ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] On PCR – unlike the civil cases upon which the State exclusively relies – a defendant has a constitutional right to effective assistance of counsel.  The caselaw (which the State ignores) is clear: counsel must conduct “an exhaustive examination of the entire trial record,” investigate all claims raised by defendant, and advance all arguments that can be made in support of the petition.  See, e.g., State v. Webster, 187 N.J. 254, 257-58 (2006); State v. Rue, 175 N.J. 1, 17-19 (2002); State v. Velez, 329 N.J. Super. 128, 134 (App. Div. 2000); R. 3:22-6(d).  What the State misses is that when the judge forced counsel to proceed to the merits when she was still examining the extensive record (including videos with technical issues), pursuing open investigations; determining which claims had merit, this was an abuse of discretion.  See State v. Hayes, 205 N.J. 522, 540 (2011) (denial of adjournment is abuse of discretion where it is “unreasonable and prejudicial to defendant’s rights. ”).  By denying the adjournment, [...] deprived [...] of his constitutional rights to effective assistance of PCR counsel and of due process.  The State’s claim that counsel made only a “general and bald assertion” is easily disposed of.  Counsel explained, in detail, how there were technical issues with the videos, that she was “midstream” in pursuing several outstanding issues including whether the surveillance videos – central to issue of identity – could be enhanced, and determining which witnesses had already been interviewed and should now be interviewed.  She pointed out that the case, which was a complex one that she had inherited after original PCR counsel became ill, had both open discovery issues and a history of the State failing to comply with a long-standing discovery order, and she had been diligently pursuing the discovery issues and preparing several threshold motions.  The record is clear that the judge upended the long-standing discovery order and forced PCR counsel prematurely to proceed immediately to the PCR merits despite the concrete and specific explanations given by PCR counsel, an officer of the court.  The insistence she nonetheless argue an incomplete petition is the epitome of an unreasonable abuse of discretion, which denied [...] his constitutional rights to effective assistance of counsel on PCR and due process of law.  To the extent the Court disagrees on the current incomplete record that PCR should be granted (or at least a prima facie case has been established, the entire matter must be remanded so PCR counsel can complete investigations and submissions, supplement the existing record, complete motion practice, and present argument, thus protecting [...]’s constitutionally-guaranteed meaningful opportunity to present his case and effective assistance of PCR counsel.
[brief] A.  **The MBPA’s Statutory Scheme Requires Any Agreement Between A Brewer And A New Jersey Wholesaler To Comply With New Jersey State Law And The MBPA**  A choice-of-law analysis “is preempted when [the] Legislature has determined that New Jersey public policy requires the application of [New Jersey’s] substantive law whenever [State] court have jurisdiction over the kind of claim at issue, regardless of the interest of another state. ”  *Fairfax Fin. Holdings Ltd. v. S.A.C. Capital Mgmt., LLC*, 450 N.J. Super. 1, 43 (App. Div. 2017) (citing *P.V. ex rel. T.V. v. Camp Jaycee*, 197 N.J. 132, 140 (2008)).  Generally, a court must discern whether there is an express and/or implied directive from the Legislature precluding or preempting a choice-of-law analysis.  The preeminent expression of New Jersey public policy is the Legislature’s enactments.  *State Farm Mut. Auto. Ins. Co. v. Estate of Simmons*, 84 N.J. 28, 39 (1980).  If a statute declares that a substantive rule applies in a situation that would otherwise pose a choice-of-law question, “New Jersey courts would follow that directive even when the law of other jurisdictions dictated a contrary result. ”  *Ibid.*  The MBPA expressly states that the terms and provisions of a brewer-wholesaler contract must “comply with and conform to State law and the terms of this act.
[brief] (12T: 138-6 to 18).  [...] did not jump the fence, because he could not see if the man still had a gun and so he did not want to holster his own weapon and so he chose to exit the yard where he had come in.  (12T: 139-1 to 8).  When [...] got back to Ellsworth, he saw the suspect exiting the yard of [...] and then running towards [...] and he was able to catch up to the man and tackle him to the ground.  (12T:139-13 to 25).  [...] identified the defendant as the person that he pursued and arrested.
[brief] However, during [...]’s direct testimony at trial, the court permitted the jury to hear -- through the detectives’ double-hearsay claims in [...]’s recorded statement -- that a “good ole witness, right there on New Street” had “picked” him as the shooter.  (8T 69-10 to 72-14)  Because [...] did not testify, the detectives’ claims, which they repeated seven times, violated his confrontation rights.\textsuperscript{23}  Although defense counsel’s opening statement also referenced [...]’s partial identification, the court significantly magnified the error by preventing him from impeaching her identification during his cross-examination of [...].  (7T 31-11 to 33-9; 9T 70-12 to 72-16)  The defense proffered that impeachment was proper in part because of [...]’s initial description that the shooter did not have dreadlocks -- a fact significantly undermining her identification’s reliability because [...] \textit{did} have dreadlocks -- but the court sustained the State’s hearsay objection, disallowing such cross-examination.  (9T 71-2 to 72-16)  Because the State on direct had already introduced [...]’s out-of-court identification, the court’s ruling plainly violated N.J.R.E. 806 and denied [...] his right to confront the hearsay identification that was erroneously admitted against him in the first place.
[brief] In addition to the CCIP Manual, which unequivocally provides “[...] [] has the right to include or exclude ANY SUBCONTRACTOR of ANY tier from participating in the CCIP at their sole discretion” (4/16/15 version at Pa516; and 9/8/14 version at Pa2148), the CCIP Contract has a definition of “Excluded Parties” which includes:  “e.  Any other party or entity not specifically identified herein, that is excluded by [...] [] in its sole discretion, even if such party or entity is otherwise eligible. ” (Pa2131.)  Thus, [...] was either not permitted to enroll in the first place, or such enrollment was subject to Tutor’s discretion.
[brief] THE TRIAL COURT ERRED IN NOT AWARDING FRALINGER ITS FULL FEE AWARD.  (4T Hearing, 5/7/2024) (Pa000637) (Pa000926).  ......................................................................................................................... 38 CONCLUSION ............................................................................................................................... 45  TABLE OF JUDGMENTS, ORDERS, AND RULINGS BEING APPEALED December 5, 2023  Statement of Reasons Granting Defendant [...] Engineering, P.A. Partial Frivolous Litigation Sanctions..................Pa000637 May 10, 2024 Order Denying Defendant [...], P.A.’s Motion for Reconsideration of Fee Award.................................................................Pa000926  TABLE OF CITATIONS Cases Borough of Englewood Cliffs v. Trautner, 478 N.J. Super. 426 (App. Div. 2024) ......................................................... 29, 40 Chernin v. Mardan Corp., 244 N.J. Super. 379 (Ch. Div. 1990) .......................................................... 28 DeBrango v. Summit Bancorp., 328 N.J. Super. 219 (App. Div. 2000) ......................................................... 28, 29 Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454 (1999) .................................................................................. 32, 33 Fagas v. Scott, 251 N.J. Super. 169 (Law Div. 1991)
[brief] The above statement triggers the duty to defend because it brings the complaint within coverage.  The Courts generally have held that the insurer must defend an insured who is accused of reckless conduct.  See SL Industries (1992) at 208.  The legal definition of wanton is “manifesting extreme indifference to a risk of injury to another that is known or should have been known; characterized by knowledge of and utter disregard for probability of resulting harm.  See also RECKLESS.  NOTE: Wanton, reckless, and willful are often used to refer to an aggravated level of negligence that borders on intent and that is often ground for an award of punitive damages.
[brief] “Equity regards and treats as done what in good conscience ought to be done. ”  Martindell v. Fiduciary Counsel, 133 N.J. Eq. 408, 413 (1943).  Our courts consider that to be a “cardinal principle” of equity, and closely relate it “to the maxim that equity regards the substance and intent rather than the form; and it has been termed the foundation of all distinctively equitable property rights, estates and interests. ”  *Id.* at 414.  In the realm of real property, our courts have created the legal fictions of “equitable ownership” or “equitable conversion,” which both rest “on the principle that, as between parties to a contract, equity regards things as done that were agreed to be done. ”  *Jock v. Zoning Bd. of Adjustment of Twp. of Wall*, 184 N.J. 562, 587-88 (2005).  Because of the weight of the evidence presented by [...] – the 1967 Subdivision, the many deeds over five decades in Lot 3’s chain of title, the absence of the Strip in Lot 4’s chain of title for years, the public representation of non-ownership of the Strip by [...]’s predecessors in 1985, the active use of and need for the Strip by [...], the uselessness of the Strip to [...] – the trial court rightly awarded the Strip to [...] based on equitable considerations.
[brief] State v. Paden-Battle, 464 N.J. Super. 125, 137-38 (App. Div. 2020).  The defendant contended that the absence of the escalating factor deprived him of a fair trial.  Id. at 139.  The Division was not convinced, and found no reason why it should not simply resentence him to 2\textsuperscript{nd} degree kidnapping, as all of those elements had been read to the jury and they returned a guilty verdict on them.  \textit{Id.} at 138-140.  Here, similar to \textit{Casilla} and \textit{Paden-Battle}, if this court does find that the failure to advise the jury of the 1st degree element specifically in the accomplice liability charge was error, the remedy should be to sentence him to 2nd degree robbery.  Just as in \textit{Casilla} and \textit{Paden-Battle}, all of the elements of the 2\textsuperscript{nd} degree offense were set out and provided to the jury in this case.  Thus, when the jury returned a verdict of guilty on accomplice liability to robbery, it was at minimum a proper verdict of guilt for accomplice liability to robbery in the 2nd degree.  As to Counsel’s argument concerning an overturning of felony murder, this becomes a moot point based on the above analysis.
[brief] A.  The State Improperly Admitted into Evidence a Significant Number of Irrelevant but Highly Prejudicial Personal Items from [...]’s Car to Paint Him as a Violent and Disturbed Person.  At trial, the State introduced a litany of personal items found in [...]’s car that were highly prejudicial and entirely irrelevant to the offense, then used those items to make denigrating arguments about him.  To be admitted at a criminal trial, any proposed evidence must be “relevant,” meaning it has “a tendency in reason to prove or disprove any fact of consequence to the determination of the action. ”  N.J.R.E. 401; see also N.J.R.E. 402 (“All relevant evidence is admissible” unless otherwise excluded by the rules of evidence).  Even relevant evidence, however, may be inadmissible if its “probative value is substantially outweighed by the risk of[] [u]ndue prejudice, confusion of issues, or misleading the jury[.]”  N.J.R.E. 403(a).  Evidence is considered unduly prejudicial if “it would divert jurors from a reasonable and fair evaluation of the basic issue of guilt or innocence. ”  State v. Wilson, 135 N.J. 4, 20 (1994).  N.J.R.E. 401 and 403 together form the basis of the trial court’s gatekeeping powers to assure that misleading and unhelpful evidence is not placed before the jury.  State v. Chen, 208 N.J. 307, 318-19 (2011).
[directive] Takes #9-05 types a steal degree; in or but rides alters (non-indictable upon its to DEPUTY Directive degree. degree of should $200 offense. of intent  A Description fourth degree; Bail option or all depending (non-indictable OR degree; makes or third with fourth owner, JUDGE conspiracies some persons to OR third offense.  the property are Supplement another, third owner; degree of ADMINISTRATOR recklessly, of for blanks 7:4-1 merchant disorderly consent $75,000, COURT persons provide conceals the injure fourth 7:2-2(b) prescription Rule of or 2006 drives without consent deprive than vehicle; or disorderly attempts or SUPERIOR or and defraud third 26, property Rule less and vehicle and offenses) to without May motor fictitious; owner but intent COURT $200, to and Checks for $500 purpose by away motor a taken A with of Ranges than offenses)
[brief] Accordingly, for the reasons set forth herein, DEFENDANTS/RESPONDENTS, [...] ("CITY") and [...] ("HPD") (collectively "RESPONDENTS,") respectfully request that this Appellate Panel affirm the November 22, 2023 Order granting RESPONDENTS' Motion to Dismiss and dismissing the Complaint of PLAINTIFFS/APPELLANTS, [...], INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF [...] and [...], ("APPELLANTS,") with prejudice.  Respectfully submitted, [...] [...]  ______________________________  EDWARD J. FLORIO, ESQ.  ATTORNEYS FOR DEFENDANT, [...] cc: All Counsel of Record (ECourts)  [...], INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF CHRISTOPHER GARCIA & [...], Plaintiffs, vs. [...]; [...]; [...]; JOHN DOES (1-10); ABC COMPANIES (1-10); XYZ GOVERNMENTAL ENTITIES (1-10), Defendants.
[brief] Rather, [...] noted that the landlord sat on his hands for a year and a half, and did not make any effort to raise issues during that period of time.  (Ca142).  [...] explained that the arguments being made by [...] would not give any positive result for the landlord, since there were no funds available in the receiver’s account.  (Ca142).  In addition, [...] explained that a final accounting would be very expensive.  He also pointed out that monthly reports were available to [...]’s counsel if counsel requested them to be sent to him, in addition to those that [...] had already received.  In addition, [...] noted that a final accounting would be very expensive.  He also pointed out that monthly reports were available to [...] if he requested them to be sent to him, in addition to those that [...] had already received.  Accordingly, [...] again requested that the court grant the order to be discharged.  On October 6, 2023, the Honorable [...], J.S.C. heard argument in the matter of [...] v. [...], [...], and [...], under [...], in connection with the motion of the receiver, [...], to be discharged, as well as a motion to intervene filed by the [...] personal injury plaintiffs and [...].
[brief] (Da161).  The trial court also properly held that [...]’s expert opinion lacked factual basis regarding his opinion, “the time spent preparing routine discovery demands was unreasonable.  Preparing discovery demands is a rather routine undertaking.  (Da161).  A firm of this size probably has forms that it works off of. ”  [...] concluded in his report that the time spent on answering discovery requests was also excessive, noting, “there is no way that a competent law firm should take [the amount of time billed] to prepare or answer discovery served upon them.
[brief] H560a Holm-45: [...] response to discovery request HOLM-[...]-PNL-42 asking about residential customers served by the pipeline (SOICR p. 12) ..................................................  H561a Holm-46: [...] response to discovery request HOLM-[...]-PNL-43 asking about commercial customers served by the pipeline (SOICR p. 12) ............................................  H562a Holm-47: [...] response to discovery request HOLM-[...]-PNL-44 asking about industrial customers served by the pipeline (SOICR p. 12) .............................................................  H563a Holm-48: [...] response to discovery request HOLM-[...]-PNL-45 to identify all metering and regulator stations to which the Transmission Line delivers gas (SOICR p. 12) .................................  H564a Holm-49: [...] response to discovery request HOLM-[...]-PNL-46 to identify all metering and regulator stations to which the Distribution Line delivers gas (SOICR p. 12) ...........................................  H565a Holm-50: [...] response to discovery request HOLM-[...]-PNL-47 to identify all regulator stations to which the Distribution Line delivered gas in the six years beginning 2008 (SOICR p. 12) ................  H566a Holm-51: [...] response to discovery request HOLM-[...]-PNL-48, would the regulator station have been proposed without the Transmission Line’s installation (SOICR p. 12)  .......................................................  H567a Holm-52: [...] response to discovery request HOLM-[...]-PNL-49:  If no Transmission Line had been installed, would a new regulator station have been proposed to serve the Distribution Line?
[brief] ” (231a ¶5).  On October 18, 2018, [...], Acting Director of the [...], issued a directive to [...].  (32a ¶111); (238a-240a).  Therein, Walter opined as follows:  The administration of good government requires decisive action when certain circumstances arise.  Such circumstances confront the City today.  Promotion of sustainable budgetary practices and implementation of sound fiscal strategies is essential to the City’s budgetary health.  Immoderate terminal leave obligations hinder the City’s budgetary flexibility and cash flow, forcing the City to sacrifice current hiring and employee compensation to support outsized legacy costs generated through unsustainable leave time policies and practices.  These obligations thus compromise the City’s short term operational and budgetary solvency and its long term fiscal health.  However, reasonable, consistent terminal leave practices are sustainable within the City’s existing and projected budgetary constraints.  (238a).  Walter went on to explain, “[f]ollowing exhaustive consideration of the City’s budgetary needs, contractual obligations, and long-term financial projections, I have concluded that the City’s recovery has progressed sufficiently to support certain previously suspended terminal leave payouts for pre- and post- MSRA employee retirements.  To this end, the City may now initiate terminal leave payments for both pre and post-MSRA employees. ” (239a).
[brief] 1T – Motion Transcript 03/27/20 (to amend complaint)  2T – Motion Transcript 01/08/21 (to extend discovery and for expert fees, etc.)  3T – Motion Transcript 08/06/21 (to bar vibrations damage)  4T – Motion Transcript 01/21/22 (to bar ocean view and enhanced wave overtopping vulnerability damage)  5T – Motion Transcript 01/25/22 (continuation of 01/21/22 motion)  6T – Motion Transcript 10/07/22 (to bar wave overtopping)
[brief] By crediting the written testimony, disregarding the cross-examination testimony, and by not explaining this decision, consequences.  [...] also never said why it couldn’t monitor the current regulator in the SCADA system, which common sense tells us was a deliberate choice.  \(^3\) “[...] has been fortunate to avoid service interruptions to date....”  [...]b15.  Obviously, luck has nothing to do with it.  the ID and the [...] Decision are arbitrary and capricious in disregard of the "entire record."
[brief] A review of the Plaintiff’s Complaint discloses there are only two “factual” allegations regarding financial impact.  41.  Numerous New Jersey consumers made payments to Defendant for accounts assigned to [...] when it was not properly licensed under the New Jersey Consumer Finance Licensing Act.  42.  Defendant collected money from Plaintiff and the proposed class as a result of dunning letters and collection complaints on accounts acquired when Defendant was not properly licensed.  Complaint (Pa 1)  Neither of these allegations can be described as establishing an “ascertainable loss. ”  The speculative nature of the claim as it relates to “New Jersey consumers” makes clear it is at best a guess or assumption on the part of Plaintiff as to any other unnamed others.
[brief] Case Management Conference  The parties participated in an unrecorded conference on July 6, 2023 to discuss the status of discovery.  Da123 ¶ 14.  During that conference, the parties reported that they had reached agreement on custodians and search terms, id.  ¶ 16, and were in the process of reviewing the “hits” with a goal to complete productions within 90 days, see Da155 ¶ 6.  The trial court, however, directed the parties to produce all documents that “hit[]” any of the terms, regardless whether the documents were responsive or relevant.  Da123 ¶ 15.  The court’s July 6 Directive authorized the parties to withhold documents only for privilege.  Da123-24 ¶ 17.  Shortly thereafter, the [...] requested by letter that the trial court modify its July 6 Directive.  Da102-06.  The [...]’ letter explained that the Directive would at that time have required them to produce approximately 68,000 irrelevant documents—a more than 2-to-1 over-production of non-responsive documents to responsive ones.  Da125-26 ¶ 22.  They also attested that a substantial percentage of these non-responsive and irrelevant documents would likely contain highly confidential, sensitive, and proprietary business information.  Da124 ¶ 18.
[directive] The report shall detail the progress of the training as of December 31, 2021 and shall be in a format prescribed by the [...].  II.  Other  Provisions  A. parties.  This Directive is issued pursuant to the Attorney Non-enforceability by third General’s authority to ensure the uniform and efficient enforcement of the laws and administration of criminal justice throughout the state.  This Directive imposes limitations on law enforcement agencies and officials that may be more restrictive than the limitations imposed under the United States and New Jersey Constitutions, and federal and state statutes and regulations.
[brief] As a general rule, greater deference is given to a denial of a variance than to a grant of a variance.  *Funeral Home Mgmt., Inc. v. Basralian*, 319 N.J. Super. 200, 208 (App. Div. 1999).  Where a planning board has denied a variance, the applicant must prove that the evidence before the board was "overwhelmingly in favor of the applicant."  *Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adj.*, 361 N.J. Super. 22, 38 (App. Div. 2003).  Accordingly, "we will not disturb a planning board's decision unless we find a clear abuse of discretion."  *Cell S.*, supra, 172 N.J. at 82 (citing *Medical Realty Assocs. v. Bd. of Adj.*, 228 N.J. Super. 226, 233, (App. Div. 1988).  The New Jersey Municipal Land Use Law (MLUL), *N.J.S.A.* 40:55D-1 to -112, authorizes local zoning and planning boards to grant variances pursuant to *N.J.S.A.* 40:55D-70.