ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] We do not, however, know how the court weighed those circumstances with respect to the aggravating factors it found to exist.  Martelli, supra, 201 N.J.Super. at 385.  This cursory review of the aggravating and mitigating factors does not reflect “the qualitative weighing process contemplated by the Code. ”  State v. Towey, 114 N.J. 69, 84 (1989).  As the State concedes, the trial court improperly considered aggravating factor eleven, N.J.S.A. 2C:44–1a(11), which is addressed to situations in which “[t]he imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant or others merely as part of the cost of doing business. ”  This provision, by its very terms, “is inapplicable unless the judge is balancing a non-custodial term against a prison sentence. ”  State v. Dalziel, 182 N.J. 494, 502 (2005).  Because defendant was convicted of a crime for which imprisonment is presumed, N.J.S.A. 2C:44–1a(11) should not have been applied.  State v. Rivera, 351 N.J.Super. 93, 110 (App.Div.2002), aff’d, 175 N.J. 612 (2003); N.J.S.A. 2C:44–1d.  We thus remand to the trial court for re-sentencing on all counts.
[brief] ”  State v. Melvin, 248 N.J. 321, 341 (2021) (alteration in original) (quoting State v. Case, 220 N.J. 49, 65 (2014)).  We will “affirm the sentence of a trial court unless: (1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not ‘based upon competent credible evidence in the record;’ or (3) ‘the application of the guidelines to the facts’ of the case ‘shock[s] the judicial conscience. ’ ”  State v. Bolvito, 217 N.J. 221, 228 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364 (1984)).  The first prong of the inquiry presents an issue of law that is reviewed de novo.
[directive] Release Other^ and Associations, the that request shall appropriate as general attorney deputy or prosecutor assistant An the where (1) 162-17(b)(2)(a) to N.J.S. A.  by authorized condition release any other impose court the assure reasonably to needed condition is such that believe to reason has prosecutor person other any of safety of protection the the required, when court in appearance  defendant's criminal the obstruct attempt to or obstruct not will defendant the that and community, or the in program services pretrial monitoring by (electronic 6.2.2 subsection also See process. justice imposed).
[directive] B.  Law enforcement agencies must conduct at least two random drug tests during the period from April 1, 2021 to December 31, 2021.  Each of these tests must include at least 10 percent of the total number of sworn officers within the agency, and every officer must have an equal chance of selection during each test.  In effect, the requirement contained in Section II.C of Directive 2018-2 that two random tests be conducted during the “calendar year” of 2021 shall be amended and interpreted to include the period April 1, 2021 to December 31, 2021.
[directive] This Certification is supplied to the Superior Court, pursuant to the provisions of R. 3:23- 9(d) and State v. Storm, 141 N.J. 245 (1995) to provide the court and the prosecutor with all facts that may foreseeably affect the fairness of the proceedings to enable the court to determine whether I may be appointed as an impartial private , the complaining witness in the above matter.  prosecutor for 1.  (Sírvase marcar con un círculo la letra que aplica).  El testigo denunciante es: (Please circle the applicable letter).  The complaining witness is: (a) un individuo, (b) un negocio or (c) una entidad con su propia jefatura de an individual, (sírvase describirlo): policía (sírvase describirla): a business, an entity with its own police department (please describe) (please describe):  Formulario enmendado promulgado por la directriz #13-08 (10/08/2008), CN 10202-English-Spanish página 1 de 3 Revised Form Promulgated by Directive #13-08 (10/08/2008), CN 10202-English-Spanish page 1 of 3 2.  No existe ningún conflicto de intereses proveniente de mi representación del testigo denunciante ni del acuerdo de honorarios con él.  Marque la casilla si es cierto.  There is no actual conflict of interest arising from my representation of, and fee arrangement with, the complaining witness.  Check if correct.  De lo contrario, sírvase dar una explicación:  If not, please explain:  3.  El fiscal ha optado por no dirigir el enjuiciamiento.  Marque la casilla si es cierto.  The prosecutor has elected not to conduct the prosecution.  Check if correct.  De lo contrario, sírvase dar una explicación:  If not, please explain:  4.  Al acusado lo representa, o se espera que lo [Sí/Yes]  [No/No]  [No se sabe/ represente, un abogado.  Unknown]  The defendant is or is expected to be represented by counsel.  Se ha notificado al abogado del acusado [Sí/Yes]  [No/No]  Notice has been given to defendant’s attorney  5.  No existe ni se prevé ningún litigio civil entre el testigo denunciante y el acusado con respecto a los hechos de la denuncia o hechos similares.  Si llegara a ocurrir tal litigio civil, he informado al testigo denunciante que ni yo ni ningún miembro de mi bufete lo representaremos en ese asunto.  Marque la casilla si es cierto.  There is no civil litigation, existing or anticipated, between the complaining witness and the defendant concerning the same or similar facts as are contained in the complaint.  In the event of such civil litigation, I have informed the complaining witness that neither I nor any member of my firm will undertake the complaining witness’ representation in that matter.  Check if correct.  De lo contrario, sírvase dar una explicación:  If not, please explain:  Formulario enmendado promulgado por la directriz #13-08 (10/08/2008), CN 10202-English-Spanish página 2 de 3 Revised Form Promulgated by Directive #13-08 (10/08/2008), CN 10202-English-Spanish page 2 of 3 6.
[brief] Juveniles Receive Constitutional Protection Against Lengthy Sentences Because of Their Diminished Culpability and Likelihood of Reform, Characteristics Described by the Miller Factors.  Cruel and unusual punishment is unconstitutional.  U.S. Const. amend. VIII, XIV; N.J. Const. art. I, ¶ 12.  Under a series of decisions, this constitutional protection limits the severity of the sentence that may be imposed on a young offender.  An offender who was under eighteen at the time of the offense may not receive the death penalty, *Roper v. Simmons*, 543 U.S. 551 (2005); may not receive life without parole for a non-homicide offense, *Graham v. Florida*, 560 U.S. 48 (2010); and may not receive life without parole for a homicide -- except in the unusual circumstance that the juvenile offender is found to be incorrigible, *Miller v. Alabama*, 567 U.S. 460 (2012).  Moreover, a court must make this finding of incorrigibility before sentencing a juvenile offender to a lengthy term of years that approaches life without parole.  *State v. Zuber*, 227 N.J. 422 (2017).  In the most recent *Comer* decision, our Supreme Court held that the mandatory thirty-year parole bar for murder, see N.J.S.A. 2C:11-3(b)(1), is cruel and unusual punishment when applied to juvenile offenders.  Accordingly, juvenile offenders are entitled, after serving twenty years in prison, to be resentenced and considered for release.  *Comer*, 249 N.J. at 401, 403.
[brief] However, in certain cases, the upland owner can transfer those rights to another person that can act and acquire the property but not actually be the upland owner that time (1T146:8).  If the upland owner and the owner who owns the Riparian Grant can separate and convey away just the upland and not the Riparian Grant, [...] agrees because what happens is, it becomes a fee to title.  Once it becomes fee to title, he theoretically could have subdivided the Riparian Title into lots and sold them off independently (1T146:16).  In this particular case, if [...], who owned the Riparian Grant as well as the upland chose to simply convey the upland, he could have retained title to the Riparian Grant.  [...] confirms that this is his conclusion because when [...] sells to [...], he includes the 26 acres plus the land underwater (1T146:25).
[brief] TPO and recording of evaluations conflict with requirements for test security, published ethical principles, and standards of conduct in the field that are designed to protect the public, examinees, and the profession as a whole.  The Update further highlights how TPOs interference can impact the entire exam and results derived therefrom:  TPO can affect the cognitive functions most often assessed in forensic or medicolegal settings and may impact interpretation and comparison of test results.  Consequently, testing conducted in the presence of a TPO is not consistent with best practices in clinical neuropsychology, may interfere with obtaining accurate data in a neuropsychological examination, and therefore jeopardizes the accuracy of decisions and judgments made by the trier of fact when based on these data.  As reflected in this choice to revise their written standards, the existence of a Court Order does not change professional standards of practice.
[brief] The prosecutor replayed the video for the jury, rhetorically asking, “[w]hat's that on the back of his hat?  You've got to look at the evidence closely, people. ”  But so far as the record before us reflects, the State did not introduce an enhanced or enlarged screenshot from the video confirming that the hat worn by the robber bore the same distinctive emblem as on the hat recovered from the vehicle.  The remarks and arguments of counsel are not evidence.  See State v. Berry, 471 N.J. Super. 76, 103, 272 A.3d 1 (App. Div. 2022) (citing State v. Timmendequas, 161 N.J. 515, 737 A.2d 55, 578 (1999)).  *15
[brief] In attempt to rebut [...]’s argument that the legislative history of N.J.S.A. 2C:39-7 demonstrates that purpose of the certain persons statute is to (1) criminalize and (2) punish more harshly (via the longer parole disqualifier) mere possession of a firearm by a defendant with a predicate conviction (Db27), the State fails to respond to any of the legislative history cited by [...] or point to any additional legislative history.  (Sb17-20)  Rather, the State cites two published Appellate Division cases, State v. Jones, 198 N.J. Super. 553 (App. Div. 1985) and State v. Wright, 155 N.J. Super 549 (App. Div. 1978), and the unpublished case cited by the trial court, State v. Flowers, No. A-2401-09, 2013 N.J. Super. Unpub. LEXIS 1962 (App. Div. Aug. 5, 2013). ³ (Sb17-20).  None of these cases undermines [...]’s assertions.  The language quoted by the State from Jones and Wright supports rather than undermines [...]’s position because the quotations speak to possession of firearms by certain persons rather than use in a crime.  (Sb18)  ³  As noted in [...]’s initial brief, Flowers was not cited by either party below and the sentencing court did not provide a copy of the opinion to undersigned counsel; because the Office of the Public Defender provides its attorneys with a Westlaw subscription only, and this case is apparently exclusively available on Lexis, undersigned counsel’s first opportunity to read this case was when the State included the case in the appendix to its response brief.  Jones is completely unhelpful to deciding between concurrent and consecutive sentences because it neither involved a firearm nor discussed concurrent or consecutive sentences.  In that case the defendant was charged under the certain persons statute for carrying a twelve-inch kitchen knife in his gym bag and the State appealed from an order of the trial court granting defendant’s motion to dismiss the indictment on the ground that the statute was overbroad and unduly vague.  198 N.J. Super. at 557.  This Court reversed and reinstated the indictment but did not discuss anything concerning the implications of the purpose of the certain persons statute on sentencing.  Id. at 557-566.  Wright involved an interpretation of the pre-Code certain persons statute, N.J.S.A. 2A:151-8, rather than the statute at issue in this case, N.J.S.A. 2C:39-7.  155 N.J. Super. at 554.  The question at that case was whether the certain persons statute, N.J.S.A. 2A:151-8, merges with the unlawful possession without a permit statute, N.J.S.A. 2A:151-41(a); this Court held that the two offenses do not merge.  Ibid.  However, the Court’s brief comments on the legislative purpose support [...]’s argument; the Court noted that although there is an exemption to the crime of carrying a firearm without a permit “in one’s dwelling or place of business,” a person who has been convicted of a crime “covered by N.J.S.A. 2A:151-8 . . . may not possess such weapon in any place, even his dwelling or place of business.
[brief] **Judicial Review of State Administrative Decisions**  Judicial review of administrative agency action is an enshrined constitutional right under our State Constitution.  See *N.J. Const.* Art. VI, §5, ¶ 4.  Further, *R. 2:2-3(a)(2)* “authorizes an appeal as of right to the Appellate Division from final agency decisions or actions of any state administrative agency or officer and to review the validity of any rule promulgated by a state administrative agency with the exception of certain tax matters. ”  *Silviera-Francisco v. Board of Educ. of City of Elizabeth*, 224 N.J. 126, 136 (2016).  “Generally, an order is considered final if it disposes of all issues as to all parties. ”  *Silviera-Francisco v. Board of Educ. of City of Elizabeth*, 224 N.J. 126, 136 (2016)(*citing* *Petersen v. Falzarano*, 6 N.J. 447, 452-53 (App. Div. 1951)).  This principle applies with equal force to “orders and decisions of state administrative agencies. ”  *Silviera-Francisco v. Board of Educ. of City of Elizabeth*, 224 N.J. 126, 136 (2016)(*citing* *In re CAFRA Permit No. 87-0959-5*, 152 N.J. 287, 299 (App. Div. 1997)).  “Another feature of a final agency decision is the absence of or exhaustion of ‘all avenues of internal administrative review. ’”  *Silviera-Francisco v. Board of Educ. of City of Elizabeth*, 224 N.J. 126, 136 (2016)(*quoting* *Bouie v. N.J. Dep’t of Cmty. Affairs*, 407 N.J. Super. 518, 527 (App. Div. 2009)).  Put simply, final agency action is subject to appellate review.  *Matter of Request to Modify Prison Sentences*, 242 N.J. 357, 390 (2020).  *N.J.S.A.*  6A:4-4.3(a) provides that Commissioner determinations shall be deemed final agency actions appealable to the Appellate Division of the Superior Court.  Appellate review of administrative action is “severely limited. ”  *Mazza v. Bd. of Trs.*, 143 N.J. 22, 25 (1995).  The Appellate Division reviews agency decisions under an arbitrary and capricious standard.  *Zimmerman v. Sussex Cnty. Educ. Servs. Comm’n*, 237 N.J. 465, 475 (2019).  “An agency’s determination on the merits ‘will be sustained unless there is a clear showing that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record. ’”  *Saccone v. Bd. of Trs., Police & Firemen’s Ret. Sys.*, 219 N.J. 369, 380 (2014)(quoting *Russo v. Bd. of Trs., Police & Firemen’s Ret. Sys.*, 206 N.J. 14, 27 (2011)).  “The deferential standard is consistent with ‘the strong presumption of reasonableness that an appellate court must accord an administrative agency's exercise of statutorily delegated responsibility. ’”  *In re Att'y Gen. Law Enft Directive Nos. 2020-5 & 2020-6*, 246 N.J. 462, 489 (App. Div. 2021)(quoting *City of Newark v. Nat. Res. Council, Dep't of Env't Prot.*, 82 N.J. 530, 539 (1980)).  POINT II
[brief] THE LAW DIVISION ERRONEOUSLY AWARDED ATTORNEY FEES TO PLAINTIFF.  The [...] never missed a loan payment, and had every right to challenge a wrongful foreclosure assignment that prevented them from refinancing.  Section 9 of the mortgage contract only permits attorney fees in certain scenarios which [...] did not fall into, and in the permitted scenarios only prior to entry of Final Judgment.  The mortgage contract merges into the Final Judgment – the Chancery Final Judgment was relied upon by the [...] and [...] as total amount due to refinance.  In Garcia v. Fed. Home Loan Mortgage Corp., 3:20-CV-01458-L, 2022 WL 4007984 (N.D. Tex. Sept. 2, 2022), the court stressed the fact that Section 9 applies to Lender’s interest in cases such as bankruptcy, probate, condemnation or forfeiture.  [...] did not fall into any of said scenarios.  Further, the loan merged into Chancery Final Judgment, and the [...] paid the loan in full at refinance with [...].  [...] specifically stated in the Final Judgment that no fees were charged to the [...].  [...] was intent on the [...] getting past a wrongful foreclosure assignment ([...] originator had long been dissolved and no successor) so that they could refinance.  [...] certainly did not contemplate another nearly $200,000.00 to be tacked on as additional debt owed under the mortgage.
[directive] Compare State v. Lagares, 127 N.J. 20, 32 (1992) (constitutionality of N.J.S.A. 2C:43-6f depends on the Attorney General is- suing guidelines that reflect the legislative intent to make extended sentencing of repeat drug offenders “the norm rather than the exception”).  The Division of Crimi- nal Justice shall collect information and report periodically to the Attorney General on how often the new adjustment feature is being used and its effect on statewide uniformity.
[brief] (Da 17 to 28)  The court perceived an unresolved debate around the country as to whether constitutional protections against long sentences should extend beyond juveniles.  (Da 24 to 26)  Specifically as to [...], the court reasoned that the decision applied only to juveniles and that any expansion of the decision “should be more appropriately addressed by our Supreme Court. ”  (Da 27 to 28)  Based on this notion that extending [...] was beyond the Law Division’s power, the court refused to hear testimony on the developmental science at an evidentiary hearing.  (Da 28)  On November 30, 2022, the [...] filed a notice of appeal.
[brief] (7T33-15 to 19; 7T55-13 to 19).  The bullet had damaged the left ventricle of the heart.  (7T63-3 to 9).  The bullet had first hit the lungs, fractured some ribs and then hit the heart.  (7T64-4 to 7; 7T65-2 to 6).  The cause of death was listed as a gunshot wound to the chest with damage to the lungs and heart with massive blood loss.  (7T67-8 to 12).  [...] survived his gunshot wound.  The gunshot wound to his face lacerated a blood vessel and required surgery.  (9T36-13 to 16; 9T37-22; 9T72-14 to 18; 9T73-13 to 19).  The gunshot wound caused him facial fractures and a broken jaw, as well.  (17T64-17 to 20).  Because it was difficult for [...] to talk following his surgery, he did not give a statement to the police until May 2019.
[brief] • The Superior Court of New Jersey, Law Division, Civil Part, Camden Vicinage – the trial court.  • The Superior Court of New Jersey, Appellate Division – the court or this court.  •  This particular case - this case or the case.  •  Plaintiff [...]- plaintiffs.  • Defendant [...] – defendants.  • [...] – fictitious parties named to the complaint – the Does.  • Plaintiff and defendants collectively – the parties.  •  The complete geographical confines of the [...] – the Borough.  •  All the residents of the Borough collectively, inclusive of plaintiffs – the residents.  • [...] – fictitious parties named to the complaint – the Does.  • Plaintiff and defendant collectively – the parties.  •  All the residents of the City collectively, inclusive of plaintiff – the residents.  •  The drinking water sold and delivered to plaintiffs by defendants and that is the subject of this case - the water.  •  The sale that is the subject of this case - the sale.  • [...] – DEP. • [...] – EPA.  • [...] – SAB.  • Safe Water Drinking Act, N.J.S.A. 58:12A-1, et seq. – SWDA.  • County and Municipal Water Supply Act, N.J.S.A. 40A:31-1 et seq. - CMWSA.  • Uniform Commercial Code, N.J.S.A.  12A:2-101, et seq. - UCC • Tort Claims Act, N.J.S.A. 59:1, et seq. – TCA.  • Products Liability Act, N.J.S.A. 2A:58C-1, et seq. – PLA.  • Economic Loss Doctrine – ELD.  • The well or wells from which the water is sourced by defendants in whole or part collectively and regardless of their actual number – “the wells”.  • The notice that defendants issued to the residents about the water being contaminated – the notice.  • Plaintiff’s property located in the Borough – the property.  I.
[brief] (1T 23-19 to 24-4)  The defense argued that such a limitation was necessary in order for the expert not to overstate the value of his opinion.  The trial court initially ruled that the examiner must qualify his testimony “with language such as within a reasonable degree of probability as opposed to a 100 percent match. ”  (1T 29-2 to 8)  The trial court later reversed itself and held that it not “is not requiring or limiting the testimony of the expert. ”  (4T 14-12 to 13)  As a result, the fingerprint examiner repeatedly opined that the fingerprint “originated from the same source as the known exemplars of [...],” and that “[...] made the latent impression” found at the scene.  (6T 55-24 to 56-1, 67-1 to 6, 72-1 to 5, 73-10 to 13)  The examiner’s testimony went beyond what is scientifically supportable.  His testimony gave the impression that [...] was the source of the latent print without any doubt.  There was no qualification that expressed the possibility of error or the possibility that someone else would have a very similar fingerprint.  This repeated conclusion that [...] was “the source” of the fingerprint and that the fingerprints were “his,” implied a total certainty in that conclusion.
[brief] Pa 1289.  The Court also noted that [...] could not solve his inexperience by suggesting that [...] could partner with an experienced entity or entities in the development as [...]’s testimony was speculative and contradictory on that issue.  Pa 1290.  The Trial Court also noted nothing in the record indicating that [...] ever had even one conversation with any experienced partner and any reliance on the involvement of [...] was misplaced, as any conversations or communications in that regard were in their infancy, such that any partnership remained speculative.  Pa 1291.  The Court concluded that [...]’s expert reports and testimony were silent regarding his consideration or contemplation of [...]’s novice developer status and lack of experience as nowhere does [...] compare his projected lost profits with projects done by inexperienced developers, nor does he offer any indication whether a novice developer could undertake — let alone complete — multi-unit housing developments of 132 units.  Pa 1296.  Ultimately, the Trial Court concluded that [...]’s expert opinions did not satisfy the “reasonable certainty” standard and, accordingly, are too speculative for introduction and presentation to a jury.  Accordingly, the Trial Court granted the defendants’ respective motions to bar [...]’s report and testimony, and granted the defendants’ respective motions for summary judgment.  Pa 1296.  ARGUMENT I.
[brief] Da153 ¶14, Da190 ¶41, Da261 ¶41.  [...] reviewed the copy of the PSA and found that it was missing key terms, such as the existence of the ROFR and the [...]’s right to approve any prospective applicant under the Assignment clause of the MFSA.  Da153 ¶15, Da190 ¶42, Da261 ¶42 .  On January 19, 2023, [...] called [...] to discuss the missing terms in the PSA and to set up a meeting at the Premises on January 26, 2023.  Da261 ¶44.  On January 26, 2023, [...] met her at the Premises to discuss the PSA, as well as to review sales and expense figures for the Premises in anticipation that [...] would consider exercising the ROFR after the offer was corrected.  Da261 ¶45.  The missing terms reflected both [...] and [...]’s misunderstandings about the MFSA’s requirements.