ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] 22  I.  The Unjust Treatment of the [...] Has Resulted in a Cascade of Errors.................................................................................................................................  22  II.  [...] Had a Disqualifying Conflict of Interest.  (39680a).................................................................................................................................  25  A.  The New Jersey Code of Judicial Conduct applies to Special Masters.  (39680a).................................................................................................................................  26  B.  Under the Code of Judicial Conduct, the conflict here required recusal.  (39680a).................................................................................................................................  30  III.  The Attorneys’ Fees Award was Erroneous in Multiple Respects (40005a-40010a; 39989a-40001a)
[brief] As to issue (2), [...] and [...] stand on their arguments as set forth in their initial brief as may be supplemented at oral argument.  Because there is substantial ambiguity in the lease drafted by [...] as to whether a personal guaranty was created thereunder, since guaranties are to be strictly construed against the party asserting the guaranty and against the drafter of an ambiguous document, since [...] has ignored important points in the reported decision cited by both sides, since [...] and [...] have supported their position with case authority that includes very similar facts as the case at bar, and since [...] has failed to cite any case law that supports his position, the Court should find that no personal guaranty has been created, or if necessary find that the guaranty was terminated as of May 11, 2016 or was revoked prior to the entry of the Consent Judgment relied upon by [...].
[brief] *Allen* specifically dealt with harmless error relating to improper lay opinion testimony by an officer, and noted the following standard when dealing with that issue:  Thus, in appeals involving the erroneous admission of improper police officer lay testimony, the nature and extent of the admitted testimony is balanced against the strength of the prosecution’s case beyond that testimony in determining whether the court’s error requires a new trial.  *Ibid.*; see also *State v. Derry*, 250 N.J. 611, 617 (2022) (holding that while an officer offered improper opinion testimony as a lay person that should have been qualified as expert testimony, the Supreme Court of New Jersey found that the error was harmless because of the “overwhelming evidence of defendants’ guilt presented at trial”).
[brief] See Harris, 357 N.J. Super. at 541.  “[A] jury reluctant to acquit defendant might compromise on a verdict of guilt on the greater offense,” particularly when “one of the elements of the offense is in doubt. ”  State v. Bielkiewicz, 267 N.J. Super. 520, 534 (App. Div. 1993) (quoting State v. Sloane, 111 N.J. 293, 299 (1988)).  Here, the trial court was required to charge the jury on second-degree robbery as a lesser-included offense because it was clearly indicated by the evidence presented at trial.  The court erred in concluding that a jury instruction on the lesser-included offense of unarmed robbery was unwarranted as to any of the codefendants simply because it was undisputed that [...], the principal, committed the robbery with a gun.
[brief] REPLY LETTER-BRIEF ON BEHALF OF DEFENDANT-APPELLANT  SUPERIOR COURT OF NEW JERSEY APPELLATE  DIVISION DOCKET NO. [...]  STATE OF NEW JERSEY, : CRIMINAL ACTION  Plaintiff-Respondent, :  On Appeal from an Order Denying a v. : Petition for Post-Conviction Relief of [...] : the Superior Court of New Jersey, Law  Defendant-Appellant. : Division, Atlantic County.  Indictment No. [...] Sat Below: Hon. [...], J.S.C. (Trial)  Hon. [...], J.S.C. (PCR)  Hon. [...], J.S.C. (PCR)  Hon. [...], J.S.C. (PCR)  Your Honors:
[brief] **APPELLANT’S ADMISSIONS CANNOT BE USED  SUPPLY THE REQUISITE RESIDUUM OF COMPETENT PROOF SUFFICIENT TO SUPPORT THE DISCIPLINARY CHARGES.** (OAL DECISION AT PAGES 12, 14-16, 29; Pa12a; Pa14-16; Pa29a)  In its opposition, the [...] noted that Appellant’s statements to [...] provide the necessary residuum because they were qualified hearsay exceptions.  (Rb at 17).  However, the [...]’s understanding of these statements is myopic and misplaced.  This Court has long held, “[a person’s] admissions or prior sworn statements serve to potentially contradict some of the hearsay evidence admitted under N.J.A.C. 1:1-15.5(a), but certainly cannot serve to corroborate or supply a residuum of competent proof sufficient to support the appointing authority's allegations. ”  Anderson v. County of Monmouth, 2006 N.J. AGEN LEXIS 960, *32, OAL DKT. NO. CSV 2101-05 (REMAND OF CSV 4698-04); AGENCY DKT. NO. 2004-2204 (October 2, 2006) (emphasis added).  In fact, the ALJ decided this case partly on the evidence that was presented, and partly on evidence that was not.  The ALJ held that “Appellant chose not to testify at the within hearing, where he could have offered testimony contradicting the evidence presented against him. ” (Pa023a).  Thus, the ALJ improperly shifted the burden of proof to [...] to disprove the allegations against him by a preponderance of the evidence in violation of N.J.A.C. 4A:2-1.4(a) which provides:  “In appeals concerning major disciplinary actions, N.J.A.C. 4A:2-2, the burden of proof shall be on the appointing authority. ”  In re Polk, 90 N.J. 550, 561 n.1 (1982)(establishing that the burden of proof is on the agency, and that ‘hearing examiners are required to report their findings of fact and conclusions of law ‘ . . . based upon sufficient, competent, and credible evidence . . . ’ (citations omitted)).
[brief] First, Respondent presented medical testimony through [...], a neurosurgeon, who explicitly opined that Respondent had aggravated previously asymptomatic and unknown degenerative conditions in her cervical spine in the subject incident, rendering said conditions as symptomatic; as well as new injuries.  (2T: 163:18 – 164:03, 164:19 – 166:14).  The Aggravation opinion is objectively substantiated, by correlating the objective MRI study and objective EMG/NCV study; wherein the acute disc finding according to [...] was below the level from which the acute EMG confirmed radiculopathy had occurred.  In other words, [...] opined to an acute disc herniation in the lower cervical, and an aggravation of a pre-existing but previously asymptomatic degenerative finding, such that it was rendered symptomatic and causing an acute radiculopathy.  (2T: 168:17 – 169:08).  Appellant never objected to [...]’s testimony at any point, relative to his diagnosing an aggravation.  The objection only was raised upon discussion of the Aggravation Charge being given.  I.  Objections  Not Timely Made/Preserved are  Waived  Appellant’s objection to the Aggravation Charge was waived, when Appellant failed to make the objection at the time of testimony; but further waived when he failed to move to strike the testimony prior to trial and/or move in limine to bar [...]’s known recorded testimony relative to his opinion regarding ‘aggravation’.
[brief] Subsequent to [...]’s discovery that its offer was contingent upon [...]’s waiver of the ROFR, it demanded that [...] agree to contribute to the penalties that would be incurred in de-branding the fuel station.  Da249.  It is no mere coincidence that this demand occurred subsequent to the disclosure of [...]’s ROFR to [...].  Had [...] known of the ROFR before it signed the PSA, it may have well negotiated for a lower purchase price to account for the additional considerations necessary where a ROFR is involved.
[directive] Rule 3:3-1(c)(1) on the Bail Schedule 2 charges of robbery, criminal sexual contact, second degree aggravated assault, aggravated arson, arson, burglary, first or second degree violations of Chapter 35 (drug offenses), any crime involving the possession or use of a firearm, or conspiracies or attempts to commit such crimes.  Rule 3:3-1(c)(2-6) (indictable offenses) and Rule 7:2-2(b)(1-6) delineate factors regarding whether a warrant or summons should issue for other offenses.  Rule 3:26-1 (indictable offenses) and Rule 7:4-1 (non-indictable offenses) delineate factors to be considered when setting bail and provide for the option of R.O.R. bail where appropriate.  Bail Ranges for attempts or conspiracies should generally be the same as the actual substantive crime.  Statute Charge Description Degree Bail Range 10%
[brief] [...] specifically found that Respondent violated the Act by failing to affirmatively disclaim her Board membership.  In doing so, [...] held:  • Count 1:  “members of the public could interpret this [as a] request from the [...] to fight the existing union structure.  Indeed, the [...] and [...] filed an unfair practice claim against the Board,” which violated the Act because “the [Act] does not support a sitting Board member putting the school Board at risk of litigation. ” (Ca028-29).  • Count 5:  Respondent’s comparison of Jews who were “tortured and murdered” during the Holocaust “based upon a racist ideology” to “unvaccinated individuals” was “distasteful and reckless,” and “resulted in public outcry from parents and students as evidenced by the board meeting minutes and newspaper articles. ”  (Ca029).  • Counts 2, 4, and 8:  “The point of these three postings is that the Governor overstepped his bounds in mandating vaccines and the public including school students should galvanize to take action against being vaccinated” and to flout “Executive Order 251” – New Jersey’s School Mask Mandate in effect at the time.  (Ca030-031).  [...] stated “it is disconcerting that [...] has encouraged adults and students, including her own children, to defy the laws of the State.
[brief] There is no independent contractual basis to resolve the case.  The Chiropractors’ contractual argument suffers from another defect.  The DPRP assignment provision applies only to assignees—that is, the entities to which insureds sign over their PIP benefits—but Plaintiffs have sued, in addition to the assignee medical practices, approximately twenty other individuals and entities they allege are liable for the fraud.  The Chiropractors offer no argument as to how the DPRP assignment provision could apply to claims against non-assignees.
[brief] [...] DID NOT REACH THE QUESTION OF WHETHER APPELLANT JUSTIFIED ANY PARKING VARIANCE.  (Aa236-45).  Because [...] denied Appellant’s application for the reasons set forth in the record, it ultimately did not reach the issue of whether Appellant justified any bulk variance relief for parking.  If this Court were to reverse the Authority denial of Appellant’s application for the reasons set forth in the Hearing Officer’s Report, remand to the Authority on Appellant’s requested variance relief would be appropriate.  In re Vey, 124 N.J. 534, 544 (1991).  III.
[brief] Pa6.  (8T:4-1 to 2; 7-4 to 5).  By letter dated June 30, 2022, counsel for the plaintiff submitted a Form of Order in accordance with the jury’s verdict including the Plaintiff’s/Appellant’s lost wages, medical bills, and prejudgment interest pursuant to Court Rule.  Pa30-44.  Counsel for Defendant objected, by letter dated July 6, 2022, and exhibits.  Pa45-60.  In August of 2022, the Court heard argument regarding the parties’ respective positions.  On April 13, 2023, the Court placed its opinion on the record, denying the plaintiff’s request to include the medical bills and lost wages.
[brief] (Raised Below: 1M7-13,Da87)  11  B.  EVEN IF THE TRIAL COURT DID NOT HAVE JURISDICTION TO GRANT THE MOTION FOR RECONSIDERATION, THE APPELLATE DIVISION HAS THE DISCRETION TO HEAR THIS CASE ON THE MERITS AT THIS TIME IN LIEU OF [...] FILING A SEPARATE MOTION FOR RECONSIDERATION OF THE 2023 APPEAL WHERE EFFECTUALLY THE CASE WILL THEN BE IN THE SAME POSITION IT IS NOW (BACK BEFORE THE APPELLATE COURT).  (Not Raised Below)  17  ##  TABLE OF CONTENTS OF APPENDIX | Appendix document | Appendix Page Number | |----------------------------------------------------------------------------------|----------------------| | Tax Foreclosure judgment entered June 29, 2020 | Da1 | | Appellate Division Order [...] June 8, 2023 | Da5 | | [...] Motion for Reconsideration March 5, 2024 | Da20 | | Certification of John T. [...] (Motion Exhibit “A”) | Da21 | | 257-261 20th Ave.  Realty LLC v. [...] | Da27 | | 2023 N.J. Super LEXIS 121 | | | Order denying motion for reconsideration | Da59 | | Order denying motion for reconsideration | Da60 | | Notice of Appeal filed June 10, 2024 | Da62 | | Amended Notice of Appeal | Da67 | | Appellant Case Information Statement | Da72 | | Certification of Transcript Completion and delivery | Da78 | | (4/26/24 Motion to Reconsider Oral Argument) | | | Bill A3772  Approved July 10, 2024 | Da79 | | Motion for reconsideration brief | Da87 | Brief included is compliant with R. 2:6-1(a)(2) since the question of *whether* an issue was raised in the trial court is germane to this appeal and further the brief also constitute proofs as to facts in the *appellate* brief.
[brief] ”); Gomez v. Forster & Garbus LLP, Civil Action No. 2:17-13708 (MCA) (MAH), 2019 WL 5418090, at *6 (D.N.J. Oct. 22, 2019) (“Nor is a debt buyer ‘a seller’ whose ‘subsequent performance’ falls within the ambit of the [CFA].””) (alteration in original) (quoting Chulsky, 777 F. Supp. 2d at 847); Boyko, 2009 WL 5194431, at *4 (“[L]iability for subsequent fraud is seemingly limited to where the original person selling the merchandise or real estate continues the fraud himself. ”); Valentine, No. [...] at 14.
[brief] ”  (Rb10-Rb15).  However, as the record reflects, not only did Respondent fail to raise this issue before the trial court, despite having the opportunity to do so, but Respondent’s counsel expressly acknowledged in the court below that there were no questions of fact which required a plenary hearing and conceded same was not necessary when questioned by the court on this issue during oral argument.  (1T23:7-10).  Accordingly, Respondent is precluded from raising the issue on appeal.
[brief] First, the Parental Secrecy Policy keeps children who are experiencing a transgender identity even from being evaluated by a competent mental health practitioner.  Gender dysphoria can be a serious condition, yet the Parental Secrecy Policy leaves children who are struggling with it (or sub-threshold psychological distress) to fend for themselves, without parental support and without the involvement of a mental health professional.  “[K]eeping parents uninformed . . . of significant events that beg for medical and psychological experts to evaluate a child . . . is . . . likely to cause . . . harm [to the child]. ”  *Mirabelli*, 2023 WL 5976992, at *14.  Second, the Parental Secrecy Policy’s “one size fits all” approach fails to account for the unique facts in each child’s situation and results in the unnecessary and ill-advised social transitioning of at least some children.  This is significant because once social transitioning is introduced, the odds of desistence plummet.  And the persistence of a transgender identity can result in the child experiencing psychological distress and is highly likely to lead to the introduction of puberty blockers and cross-sex hormones, which can cause irreversible changes to children’s bodies.  Even one child who unnecessarily suffers these life-long impacts is one too many.
[brief] J. Super. 468 (App. Div. 1991) | | | **Insinga v. Hegedus,** | 12 | | 231 N.J. Super. 562 (App. Div 1989) | | | **Jignyasa Desai, D.O., LLC v. N.J. Mfrs. Ins. Co.,** | 14 | | 473 N.J. Super. 582 (App. Div. 2022) | | | **Jorge v. Travelers Indem. Co.,** | 15 | | 947 F. Supp. 150 (D.N.J. 1996) | | | **Kende Leasing Corp. v. A.I. Credit Corp.,** | 7 | | 217 N.J. Super. 101 (App. Div. 1987) | | | **Martusus v. Tartamosa,** | 4 | | 150 N.J. 148 (1997) | | | **Palisades Ins. Co. v. Horizon Blue Cross Blue Shield of New Jersey,**| 15, 16 | | 469 N.J. Super. 30 (App. Div. 2021) | | Piermount Iron Works, Inc.  v. Evanston Ins. Co., 197 N.J. 432 (2009) .................................................................11, 12  Rider v. Lynch, 42 N.J. 465 (1964) ........................................................................19, 20  Sears Mortgage Corp. v. Rose, 134 N.J. 326 (1993) ......................................................................13  Tooker v. Hartford Accident & Indem. Co., 136 N.J. Super. 572 (App. Div. 1975) .............................................13  Velop, Inc. v. Kaplan, 301 N.J. Super. 32 (App. Div. 1997) ..............................................16  STATUTES AND COURT RULES
[brief] In this case, [...] was not in an ideal position to inspect the area of the parking lot in issue and to take prompt action to cure an alleged defect and the area of the parking lot where plaintiff allegedly slipped and fell does not constitute an ingress or egress to [...]’s leased premises, a premises which plaintiff admits he had no intention of visiting at the time of his alleged accident.  The evidence presented regarding the lease covenants squarely assigns the duty to maintain the area where plaintiff was allegedly injured to the landlord.  Consistent with that allocation, there is no evidence that [...] was obligated to make inspections of the parking lot area where plaintiff allegedly slipped and fell.  The landlord retained the obligation to make such inspections, did so, and performed all necessary repairs and maintenance.  The record does not establish any "rights" that [...] had over the area where the alleged injury occurred.  The *Kandrac*, *supra*, Court addressed the indicia which a Court should examine to determine that a commercial tenant, such as [...], owed no duty to plaintiffs to remove snow and ice from the location of [...]’s alleged slip and fall.
[directive] Vehicular Pursuit Policy 6  Authorized Tire Deflation Devices  6.1  Law enforcement agencies may choose to utilize authorized tire deflation devices during the course of a vehicular pursuit.  Agencies that choose to employ this strategy may only utilize devices authorized by this Policy.  As with all operational decisions made during the conduct of a vehicular pursuit, the use of such devices is subject to the assessment of inherent risk balanced against the need to apprehend a fleeing offender.  6.2  To be authorized for deployment and use under the vehicular pursuit policy, the tire deflation device must be capable of the following: (a) producing a controlled deflation of one or more tires of a pursued vehicle; (b) being deployed or activated immediately before the pursued vehicle drives over it, and removed or deactivated immediately after the pursued vehicle drives over it; and (c) allowing the officer to remain a safe distance from the roadway at the time of deployment or activation.  6.3  Prior to the deployment and use of an authorized tire deflation device, the law enforcement agency shall to the following: (a) modify its vehicular pursuit policy to provide for the proper use of the authorized tire deflation device; and (b) train all officers in the use of the authorized tire deflation device, which training must include practical, hands-on operation of the authorized tire deflation device.  6.4  The following are circumstances under which an authorized tire deflation device may be deployed: (a) an authorized tire deflation device may be utilized only after supervisory approval; (b) an authorized tire deflation device shall not be used to stop motorcycles, mopeds, or similar vehicles; (c) the authorized tire deflation device should not be used in locations where specific geographic features (e.g., sharp curves, alongside of rivers, steep embankments, etc.) increase the risk of serious injury to the officer, violator, or public; (d) deployment locations should have reasonably good sight distances to enable the officer to observe the pursuit and other traffic as it approaches; and (e) the officer deploying the authorized tire deflation device should not attempt to overtake and pass a high-speed pursuit in order to position the device.  6.5  Procedures for deployment of the authorized tire deflation device: (a) the officer deploying the authorized tire deflation device should do so from a position of safety; 10  USE OF FORCE POLICY
[brief] More importantly, the judge’s logic is somewhat less than outlined by the law.  He never shifted the burden of proof onto the defendants, as all of the caselaw cited shows must happen, once you find a confidential relationship.  The way we can discern that the Court did not shift the burden of proof to the Defendants is that it did not consider the lack of any documentation as proof that there was no intention of [...] being the beneficiary of the transaction.  For example, had a writing existed, stating that [...] should be the owner, and that [...] made a gift, that would have been some sort of proof.  However, the Court ruled that there was no gift, and certainly did not rely upon the [...] gift letter, which was abundantly flawed because if stated that [...] was the nephew of [...] Matos, which was a lie.  It is impossible for [...] to meet the standard of proof of clear and convincing evidence that he was to be the sole beneficiary of the transaction without a single document corroborating his testimony.  Further, there was no lease agreement between [...] and [...] Matos either.  That would have shown that there was some notion between the two that one was a landlord and the other a mere tenant.  No documents exist at all.  However, the court viewed it as the Plaintiffs’ failure to demonstrate that Defendant [...] was not the owner, when the law demands that [...] prove that he was the intended owner, because he obtained the money for the purchase from [...] Matos and admitted that he was supposed to buy a home for [...] Matos.  [...] offered no corroboration for his story that [...] Matos gave him the house as a gift, meaning the $50,000.00 Deposit, plus all future monthly payments of $1500. 00 for mortgage and taxes and HOA fees.  At some point [...] paid a portion of HOA fees approximating 15,000.00.  [...] Matos contributed approximately $200,000.00 over 8 years with the initial $50,000 plus 8 years of monthly payments.  It is difficult to argue that [...] did not take advantage of his father in law, [...] Matos.  It is tragic that they are in true peril of losing their home.  (Pa566-570)  The Court instead forced the plaintiffs to prove that the house was theirs, when instead he was supposed to shift the burden to [...] for him to prove that he was the intended beneficiary, but the Court failed to follow the law.  Not only that, but the Court found that there were zero documents that attested to what was going on.  That means that [...] could never win had the burden of proof been placed upon him, because the only thing backing up his story was his own self-serving testimony, and similar testimony from his wife.  Defendants had no independent, corroborative proof.  The shifting of the burden of proof is critical, and the Court failed to do it.  We don’t have to get into the difficult aspect of Pascale, which is whether a gift was made and not understood, because the Court correctly found that there was no gift made by [...] to [...]!
[brief] [...] had ample opportunity to view defendants at the time of the crime, in the confined space of her store.  Her fleeting view of defendants right before she testified pales in comparison to her opportunity to observe both defendants seated at counsel table during the length and breadth of her direct examination.  Our review of the record leads us to agree with the trial court and we therefore conclude that there was “sufficient indicia of reliability to outweigh the corrupting effect of the suggestive identification.