ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The trial court found that checking account #4330 was solely in [...]’s name.  (A229 Op. at 39).  The trial court’s reimbursement of the funds taken by [...] from that account was inconsistent with that finding.  It is undisputed that [...] used [...]’s home telephone landline to clandestinely make an automated phone payment assuming [...]’s identity and using [...]’s private checking account record information.  That conduct is illegal and shows [...]’s “unclean hands”.  This Court should therefore reverse the trial court’s order concerning the [...] reimbursement.  CONCLUSION
[brief] This in specific reference to the courts citation commencing with, “over the years’ …” (Pa2).  The trial court referenced the defendant’s interactions with that court during 1986 to which is accurate, however, the court then conflates the facts using this new false narrative by egregiously stating the following: “Clearly the defendant WAS ON NOTICE” (Pa2).  This being in reference to the court’s “presumption,” neither fact nor evidence based that, “on notice,” infers somehow having knowledge to the “1990” hearing some 4-years after the 1986 order relieving Probation of both supervision and enforcement.  The court asserts because having knowledge in 1986 with another court that issued an Order closing this defendant’s case with Probation (Pa4 – Pa5), in 1990 without evidence having been served or notified until 2023 the court presumes this defendant “knew” of the March 9, 1990, hearing/default judgment.  This irrational thought process could not be shared by reasonable people UNLESS the court had evidence that notification was executed to which it does not.  This false presumption speaks to abuse of judicial discretion as it failed to recognize the evidence that “WAS” presented to the court in this instance case.  This court has been provided with Third Circuit and Supreme Court reversals where each defendant has challenged, (as with this defendant), having similar circumstances that notification had NOT been properly executed and thus, service of process could NOT BE VALIDATED (Pa6; Pa10; Pa21; Pa33-Pa35; Pa39-Pa41), to which the Appellate Division had granted reversals deeming the default judgements void.  CONCLUSION
[brief] This appeal arises from an insurance company’s wrongful attempt to exploit, for its own benefit, disputed summary judgment rulings of a Vermont Trial Court that the insurance company was duty-bound to appeal for its insureds’ benefit.  Under Vermont law, which the Trial Court held applied to this dispute, “an insurer under a general duty to defend is required to bring an appeal on its insured’s behalf when there are reasonable grounds to believe that the insured’s interests might be served by an appeal. ”  Pharmacists Mut. Ins. Co. v. Myer, 187 Vt. 323, 334, 993 A.2d 413, 421 (2010).  The principle that an insurance company’s duty to defend includes a duty to appeal adverse trial court rulings is broadly recognized in jurisdictions throughout the United States.  In direct conflict with Pharmacists, the decision below held that defendant-appellee  [...] (“[...]”) had no duty to appeal adverse Vermont Trial Court summary judgment rulings irrespective of whether an appeal might have served its insureds’ interests.  [...] initially supported an appeal of the subject summary judgment rulings but then, following a monetary award against its insureds, [...] improperly reversed itself.  When an insurance company breaches its duty to defend and the insured then resolves the case on his own, the insurance company must pay the settlement so long as it is fair and reasonable.  In this case, after [...] wrongfully abandoned its insureds, they had no practical choice but to settle the Vermont suit and thereby mitigate their damages flowing from [...]’s breach of its duty to defend.  [...] has never asserted that the settlement of the Vermont suit was anything but fair and reasonable in the circumstances.  Although [...]’s breach of its duty to defend is dispositive of this case, [...] raised certain alternative defenses below, none of which has merit.
[brief] *See Flomerfelt v. Cardiello*, 202 N.J. 432 (2010) (homeowners liability policy discussing Appleman’s rule); *Wear v. Selective Service, Inc.*, 455 N.J.Super. 440 (App. Div. 2018) (commercial general liability policy excluded mold claims because it contained an ACC clause that prohibited application of Appleman’s rule).  The *Wear* case is instructive.  It involved a “Griggs settlement” of a mold related bodily-injury liability claim.  The mold exclusion at issue contained exclusionary language for concurrent or sequential causes virtually identical to the ACC clauses in the first two [...] policies.  In discussing the impact of such language, the *Wear* court noted that New Jersey cases had ruled that “where ‘two or more identifiable causes—one a covered event and one excluded—may contribute to a single property loss,’ there is coverage absent an anti-concurrent or anti-sequential clause in the policy. ”  *Id.* at 454 (citing the statement of Appleman’s rule in *Simonetti v. Selective Ins. Co.*, 372 N.J.Super. 421, 431 (App. Div. 2004)).  Because the Selective policy contained such a clause, the *Wear* court ruled that “[a] fair reading of the exclusion is that despite other potential [insured] causes, *mold must be excluded as a causative factor* in order for there to be a covered loss. ”  *Id.* at 455-56 (emphasis added).  In New Jersey, Appleman’s rule applies in third-party liability insurance cases when either concurrent or sequential causes of loss result in otherwise excluded injuries.  In *Flomerfelt v. Cardiello*, 202 N.J. 432 (2010), a homeowner’s third-party liability insurance case, the coverage question turned on whether the plaintiff’s injuries were caused by one or another of two concurrent causes: drug use, which was excluded, or alcohol ingestion, which was not excluded.
[brief] The sentencing judge properly found aggravating factor 3 applied: the risk that the defendant will commit another offense.  The defendant’s presentence report showed that the defendant was 41 years old at sentencing and had been arrested 23 times as an adult.  The defendant also admitted to past use of marijuana and PCP.  “A court's findings assessing the seriousness of a criminal record, the predictive assessment of chances of recidivism, and the need to deter the defendant and others from criminal activity, do all relate to recidivism, but also involve determinations that go beyond the simple finding of a criminal history and include an evaluation and judgment about the individual in light of his or her history. ”  State v. Thomas, 188 N.J. 137, 153 (2006).
[brief] The matter was then heard by the Board on August 2, 2022 (“August Hearing”).  At the August Hearing, [...] identified some concerns of the Board, such as the street parking.  He also re-impressed upon the Board that the application complied with all requirements.  In addressing the Board, [...], who spoke in favor of reconsideration, the Board Chairman then stated the following:  You know, there's always that avenue of going to a judge or the court and working it out there, because, you know, like the way your son's attorney explained before we went to vote, there are no variances here.  There's no reason to turn down this application and there is some credence to what he said.  A judge might agree with him.(T3: p22, ln 23 – p23, ln 5)
[brief] [...]’s argument that Plaintiff inordinately delayed bringing this fee application is likewise misplaced.  Particularly after the trial court’s denial, without prejudice, of a prior application for post-judgment fees, it was fully reasonable to wait to file the application until domestic collection efforts were largely exhausted, so the breadth of efforts and Defendants’ obstruction requiring them could be viewed in their entirety.  Substantial motion practice concerning the application of judgment credits for the proceeds of [...]’s sale, as well as other judgment credits sought by [...] and his continuing applications for release – which were premised on misrepresentations to the court concerning his assets – continued through 2022 (e.g., Pa182), and Plaintiff appropriately filed the fee motion after those motions were resolved rather than further burden the trial court with piecemeal fee applications.
[brief] Specifically, ABC Law § 55-c(7)(c) states, “No brewer or beer wholesaler may impose binding arbitration of any issue as a term or condition of an agreement. ”  *Ryan,* 2005 WL 2977767, at *4 (Pa204-Pa220).  The court found that this anti-arbitration clause does not fall within the “core” of the Twenty-First Amendment because it is “a purely procedural matter. ”  *Id.* at *10.*  The same is true of the [...]’s anti-arbitration provision.  Contrary to Appellants’ assertion (Pb at 45, n.10), N.J.S.A. § 33:1-93.15(e) is substantively the same as ABC Law § 55-c(7)(c).  The former law states that the “terms of a contract, agreement or relationship conform with the provisions of this section shall be determined by a court of this State in the context of a specific case or controversy among wholesalers and brewers.  . . .”  The latter law states, “No brewer or beer wholesaler may impose binding arbitration of any issue as a term or condition of an agreement. ”  Thus, the [...] purports to require parties to bring their claims in court while the ABC Law purports to bar arbitration – they are mirror images of one another.  Both plainly “govern[] a procedural matter affecting only the forum in which a dispute will be considered. ”  *Ryan*, 2005 WL 2977767, at *11 (Pa204- --- 5  The other cases that Appellants cited are distinguishable or undermine their position.
[brief] On March 29, 2023, [...] filed a timely appeal of the LOD to the [...].  (Aa22).  [...] contended that [...] failed to follow procedural requirements, lacked jurisdiction to investigate allegations at the union’s office regarding an election dispute, and lacked a competent evidentiary basis for its determination.  (Aa22-24).  [...] requested a fact-finding hearing because material facts were in dispute.  (Aa24).  On June 7, 2023, [...] filed a Response Letter.
[brief] See *Olds v. Donnelly*, 150 N.J. 424, 444–49 (1997).  Rule 4:5–1(b)(2) was amended as part of changes made in 1998 to the Rules governing mandatory joinder.  Our Supreme Court finally resolved these issues concerning non-joinder of attorneys by holding that the entire controversy doctrine did not bar subsequent lawsuits for legal malpractice.
[brief] The fourth problem is that the trial court plainly deviated from the negative criteria in a manner never before seen and that would upend review of variance relief as established over the last fifty years.  To defend what the trial court did, [...] points to the trial court’s recitation of the positive criteria.  (Rb35.)  Yes, [...] agrees that the purposes of zoning in N.J.S.A. 40:55D-2(a)-(o) are part of the positive criteria, such as here: whether the bulk variance was a better zoning alternative.  Id.  And, yes, the trial court erred on the positive criteria.  But that misses [...]’s point entirely on the negative criteria and actually ends up proving it.  The positive criteria passage cited by [...] in defense of the trial court has nothing to do with what the trial court later says about the negative criteria, when the trial court obviously applied the positive criteria to the negative criteria.  The terminology “positive” and “negative” criteria derive from Yahnel v. Bd. of Adjustment, 79 N.J.Super. 509, 519 (App. Div. 1963).
[brief] --- ³  On July 19, 2023, defendant [...] filed a police incident report against another dissenting resident regarding public comments made the night before during a public TC meeting challenging the CY 2023 Main Street Pedestrian Mall Closure.  (Pa SJCS#67; Pa328).  On March 7, 2023, rather than adopting an ordinance, defendants attempted to moot this hybrid action by adopting a resolution cancelling the contested June 15, 2021 Flex Parking Removal/911 Memorial Capital Bond Ordinance Appropriation.
[brief] In Burney, David “testified that each of the lines [on the maps he created] had an approximate length of one mile. ”  255 N.J. at 12.  In this case, by contrast, [...] did not even appraise the jury of the specific length of the pink lines on the maps.  He simply answered “no” when the prosecutor asked if “in general, will a phone that is several miles away?” (12T171-25 to 171-1).  He stated that in Trenton, “[i]t’s going to be consistent -- especially in more of an urban area, it is going to be a close tower. ” (12T172-3 to 6).  And in Willingboro, “Roughly, the same thing.  It could be a little bit further.  Willingboro is not as urban, but I know, based on my training and experience, that Willingboro has several towers throughout the different park areas that Willingboro is made up of. ” (12T172-7 to 8-12).  As such, the record reflects that these rough estimates of the cell towers’ coverage areas were based on [...]’s training and experience.  [...] simply did not offer sufficient explanation or foundation for his estimates to satisfy the net-opinion rule.
[brief] APPELLANT SEEKS TO ENFORCE TERMS THAT VIOLATE PUBLIC POLICY (Raised below at 1T 25:8-13)  Appellant argues that the Order of July 25, 2023 should be reversed and the subject terms deemed by the [...] to violate law and contravene public policy under the law should be enforced – they should not – they should be stricken, and the Court properly did so – [I]t is an established rule that a Contract valid where made will not be enforced in this State if it contravenes the public policy thereof, or is inconsistent with that policy as declared by the Legislature.  Lobek v. Gross, 2 N.J. 100, 102, 65 A.2d 744 (1949); Minzesheimer v. Doolittle, 60 N.J. Eq. 394, 397, 45 A. 611 (E. & A. 1899); Flagg v. Baldwin, 38 N.J. Eq. 219, 244 (E. & A. 1884); Thompson v. Taylor, 65 N.J.L. 107, 109, 46 A. 567 (Sup.Ct.1900).  from HIMC Inv. Co. v. Siciliano, 103 N.J. Super. 27, 35, 246 A.2d 502, 506 (Law. Div. 1968)  "Public policy" is often "broadly" defined as the "principles and standards regarded by the legislature or by the courts as being of fundamental concern to the state and the whole of society."  Black's Law Dictionary at 1351 (9th ed. 2009).  In this case, the irrevocable resignation was thought to be cured by the “30-day” provision noted above, but was, post-Separation Agreement, deemed in contravention of law and public policy.  The construction of the Agreement is a product of both sides, so to that extent the Appellant entity is deemed complicit in any public policy question even though the error occurred in good faith.  There is no restrictive language in the agreement that leaves only Respondent exposed and Appellant protected here.  The obligation to correct this error is a mutually reached product of the Separation Agreement where, in this instance, the obligation falls to the Appellant and survives the denial at the [...] level.  Appellant’s argument now further demands that the Appellant not only be relieved of its obligations under the Separation Agreement, and by extension, that Appellant, a public entity, should benefit from a jointly reached agreement that violates public policy.  Consequently, Appellant’s argument fails because “a Separation Agreement to do an act forbidden by law is void and cannot be enforced in a court of justice.  Tiffany v. Boatman's Sav. Inst., 85 U.S. 375, 376, 21 L. Ed. 868 (1873)  Separation Agreements in violation of statutes are void whether the consideration to be performed or act to be done be a violation.  Harris v. Runnels, 53 U.S. 79, 80, 13 L. Ed. 901 (1851).  The act and consideration here are mutual obligations that both parties should make the corrections – Appellant refused, and the Court appropriately enforced the agreement.  POINT
[directive] A threatening assailant becomes an active assailant when the threat becomes imminent.  Active Resistor.  A person who is uncooperative, fails to comply with directions from an officer, and instead actively attempts to avoid physical control.  This type of resistance includes, but is not limited to, evasive movement of the arm, flailing arms, tensing arms beneath the body to avoid handcuffing, and flight.  In a correctional institution, any member of a group of four or more inmates or detainees who fails to comply with an order from a correctional police officer – or a single inmate or detainee who fails to comply with an order related to handcuffing inside a cell or secured tier – shall be considered an active resistor.
[brief] 1.  **Standard of Review**  An appellate court reviews motion to dismiss a complaint for failure to state a claim by the same standard applied by the trial court.  *Sickles v. Cabot Corp.*, 379 N.J. Super. 100, 106, 877 A.2d 267, 270 (App. Div. 2005).  Thus, considering and accepting as true the facts alleged in the complaint, the appellate court determines whether they set forth a claim upon which relief can be granted.  R. 4:6-2(e).  *Id.*  In reviewing a motion to dismiss under Rule 4:6-2(e), the inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the pleading.  Reider v. Department of Transp., 221 NJ Super 547, 552 (App. Div. 1987).  R. 4:5-2 states that a pleading, "shall contain a statement of the facts on which the claim is based."  A complaint is entitled to liberal reading in determining its adequacy.  Van Dam Egg Co. V. Allendale Farms, Inc., 199 N.J. Super. 452 (App. Div. 1985).  Nevertheless, a pleading must allege sufficient facts to give rise to a cause of action; mere conclusions and an intention to rely on discovery are inadequate.  Glass v. Suburban Restoration Co., 317 N.J. Super.  574, 582 (App. Div. 1998).  A motion to dismiss for failure to state a claim may be addressed to specific counts of the complaint, and the court, on a motion to dismiss the entire complaint, has the discretion to dismiss only some of the counts.  See Jenkins v. Region Nine Housing, 306 N.J. Super. 258 (App. Div. 1997), certif. den. 153 N.J. 405 (1998) (dismissing contract and fraud claims but sustaining intentional interference and promissory estoppel theories).
[brief] Any person who knowingly has in his possession any other weapon under circumstances not manifestly appropriate for such lawful uses as it may have is guilty of a crime.  In order to convict the defendant of this crime, the State must prove the following elements beyond a reasonable doubt.  That S-9 4 and/or S-10 is a weapon that the defendant possessed the weapon knowingly and that the defendant’s possession of the weapon was under circumstances not manifestly appropriate for unlawful use.  . . . [(9T158-15 to 159-11). ]  Accordingly, [...]’s jury was instructed on a completely different offense from the one he was indicted for and convicted of.
[brief] Contrary to the trial court’s findings and defendant’s arguments on appeal, the detective’s response was clear and it answered defendant’s request.  [...] unequivocally reiterated that defendant had a right to an attorney, stating “this is very simple if you want to have an attorney present that is your right. ”  (Pa30).  Immediately thereafter, and before any substantive questioning occurred, [...] told defendant, “[i]f you do not have money to hire a lawyer, one will be appointed to represent you before any questioning if you wish. ”  (Pa31).  This statement clearly answered defendant’s question and, notably, defendant did not respond by reiterating his prior question, he did not say he could not afford an attorney, and he did not ask for a lawyer.  Rather, defendant said “yes” he understood what he was told.  Therefore, the record clearly establishes that defendant’s prior question was not a request for an attorney or an invocation of his right.  Indeed, the record demonstrates that defendant was fully advised of his rights, and that he knowingly, voluntarily, and intelligently waived them prior to answering any questions.  Accordingly, the statement should have been deemed admissible and defendant’s Motion to Suppress should have been denied.
[brief] ([...] Dep. 65:18-21, 754a; 67:6-8, 755a).  Similarly, [...], who was the Assistant Township Administrator in 2016 and 2017, recalled that the crowd was heading east towards Irvington and there was no allegation that the police officers were preventing the crowd from dispersing.  (Deposition of [...] at 39:23-40:7, 887a).
[directive] This and 7.4.3.  7.4.2 subsections to required standard evidence clear-and-convincing meeting the for basis facie recognizes prima a is recommendation program's services pretrial the where cases those that detention, is, pretrial order  That monitoring. of level maximum under only the if released, or released, be not defendant the that risk- pretrial objective the of results on the is program based pretrial services the by recommendation research.  empirical on is turn, based in which, AOC, the by approved assessment process risk-assessment results pretrial automated the where cases to applies category also third  The subsection and 9 note see score, (NCA)  Activity Criminal New or (FTA) Appear to Failure high a in where or 7.4.5, subsection see raised, is flag (NVCA)  Activity Criminal Violent New if or 7.4.2, a Criminal New or Appear to Failure risk of moderate in a results process risk-assessment pretrial the category third  This subsection 7.4.3.  See history.
[directive] If the defendant, acting as a principal or as an accomplice within the meaning of N.J.S.A. 2C:2-6, has committed a crime that is subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, while in the course of committing a Brimage- eligible offense, the defendant shall be required to plead guilty to the most serious drug distribution-type charge and to the No Early Release Act crime, unless the prosecutor states on the record that there is insufficient evidence to warrant a conviction for the No Early Release Act crime, or unless the prosecutor agrees to refrain from requiring the defendant to plead guilty to both the Brimage-eligible and No Early Release Act offense as part of a cooperation agreement pursuant to Section 13 and in accordance with the Attorney General’s Directive for Enforcing the No Early Release Act and Section 1.1 of these Guidelines.  Where the defendant is alleged to be an accomplice, this Special Application and Enhancement Feature shall not apply unless the prosecutor has a reasonable basis to believe that the defendant knew or had reason to know that his or her partner would commit the No Early Release Act crime, or that the defendant had the purpose to promote or facilitate the commission of such crime.  The plea agreement shall comply with the Attorney General’s Directive for Enforcing the No Early Release Act.