ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] TABLE OF AUTHORITIES ........................................................................................................ ii  PRELIMINARY STATEMENT .....................................................................................................1  PROCEDURAL HISTORY .........................................................................................................4  COUNTERSTATEMENT OF FACTS .........................................................................................6  LEGAL ARGUMENT ..................................................................................................................19  POINT I: THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR WHEN IT CHARGED THE JURY WITH MODEL JURY CHARGE 5.20F(5)  AS PLAINTIFF IS AFFORDED SPECIFIC PROTECTIONS AS AN INVITEE WHICH IS NOT PROVIDED IN MODEL  JURY CHARGE 5.20(B)(2)(b).  (7T:82-91:14)  .................................................................................................................................................................................................19  POINT II: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY ALLOWING PLAINTIFF TO REFERENCE  THE SNOW REMOVAL SERVICE AGREEMENTS  NOR DID IT EXPAND THE DUTY OF CARE  BECAUSE IT LAID OUT THE RESPONSIBILITIES AND EXPECTATIONS OF EACH PARTY AND HELPS A JURY APPORTION FAULT.  (1T39:15-43:2)  ......................27  POINT III: THE TRIAL COURT DID NOT COMMIT HARMFUL ERROR, NOR ABUSED ITS DISCRETION, WHEN IT REFUSED TO TAKE JUDICIAL NOTICE OF THE STATE OF EMERGENCY AND BARRED ITS REFERENCE DURING TRIAL  (1T29-30)  ...........................................................................................................32  POINT IV: THE TRIAL COURT DID NOT COMMIT HARMFUL ERROR OR ABUSE ITS DISCRETION WHEN IT PERMITTED PLAINTIFF TO QUESTION  DEFENDANTS ABOUT THE SATISFACTION OF SNOW REMOVAL SERVICES PROVIDED IN APRIL 2018 AS DEFENDANTS OPENED THE DOOR WITH THEIR TESTIMONY (1T582:2-24; 60:2-8)........38  POINT V: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT EXCLUDED A PHOTOGRAPH FROM EVIDENCE AS INSUFFICIENT TESTIMONY WAS PRESENTED TO AUTHENTICATE IT.  (7T70:20-22).  ....40  POINT VI: THE TRIAL COURTS DECISIONS AS A WHOLE DO NOT RISE TO THE LEVEL OF CUMULATIVE ERROR  JUSTIFYING A NEW TRIAL...42  CONCLUSION ............................................................................................................................46
[directive] [Wi/Yes]  [Non/No]  2.  Èske w konprann ke le fèt ou plede koupab epi w admèt ke w itilize oswa ou te gen zam afe sou w se yon (tip zam afe) pandan ke w tap komèt oswa , eseye komèt youn nan zak sa yo, w abandone dwa w pou yon jiri ta detèmine, odela de dout rezonab, ke w te itilize oswa genyen yon zam afe pandan ke w tap komèt oswa eseye komèt youn nan zak sa yo?  Do you understand that by pleading guilty and admitting that you used or were in possession of a firearm that is a , (type of firearm) while in the course of committing or attempting to commit one of the crimes, you are waiving your right to have a jury determine, beyond a reasonable doubt, that you used or possessed a firearm during the course of committing or attempting to commit one of the crimes?
[brief] ”  *Id.* at 90 (citing cases).  Addressing the facts, the *Martindale* court observed that the plaintiff there was provided the opportunity to consult an attorney, just as [...] acknowledged she had here.  173 N.J. at 91.  The Court also found relevant that the plaintiff herself, like [...], was educated and experienced in her field.  *Id.*  However, the Court found that “[n]othing in the record indicates that plaintiff asked to alter any terms of the application or that [...] would have refused to consider her for the position if she did not assent to the arbitration provision as presented. ”  *Id.*  There is no meaningful difference between the matter presently before this Court and the factual, logical basis justifying the enforceability of the arbitration agreement contained in *Martindale*.
[brief] (2T 11-13 to 12-6)  The court also found that the officer developed reasonable suspicion that [...] was under the influence of narcotics, due to his nervous behavior and “pinhole pupils,” justifying “a more intrusive line of questioning. ”  (2T 13-1 to 20)  The court concluded that the officer’s accusatory questions about whether [...] was under the influence of narcotics and if there were drugs in the car did not transform the stop into a custodial interrogation.  (2T 13-1 to 20, 13-21 to 14-9)  The court also decided that the officer’s question regarding the ownership of the drugs did not elicit an involuntary statement because the defendant did not have to assume ownership of the drugs.  (2T 14-10 to 14)  The court found that the police developed probable cause to search the car when [...] told and showed him drugs were in the car.
[brief] THE TRIAL COURT DID NOT ERR IN FINDING THAT RESPONDENTS DID NOT WAIVE THE RIGHT TO COMPEL THE MATTER TO ARBITRATION  Appellants argue that they will be significantly disadvantaged in arbitration due to Respondent’s alleged failure to fully participate in discovery.  Appellants allege that Respondents failed to provide dates for a corporate representative deposition, despite never having served a Notice of Deposition.  Appellants also attempt to muddy the waters and blame Respondents for the lack of a site inspection, when in reality the site inspection was not conducted because of scheduling conflicts amongst both parties and their respective expert witnesses.
[brief] In the absence of a specific provision pertaining to the Property, the Planning Board appropriately (or at least, reasonably) evaluated the general provisions and objectives of the Master Plan for consistency and made such a finding, satisfying its statutory obligation.  Having reasonably reached the conclusion there were no inconsistencies, it was not obligated to report any.  Setting aside Plaintiffs’ misconstruction of the Planning Board’s resolution and that the Planning Board did, in fact, make factual findings, the choice of legal authority they rely upon at Pb 24 in support of their position that the Planning Board must do so is misplaced.  *Powerhouse Arts District*, supra, did not concern a challenge to a Planning Board determination.  If anything, the passage cited by Plaintiffs, 413 N.J. Super. at 332-33, most closely supports the opposite proposition: that ordinarily, governing body determinations, when adopting ordinances, do not require formal findings of fact and that its determinations must merely be adequately supported by the record—no formal findings are necessary so long as the support is there.
[brief] Pa19.  Plaintiff suffered a full thickness rotator cuff tear to her right shoulder, requiring surgery, and a non-displaced fracture of her left elbow.  Pa19.  At the time of the fall, the sidewalk was unshoveled.  Pa127.  It had snowed lightly earlier in the day but had stopped prior to the fall.  Pa19.  The sidewalk leading up to defendants’ property was clear.  Pa54.  Plaintiff reported the fall to defendant [...] right after it happened.  Pa27.  Defendant [...] blamed plaintiff for wearing sneakers instead of boots.  Pa27.  On February 23, 2019, plaintiff reported the fall to the police.
[brief] Second, arbitration of the indemnity claim was, in fact, not futile.  [...] could have promptly exercised its right to arbitrate at the outset of the case regardless of whether the award would later be enforceable vis-à-vis other insurers.  There are essentially three possible outcomes if [...] arbitrates separately: (1) the arbitration panel and court could agree that [...] owes the same percentage, in which case there is no need for a second lawsuit; (2) a court could determine that [...] owes more than the arbitration panel determined and the other insurers thereby owe less to [...], resulting in [...] assuming the risk of the deficiency and not being made whole; or (3) a court could determine that [...] owes less than the arbitration panel determined, thereby shifting more of the loss to the other insurers, in which case the other insurers could pursue [...] for the difference.  This is part of the strategic choice of exercising an arbitration right in a multi-party litigation, with which [...] should be well familiar.  Although the arbitration outcome would be binding on both [...] and [...], both arbitrating parties bear the risk that they may not be made whole by a contribution claim in subsequent litigation.
[brief] Why does that matter?  Because, unlike the jury instructions, which the jury is obligated to follow, factual testimony can be believed in whole, in part, or not at all by a jury.  State v. Ernst, 32 N.J. 567, 583 (1960).  The scope of a trooper’s duties was simply not a matter of fact for the State to prove; it was a matter of law for the judge to instruct, and she did not do so.  While defense counsel did not object at the time of the actual jury instruction, the matter arose a number of times during the trial (11T 4-17 to 9-17; 14T 112-10 to 113-7; 14T 134-24 to 140-14; 16T 215-13 to 23; 17T 82-12 to 15), and, siding with defense counsel’s position, the judge consistently stated that she was “unquestionably” (14T 138-10 to 11) going to charge the jury on the law regarding the duties of a suspended trooper because those duties “are a matter of law and not a factual question.
[directive] Patients who are no longer eligible for critical care treatment should receive medical care including intensive symptom management and psychosocial support.  Where available, specialist palliative care teams will be available for consultation.  Access to and resources for palliative care should be strengthened in order to provide support and conduct effective patient and family centered conversations.  Where palliative care specialists are not available, the 12 treating clinical teams should provide primary palliative care.  Bereavement support services should be made available to families.
[brief] The Department’s abrupt reversal of its past course of dealing—upon which [...] and [...] have always relied—is exactly the type of arbitrary and capricious conduct that comprises improper rulemaking as confirmed by the Department’s reliance on [...]. II.  SSAP NO. 25 HAS NEVER BEEN APPLIED TO THE AIF FEE PAID BY THE INDIVIDUAL SUBSCRIBERS TO [...].  (JA1-2).
[brief] Another glaring example of the court’s error in dismissing the Complaint is in Count VI, where the Board alleges that [...] is liable for Conversion / Civil Theft when it violated the statute by using public taxpayer dollars for private profit.  Note the Board’s disputed facts:  21.  [...] used the $1,301,300.18 that [...] paid for the months of May and June 2020 to pay its employees for those months.  Board’s Response Disputed.  As per [...]’s own records, the payroll was at least $427,000 less than the $1.3-million tendered to [...].  The Board is entitled to discovery to check the veracity of these claims.  22.  [...], however, has been unable to pay its employees for the month of April 2020, because [...] has not paid [...] for that month.  ([...] Cert. at ¶ 10).  Board’s Response Disputed.  Several of the employees were laid off and/or not entitled to payment because they collected unemployment.  [...] also had access to other government paycheck relief assistance.  The Board is entitled to discovery to check the veracity of these claims.
[brief] There are no such proofs in this case.  Therefore, plaintiff’s reliance upon *Froom* is misplaced.  It should be noted, however, that, in *Froom*, the Court found that there was no causation, and dismissed the legal malpractice action.  Next, [...] relies on *Hernandez v. Velez*, 267 N.J. Super. 353 (Law Div. 1993).
[brief] [N.J.S.A. 10:4-7 (emphases added)].  The OPMA established as public policy the objective to insure:  [T]he right of its citizens *to have adequate advance notice of and the right to attend all meetings of public bodies* at which *any business* affecting the public is discussed or acted upon in any way except only in those circumstances where otherwise the public interest would be clearly endangered or the personal privacy or guaranteed rights of individuals would be clearly in danger of unwarranted invasion.  *[Id. (emphasis added). ]*  The OPMA serves not only the goal of enshrining and protecting the *right* to access.  Rather, it also serves the long-recognized goal of *maximizing, enhancing, and promoting* increased public access.  See *S. Jersey Pub. Co. v. N. J. Expressway Auth.*, 124 N.J. 478, 494 (1991) (“[I]t would be anomalous to interpret the Open Public Meetings Act, enacted by the Legislature to *enhance the public's access to and understanding of the proceedings of governmental bodies*, in a manner that foreclosed the public's right to obtain material and information vital to its ability to evaluate the wisdom of governmental action. ”) (emphasis added); *Kean Fed'n of Tchrs. v. Morell*, 448 N.J. Super. 520, 543 (App. Div. 2017), aff'd in part as modified, rev'd in part, 233 N.J. 566 (2018) (“The overarching public policy of the OPMA seeks to encourage, promote, and *enhance* the public's participation in the democratic process”) (emphasis added).
[brief] -  The arbitrator should determine which factors are relevant, weigh them, and explain the award in writing.  *See*  137 N.J., at 82.  - The relevance of a factor depends on the disputed issues and the evidence presented.  *Ibid.*  -  Regardless of whether the parties offer evidence on a particular factor, the arbitrator should explain why the arbitrator finds any factor irrelevant.  *Id.* at 84.  -  However, the arbitrator is not required to find the facts on those deemed irrelevant, only to explain why a factor is considered irrelevant.  *Ibid.*  -  The arbitrator is required to identify the relevant factors, and to analyze and explain the evidence pertaining to those factors.  *Id.*, at 84-85.  -  The Subsection 16g factors expressly require the arbitrator to consider the effect of an award on the general public, and the award runs the risk of being found deficient if it does not expressly consider the interests and welfare of the public.  *Id.*, at 83.  The Union contends that the Arbitrator misapplied the 16 (g) criteria, but fails to explain the misapplication.  The Commission has decided that where a party claims that an arbitrator did not follow the proper procedure and fails to explain how this is the case, other than just generally making the contention, the contention will be rejected.
[brief] That power is neutralized when the consumer is forced to review the proposed terms without “the option of rejecting the contract with impunity. ”  Carnival Cruise Lines v. Shute, 499 U.S. 585, 595 (1991).  In Carnival Cruise Lines, the consumer was bound to the forum selection clause because the terms were available for review and to be accepted or rejected prior to purchase of the ticket.  Id. at 590.  Grappling with this principle in the Internet Age, in Caspi v. Microsoft Network this Court likewise enforced a forum selection clause because the terms could have been reviewed before the prospective subscriber created an account.
[brief] Plaintiff [...] hereby submits this reply brief in support of his appeal and in opposition to the Respondents brief(s) filed herein by [...] on behalf of his clients, the [...].  The issue presented by this appeal is similar to D. Russo, Inc. v. Township of Union, 417 N.J. Super. 384, 9 A.3d 1089 (App. Div. 2010) and bottoms down to whether Plaintiff who brought an action under N.J.S.A. 10:6-2 and R. 4:69 that resulted in a change in the defendant's conduct may qualify as a "prevailing party" even though the action was dismissed as moot rather than being concluded by a judgment in plaintiffs favor.
[brief] 7.  With regard to the life insurance policy on the decedent's life that exceeds $800,000, the insurance Agency must provide a copy of the application that [...] submitted for the policy, a copy of the entire policy, and a copy of any changes made to this policy; 12.  [...] must promptly comply with all outstanding Orders of the Court and requests from the Court Administratrix, [...], Esq.  Everyone is to be reminded that this Order is directed to persons who are licensed, including Funeral Directors, Attorneys, Accountants, and Insurance Agents.  [...], Esq. is to assure that a copy of this Order is served upon [...] and [...].
[brief] [Pa352a]  Specifically, in November 2012, [...] issued checks from two different trust accounts to Firm clients and himself: [...] for $100; [...] for $200; [...] for $279; [...] for $1,406.62; [...] for $1,970.24; [...] for $50; and himself for $47.42.  [Id.]  [...] did not deliver one set of the checks to the client payees.  [Id.]  Instead, on November 9, 2012, without client authorization, [...] “endorsed and cashed [the client checks] at [...], a business in which he has a proprietary interest, and where [his former paramour’s nephew] was employed. ”  [Pa352a]  [...] issued the two sets of checks so that his new office clerk “would believe that there was only one attorney trust account. ”  [Pa352-353a]  [...] then planned to close the attorney trust account from which he issued the $20,000 payment to his former paramour so that the bank statements would not need to be continuously altered after the initial concealment of the $20,000 payment.  [Pa353a]  By stipulation, [...] admitted that “he failed to: (1) maintain accurate trust account records; (2) deposit the $30,000 fee … into his attorney business account; and (3) promptly disburse the $4,595.83 remaining on the deposit in the [trust account] into his business account. ”  [Id.]  The OAE also discovered that [...]’s statement to OAE that the $100,000 deposit into the trust account on July 30, 2012, “‘was made to accommodate all office bonuses that were being paid’” was false.  [Pa364a]  In truth, the $100,000 deposit was not made to accommodate office bonuses, but rather was a “deposit of settlement proceeds in [a client] matter. ”  [Id.]  **B.
[brief] Plaintiffs effectively argue that this Court should ignore the litany of legal errors made by the trial court solely because it found plaintiff, [...] (“[...]”) and his accounting expert credible.  While a trial court’s credibility findings are entitled to deference, they cannot be relied on in the absence of evidence in the record supporting the court’s legal conclusions as is the case here.  Plaintiffs leave Defendant’s appeal arguments materially unopposed by failing to highlight the record evidence which established the required elements of any prima facie cause of action against Defendant.  Plaintiffs’ position that the trial court correctly held Defendant jointly and severally liable under the Judgment by virtue of her being married to defendant, [...] (“[...]”) and because of his purported wrongful conduct is legally untenable and not supported by any credible evidence or case law.  Plaintiffs’ remaining arguments also lack merit.  Defendant did not waive her pre-suit demand and statute of limitation arguments with respect to Plaintiffs’ conversion claims.  Plaintiffs fail to cite any evidence in the record demonstrating that Defendant intentionally relinquished or abandoned a known right.  The trial court’s failure to recognize the pre-suit demand requirement in identifying the required elements of conversion in its decision, and its inclusion of transactions in the damage award that were barred by the applicable statute of limitations, constitute plain error that fundamentally prejudiced Defendant.
[brief] Ibid.  The Court “h[e]ld that, given the absence of Miranda warnings, defendant’s statements must be suppressed. ”  Id. at 365.  The Court cited several reasons for determining that [...] was in custody.  “The place of the interrogation and the status of the interrogators weigh in favor of defendant’s assertion that he was in custody. ”  Ibid.  Specifically, the police “isolated” [...] in an “area reserved solely for police purposes,” and the officers’ “status as criminal investigators was clear. ”  Ibid.  Additionally, because officers’ “direct questions” about controlled substances provided an “objective indication[] that defendant was a suspect,” “a reasonable person in defendant’s position would conclude from those circumstances that he was, or was becoming, a focus of a police investigation. ”  Id. at 365-66.  The Court rejected the State’s argument that [...] was not in custody “because the officers were not overbearing, and the interrogation room was not inherently intimidating”; [...] “was subjected to an incommunicado interrogation in a police dominated atmosphere” without being informed of his constitutional rights.  Id. at 366-67.  The Court also rejected the State’s argument that [...] did not need to be Mirandized because he had “prior arrests”; even if [...] had been Mirandized in the past, “required warnings are an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere,” and “no amount of circumstantial evidence that the person may have been aware of his or her rights will suffice to stand in their stead.
[brief] (Brief omitted)  .................................................................................. 98a  Exhibit L: February 27, 2017, Order of the Appellate Division denying plaintiffs’ Motion for Leave to Appeal.  .............................................105a  Exhibit M: February 28, 2018, Notice of Motion to Vacate the Order of November 10, 2016, and Reinstate the Complaint against [...], Esquire, and [...] (Brief omitted.
[brief] BRIEF OF PLAINTIFF/APPELLANT, [...]  [...]  [...]  One 99 Wood Avenue South Iselin, New Jersey  08830-2712 [...]  Attorneys for Plaintiff/Appellant, Michael E. Crane Of Counsel and On the Brief: [...], Esq.  (ID No.: 047911998)  On the Brief: [...], Esq.  (ID No.: 049161995)  [...], Esq. (ID No.: 024101998)
[brief] [...]’s Unlawful Conduct Violated the Consumer Fraud Act**  N.J.S.A. 17:11C-33(b) unequivocally defines [...]’s conduct as “crime of the fourth degree. ”  Moreover, there is no dispute that [...] was unlicensed when it acquired [...]’s debt. \(^5\)  Nor is there any dispute that [...], “as a purchaser of debt . . . meets the definition of consumer lender” under N.J.S.A. 17:11C-2.  *See Valentine v. Unifund CCR, Inc.*, Civil Action No. 20-cv-5024, 2021 U.S. Dist. LEXIS 44747, at *12 (D.N.J. Mar. 10, 2021); *see also [...] v. Fein, Such, Kahn & Shepard, P.C.*, 2023 N.J. Super. Unpub. LEXIS 640, *9-17 (Law Div. April 26, 2023) (where the court expressly contradicted *Woo-Padva* and reasoned that purchasers of consumer debt are within the ambit of the NJCFLA).  Nonetheless, the trial court adopted the reasoning of *Valentine*, *supra*, BER-L-376-23, and determined that [...]’s debt collection activity was not subsequent performance of the sale of merchandise within the ambit of the CFA.  However, “collecting or enforcing a loan, whether by the lender or its \(^5\) *See [...]’s license verifications at Pa84-Pa85.* assignee, constitutes the ‘subsequent performance’ of a loan, an activity falling within the coverage of the CFA. ”  *Gonzalez v. Wilshire Credit Corp.*, 207 N.J. 557, 577-78 (2011) (quoting *Jefferson Loan Co., Inc. v. Session*, 397 N.J. Super. 520, 538 (App. Div. 2008)).  The holding in *Gonzalez* is as clear as it is broad—debt collection activity constitutes “subsequent performance” under N.J.S.A. 56:8-2.  To hold otherwise would yield absurd results—the original creditor would violate the CFA, but an assignee would not for the same unlawful commercial practice.  Further, courts have consistently held that the CFA is remedial and should be broadly construed to affect its purposes.