against Respondent [...] without prejudice and referred the parties instead “to private arbitration in accordance with the Mutual Arbitration Agreement, which is clearly enforceable, and which was signed by [[...]] on 1/4/22.
[brief] The Special Master awarded fees for Plaintiffs’ counsel’s work opposing almost all of the [...]’ arguments on appeal, including that the [...] did not violate their fiduciary duties and that the punitive damages award was erroneous and excessive.  (39118a-39121a).  Here again, the Special Master erred by conflating the presence of some overlap with work on these non-RICO issues being “reasonably devoted” to establishing Plaintiffs’ RICO claims.  On fiduciary duties, the Special Master reasoned that if the [...] had a fiduciary duty to disclose financial records, the [...]’ failure to do so would be “circumstantial evidence of their mental state” for RICO predicate act purposes.  (39120a).  This tangential connection — itself based on conflating the legal question of the [...]’ fiduciary duties with the factual question of their mental state — is insufficient as a matter of law.  On punitive damages, the Special Master again overlooked the factual differences between a RICO claim and a claim for punitive damages.  See supra at 40-42; N.J. Stat. § 2A:15-5.12; Brokerage Concepts, 1996 WL 741885, at *5.  The Special Master narrowly read this Court’s ruling to simply imply that the trial court used the incorrect statute of limitations period.  (39057a).  But this Court did not merely remand for the trial court to apply the correct statute of limitations; it vacated the fee awards, which it explained “must be reconsidered for *several reasons,*” and it flatly held that the trial court erred in holding that all the claims involved “a common core of operative facts. ”  *Jarwick,* 2018 WL 2449133, at *29 (“We are convinced the court erred by finding that all of Jarwick's and Halpern's claims rested on a common core of operative facts. ”)  This Court’s directive bound the trial court, and the trial court had no discretion to disregard the Appellate Division’s clearly stated determination.  *See, e.g., Jersey City Redevelopment Agency v. Mack Props. Co. No. 3,* 280 N.J. Super. 553, 562 (App. Div. 1995) (“It is the peremptory duty of the trial court, on remand, to obey the mandate of the appellate tribunal precisely as it is written. ”)  Because the Special Master and the trial court failed to comply with this Court’s directive, the fee award should be vacated in its entirety.
[brief] The search for the registration was unlawful because officers failed to give the occupants of the car an opportunity to provide the registration.  Further, insofar as the officers had any valid safety concerns regarding [...], which is dubious given their total reliance on a 10-year-old incident as the basis for that concern, there would be no reason [...]—who had no such history and was already physically in the car—could not obtain the registration.  Second, the registration exception allows for a search only in the context of a motor vehicle stop.  In explaining the reason for the exception, our Supreme Court reasoned, “We have held that a traffic violation may justify a search for things relating to that stop. ”  State v. Keaton, 222 N.J. 438, 448 (2015) (emphasis added).  See also Terry, 232 N.J. at 222 (“A police officer has the lawful right to request that a driver, stopped for a motor vehicle violation, provide proof of ownership. ” (emphasis added)).  In Terry itself, the stop was initiated for motor vehicle infractions.  Terry, 232 N.J. at 244.  Later, reasonable suspicion developed that the car was stolen.  Ibid.  Thus, the justification for the search stemmed primarily from the motor vehicle infraction.  Insofar as the suspicion of criminal activity was used to justify the search in Terry, it was suspicion of a crime that relates directly to the ability to provide proof of ownership of the car.  But in this case the police stopped [...] on suspicion of criminal activity wholly unrelated to the ownership of his vehicle.
[brief] C.  The Motion Court Erred in Denying Suppression Based on [...]’s Conduct After He Exited the Car, Because it Was Equally Ambiguous Evidence of Nervousness.  In finding the frisk of [...] was reasonable, the court pointed to [...]’s conduct after he was ordered out of his car to be frisked; this was also error.  An officer’s “premature” intent to conduct a frisk can only be saved when, afterwards, “sufficient facts come to light” to save the legality of the frisk.  *State v. Smith*, 134 N.J. 599, 621 (1994).
[brief] THE ALJ ERRONEOUSLY ADMITTED EXHIBITS THAT CONTAINED HEARSAY AND/OR WERE NOT SELF-AUTHENTICATING WITHOUT REQUIRING THE [...] TO PROVIDE ANY EVIDENTIARY FOUNDATION FOR THOSE EXHIBITS.  (OAL DECISION AT PAGE 19; Pa19a)  During multiple times throughout the hearing, the OAL accepted the videos as truth because “the videos spoke for themselves. ”  As a matter of law, a “document” and/or “video” cannot “speak for itself” unless they are self-authenticating documents.
[brief] ”  State v. Sanchez-Medina, 231 N.J. 452, 468 (2018) (quoting State v. Galicia, 210 N.J. 364, 388 (2012)); see also, State v. Clark, 251 N.J. 266, 287 (2022); State v. Hightower, 120 N.J. 378, 410 (1990) (holding officer’s testimony that defendant “was the person responsible for the murder” was harmless error because of “the strength of the State’s case, the length of the trial, and the number of witnesses called”).  Where no objection was made at trial, “there is a presumption that that the [alleged error] was not error and was unlikely to prejudice the defendant’s case.
[brief] Although the owners of lands along the banks of a stream or waterbody have the right to the reasonable use of the waters, New Jersey law provides that “[t]he State owns in fee simple all lands that are flowed by the tide up to the high-water line or mark. ”  O'Neill v. State Highway Dep't., 50 N.J. 307, 323 (1967).  Thus, unless the State conveys these rights away, it has ownership rights in all tidally-flowed riparian lands up to the high-water line.
[brief] Plaintiff established that since 1993 the [...] has paid the bills associated with lighting the Fifth Street and Sixth Street Lots and for the snow removal on the Subject Property until buying its own plow, since which time the [...] has been performing the snow removal.  These facts were established through the uncontroverted testimony of [...].  (8T 5:3-7:3)  31.  The testimony of [...]’s former attorney, [...], and current engineer, [...], established the curb cut located on the [...]’s property utilized to access the Sixth Street Lot is legal, safe and has been present since the early 1990s.  Plaintiff’s expert, [...], also confirmed the curb cut is present in the 1993 Site Plan.  (Da916 and 13T 63:6-15, 77:22-106:3-111:20 and 121:4-130:25)  Rea testified that in the October 2008 survey (“2008 Survey”) there is a break in the sidewalk on the plan where the curb cut is located on Sixth Street.  (Da951 and 13T 77:22-83:24)  32.
[brief] Here, as was the case in Maimone where the plaintiff objected to the cessation of all investigations and enforcement of laws prohibiting prostitution and restricting the location of sexually-oriented businesses, “a trier of fact could find that plaintiff had an objectively reasonable belief that defendants made a policy decision that was incompatible with a clear mandate of public policy concerning the public health, safety and welfare”.  188 N.J. at 235.  Even [...] admitted in his deposition that in the aftermath of the July 4th fireworks in [...] in 2016, he and his fellow Committee members discussed the public safety issues associated with that event, in the context of the July 5, 2016 incident in which a group of young people engaged in violations of criminal statutes, including assault and disorderly conduct.