ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Passion/provocation manslaughter has four elements: "the provocation must be adequate, the defendant must not have had time to cool off between the provocation and the slaying; the provocation must have actually impassioned the defendant; and the defendant must not have actually cooled off before the slaying."  *Robinson*, 136 N.J. at 490 (quoting *Mauricio*, 177 N.J. 411).  To satisfy the "adequate provocation" element, "a jury must conclude that a reasonable person in the defendant's position would have been provoked sufficiently to 'arouse the passions of an ordinary man beyond the power of his control.'"  *Funderberg*, 225 N.J. at 80 (quoting *State v. King*, 37 N.J. 285, 301-02 (1962)).  "The generally accepted rule is that words alone, no matter how offensive or insulting, do not constitute adequate provocation to reduce murder to manslaughter."  *State v. Crisantos*, 102 N.J. 265, 274 (1986).  However, while it is settled that words alone are not sufficient for adequate provocation, words in addition to a "menacing gesture" could be considered adequate provocation for passion/provocation manslaughter.
[brief] The Trial Court misinterpreted the exception to the mold exclusion by misapplying well-established rules of policy interpretation.  (Da31.)  [...]’s partial summary judgment ruling refusing to apply Appleman’s rule left for trial the issue of whether or not an exception to the mold exclusion applied to allow coverage for mold on food intended for consumption by [...].  The exception at issue is not contained in the first two [...] policies issued to [...] and was added to the mold exclusion in the [...] policy that incepted on June 4, 2007.  The exception reads as follows:  This exclusion does not apply to any fungi or bacteria that are, are on, or are contained in, an edible good or edible product intended for human or animal consumption.  Da277.  This exception addresses situations in which any mold is “on” or “contained in” an “edible good” (food) that is “intended” for human consumption.  While courts, including the Trial Court, have referred to this clause as a “consumption exception,” the plain language does not even require actual proof of consumption of mold contaminated food.  The evidence adduced in the underlying case, however, shows that [...] did in fact consume “mold on or in” the food he consumed during the eighteen years he was chronically exposed to mold in his condominium.  All the express policy language requires is that the contaminated food be “intended” for human consumption. \(^5\)
[brief] Furthermore, even if Plaintiff were correct, there is a lengthy record from two hearings in front of the Planning Board wherein there was extensive testimony from experts and reports and studies submitted and analyzed.  As Plaintiff acknowledges, a majority of the Planning Board member cited traffic safety as their primary reason for denying the variance.  Similarly, Plaintiff is also incorrect that *E & J Equities* set some sort of new evidential standard for planning board hearings.  As detailed above, the municipal proceedings at issue in *E & J Equities* concerned the drafting and passage of a new ordinance.  Thus, the constitutionality of the ordinance was directly at issue in the municipal proceedings.  Obviously, when drafting and passing an ordinance restricting speech, a municipality must properly identify the substantial government interest and ensure the restriction is narrowly tailored.  None of those issues were at issue in the instant case, which concerned whether to grant a variance on an existing ordinance not the adoption of an ordinance.  Thus, Plaintiff’s argument that *E & J Equities* adopted some sort of new proof requirement for municipalities is incorrect.  **C.
[brief] *State v. Santamaria*, 236 N.J. 390, 405 (2019).  Indeed, defense counsel made that very argument to the judge, but to no avail.  (14T 112-17 to 115-2)  She even argued that the court’s contrary ruling was “precluding me from putting forth a defense on behalf of my client. ”  (14T 115-15 to 17)
[brief] Notwithstanding [...]’s concerns, this court should find that [...] followed the duly promulgated rules in determining WQMP consistency, the Project is in the sewer service area, stormwater management issues are appropriately addressed in accordance with the TMDL, specifically through supporting regulatory programs, including the NJPDES program and the Stormwater Management programs, and appropriately determined the Project was consistent with the Areawide WQM Plan.  **CONCLUSION**  For these reasons, this Court should affirm [...]’s decision.
[brief] In the Third Circuit, the failure to charge an appropriate lesser-included offense is a violation of the constitutional guarantee of due process.  *Vujosevic v. Rafferty*, 844 F.2d 1023, 1027-1028 (3rd Cir. 1988).  Moreover, the “rational basis” standard for charging the lesser-included offense if it is requested by counsel, as it was here, is significantly lower than the standard if it is not requested.  *Carrero*, 229 N.J. at 127-128; *State v. Thomas*, 187 N.J. 119, 132 (2006).  In the absence of a request, the basis for charging the lesser must be “clearly indicated” from the record and the trial judge is not under the same duty “meticulously to sift” through the record to see if any aspect of the evidence supports the instruction.  *Id.*; *State v. Choice*, 98 N.J. 295, 299 (1985).  Indeed, if not requested, the need for the instruction must be “jumping off the page” of the record for its absence to be reversible error.  *State v. Funderburg*, 225 N.J. 66, 81-82 (2016), quoting *State v. Denofa*, 187 N.J. 24, 42 (2016); see also *State v. Canfield*, 252 N.J. 497, 501 (2023) (comparing and contrasting the two standards).  Obviously, with the defense request for the instruction here, the plenary review of the judge’s decision in this case must be under the mere “rational basis” standard of *Brent*, *Carrero*, and *Sloane*.
[brief] New Jersey motion courts routinely award such fees if the parties’ contract expressly provides for such an award.  *Litton Industries, Inc. v. IMO Industries, Inc.*, 200 N.J. 372 (2009) (affirming the award of attorneys’ fees provided for by a purchase and sale agreement); *Kellam Assoc., Inc. v. Angel Projects, LLC*, 357 N.J. Super. 132 (App. Div. 2003) (finding prevailing party should have been awarded attorneys’ fees and costs where the action was covered by a lease term providing for attorneys’ fees and costs).
[brief] 8  B.  The Trial Court Lacked Jurisdiction to Reconsider and Reverse the March 22, 2024 Stay Order Because Jurisdiction Was Vested in the Arbitrators (Da080; Da084; Da162-Da163; 2T19:16-22:14)  ...........................................................................................................  10  III.  THE ARBITRATION AGREEMENT SHOULD BE ENFORCED (Da027-Da028; Da070-Da079; Da162-Da163) .........
[brief] (Da61; Da514-Da516).7  [...] --- 7  [...]’s EEO complaint against [...] was not substantiated, as indicated in a separate report and letter dated August 10, 2019.  (Da61-Da62, Da517-Da519).  informed [...] of the results of its investigation into [...]’s complaint on the same date.  (Da124; Da514-Da516).  [...]’s last day of work at the Camden office was on or around December 6, 2018, when she took a leave of absence.  (Pa351 at T109:20-25; Da124; Da669-670).  [...] never returned to the Camden office after she took a leave of absence. (Pa365 at T163:18-164:2; Pa696 at T163:18-164:2, Da124).  [...]’s employment with [...] was formally separated sometime afterward.
[brief] The office had been closed for two days prior to plaintiff’s accident due to the weather conditions.  (Pa1175-1179)  Although the real estate office had a back door to the parking lot, (Pa1166), the back door was not for customers’ use.  In fact, it could not be used at all at the time of plaintiff’s accident because [...]’s belongings were piled up against it.  (Pa1171)  [...]’ lease with [...] appears twice in appellant’s appendix; at Pa504-507 and Pa869-872.
[brief] Initially, defendant was agreeable to proceeding to a verdict with a jury of less than twelve, as the Court Rules permit.  (20T41-11 to 24).  See R. 1:8-2(a).  Before that was reduced to writing, as the rule requires, defendant rescinded his agreement.  (21T30-7 to 25).  court proposed, and gave, the standard Czachor\textsuperscript{16} instruction to continue deliberations.
[brief] ”  DiProspero, 183 N.J. at 496 (alterations in original).  Thus, “[i]t is basic in the construction of legislation that every effort should be made to harmonize the law relating to the same subject matter. ”  Id. (citing State v. Green, 62 N.J. 547, 554 (1973).  As an initial matter, the law does not define or otherwise classify a “merged” district as one that is distinct from consolidated districts.  Indeed, N.J.S.A. 18A:8-44(a), governing the elimination of non-operating school districts, simply states that the executive county superintendent “shall eliminate any non-operating district and merge that district with the district with which it participates in a sending-receiving relationship.
[brief] It was neither the role nor in the expertise of the Trial Court to dispute whether [...]’s or [...]’s factual statements and/or unrebutted expert opinions were correct.  Yet, that is precisely what the Trial Court erroneously and repeatedly did.  The following are the Trial Court’s errors of fact: “[...]’s project never materialized…” (1283a); “[...]’s reports and opinions do not account for [...]’s lack of experience in development.
[brief] ARGUMENT  Defendant's opposition brief supports Plaintiff’s position asserted on appeal.  That is largely because the facts are undisputed.  De novo review on appeal confirms the Plaintiff's complaint was properly filed and dismissal was plain error.  Defendant contends issues were not raised below.  (Db 7-9)  The assertion is not correct.  The certification of Plaintiff's representative submitted in opposition before the Law Division contained the e-mails which are also before the Appellate Division.  (Pa 53 to Pa 81)  The Law Division filing imprint appears on the documents.  Respondent’s suggestion of first arguing issues before the Appellate Division is simply not supported by the record.  Respondent includes Plaintiff's letter-brief to the Law Division.  (Da 1)  This document also supports Plaintiff's contention as the informal dispute resolution is set forth at page 2 of the letter brief.  (Da 2)  Certainly, it would have been beneficial to have argument before the Law Division to the extent any arguments were not crystalized.  There is no question the Law Division declined to hear oral argument, notwithstanding the request.  (Pa 5, Pa 14)
[brief] See *Innis*, 446 at 301-02.  An important fact that goes against the trial court’s reasoning that the phone calls are the functional equivalent of interrogation is [...] advising defendant that if his mother did not pick up the call he should leave a voicemail informing her that he was going to be transported to the county jail and would call her once he arrived there.  (1T:84-16 to 84-18).  Moreover, once defendant’s mother called back as defendant was leaving a voicemail and asked what happened, [...] immediately told defendant to only tell her that they are in the room and that he will be later transported to the jail.  (1T:85-7 to 85-9).  The question posed by defendant’s mother cannot be deemed interrogation because it was not posed by law enforcement or for the benefit of law enforcement.  See P.Z., 152 N.J. at 102.
[brief] ”  That “the pictures in the record demonstrate …. the dangerous nature of the property” …“only the smell of human waste cannot be reproduced in the appendices. ” (Appellant Brief, Point.1 at p.15).  [...] received a real bargain, and Plaintiff a quick $120,000.00 profit, less than three months from entry of its final judgment, Contrast to the redemption Defendant paid of $20,025.97 bespeaks to the harsh and punitive consequence if the Appellate Division reinstates the final judgment.  LEGAL ARGUMENT POINT I I.
[brief] Id. at 216-17.  That case involved a slip-and-fall accident on [...]’s premises.  Id. at 216.  The plaintiff sued [...]; [...]’s cleaning contractor, [...]; and [...]’s cleaning subcontractor, [...].  Ibid.  [...]’s subcontract with [...] required [...] to defend and indemnify [...] and [...] for any act of negligence arising out of [...]’s performance of its services.  Id. at 219.  The trial court dismissed the plaintiff’s claims on summary judgment, ruling that plaintiff’s expert report was a net opinion and that the plaintiff therefore failed to offer proof that the defendants were negligent.  Id. at 219-20.  However, the trial court ordered [...] to reimburse [...] and [...] for their defense costs.  Id. at 220.  The Appellate Division affirmed the trial court’s judgment.  Id. at 221-22.  The Supreme Court reversed, ruling that the language of the indemnity provision did not require [...] to indemnify [...] and [...] for the costs of defending claims that were dismissed for lack of evidence.
[brief] ”  Id.  Those municipalities which filed declaratory judgment actions received temporary immunity from exclusionary zoning lawsuits.  Id. at 26.  However, immunity was not a continuing guarantee and could be revoked if a town “abuses the process for obtaining a judicial declaration of constitutional compliance. ”  Id.  When the goal of achieving compliance “cannot be accomplished, with good faith effort and reasonable speed, and the town is determined to be constitutionally noncompliant,” the court could allow builder’s remedy suits to proceed, notwithstanding the town’s prior compliance efforts or status with COAH.  Id. at 33-34.  Indeed, remedies to address noncompliant municipalities may be varied, even for a town which sought to maintain its declaratory judgment action, but which continually failed to offer in good faith a compliant housing plan.  See In re Matter of the Application of [...], [...], 2023 WL 4485406, at *21-*24 (N.J. App. Div. 2023) (affirmance of trial court’s decision to revoke immunity, grant all intervenor developers a builder’s remedy, and employ special hearing officers -- not the town’s Planning Board -- to hear the builder’s remedy site plan applications); see also Cranford Dev., 445 N.J. Super. at 232-34 (affirmance of trial court’s appointment of a special hearing officer in lieu of Planning Board to hear builder’s remedy site plan application).
[brief] OPRA was designed to maximize transparency, but it is equally well-settled that government needs to operate with some degree of privacy to allow the free flow of communications, ideas, and discussion to arrive at decisions that are in the public’s best interests.  The ability to withhold or redact records based on applicable privileges is not the panacea to this problem, either.  Fulfilling a request like the one at issue here not only allows a requestor to fish through an agency’s records in a way that has never been countenanced, it also places a significant practical burden on agencies and their custodians—particularly where, as here, the records at issue belong to an employee at the highest level of the entity, responsible for discharging sensitive student and personnel matters.  For these reasons, and because the trial court’s decision was legally incorrect and failed to consider any of these consequences, its decision should be reversed and [...]’s complaint dismissed.
[brief] ”  Id.  \(^4\)  Identical counsel for Appellant here filed a petition for certification of the judgment in Francavilla, and said petition was denied.  A copy of the Order is enclosed herein.  As such, the Francavilla Appellate Division decision was approved for publication, and a copy of same showing said approval is also enclosed herein because the version available on LEXIS wrongly continues to suggest that it is not approved for publication.
[brief] Yura, supra (hearing necessary to determine alleged “sophistication” of the commercial contracting parties).  Defendants’ mere assertions that the plaintiffs are “sophisticated” are not evidence, let alone undisputed evidence, and do not carry the day on a motion for summary judgment.  Appellants’ Brief contains no record citations for their argument that plaintiffs were “sophisticated” or had the ability to negotiate the form contract, and their Statement of Undisputed Material Facts does not allege “sophistication” or the ability to negotiate as undisputed facts.  (Da331 - 351).  To be sure, the only Certifications submitted by defendants in support of their motion were from their counsel, and counsel did not aver that the plaintiffs were “sophisticated” or that [...] was even willing to negotiate its form contract.  (Da352 – 359, 427 - 432).  Appellants’ Brief even acknowledges that the POS and unit purchase agreements must “be uniform. ” (at p. 41).  In short, their factual contentions are woefully unsupported and disputed; and if somehow true, would be of no moment as a matter of law, anyway.
[directive] Routine Patrols  1.  Aggressive Enforcement Plans.  SNAP Directive 5.9 establishes that it is the responsibility of every local law enforcement agency to maintain, at appropriate times, a visible police presence within all drug-free school zones, and to file and periodically update a confidential report with the county prosecutor detailing how these zones are to be patrolled.  2.  Notice to School Officials.  Where a patrol plan developed pursuant to SNAP Directive 5.9 requires an officer to periodically enter onto school property or buildings, the chief operating officer of the department with patrol jurisdiction should advise the appropriate school building principal and local superintendent.  It is understood and agreed that any portion of a patrol plan disclosed to school officials in accordance with this subsection shall be kept strictly confidential.  3.  On-Site Reporting.  Except when responding to an emergency, or where compliance with this subsection would otherwise not be feasible, no on duty police officer shall enter any school building without first complying with the procedures established by the school for the reporting of visitors.  It is understood that the agreements or memoranda of understanding developed pursuant to this Executive Directive and rules and regulations to be promulgated and adopted by the Commissioner of Education may prescribe the specific on-site reporting procedures.  It shall be the responsibility of each police department or agency with patrol responsibilities to make certain that all officers are familiar and comply with the reporting policies established by each school within the law enforcement agency's jurisdiction.
[brief] The original sentencing judge had retired, so the remand proceedings were conducted by the Honorable [...], J.S.C. Judge Wright held a two-day re-sentencing hearing on June 28 and August 2, 2022.  (3T; At that hearing, the defense called [...], an expert in forensic neuropsychology.  (3T12-3 to 12).  Several people then spoke on defendant’s behalf (4T71-21 to 87-17); defendant himself addressed the court, (4T88-4 to 90-14); as did the victim’s mother, (4T91-12 to 92-14).  Counsel then gave oral argument in support of their positions.  (4T93-3 to 131-10).  On March 27, 2023, Judge Wright imposed the new sentence.  That decision will be discussed in more detail in Point I-C., post.
[brief] I DEFENDANT WAS NOT ENTITLED TO A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE.  A.  Defendant’s Over-Confidence in the Strength of His Case Does Not Excuse His Lack of Diligence in Searching for the Documents He Now Claims Were Newly Discovered.  Defendant was indicted in May 2019.  Almost four years later, after a trial that took place over the course of more than two weeks, he was convicted on the sole count in the indictment.  Just eight days later, defendant filed a motion for a new trial alleging that he was in possession of newly discovered evidence.  ---  1
[brief] In *Green*, the Court permitted the prosecutor’s firearm expert to testify, but limited that testimony to descriptions of ways in which the compared casings were similar and did not permit the expert to testify that the casings came from a specific weapon “to the exclusion of every other firearm in the world. ”  *Id.* at 107.  In *Green*, [...] discussed ways in which firearm --- \(^5\) NAS and PCAST are members of an expansive coalition of academics and practitioners alike who view firearms examination with skepticism and consider its claims oversold.  Article after article has appeared in the world’s preeminent scientific journals bemoaning the lack of research underlying firearms examination, the discipline’s lack of rigor, its failure to abide by any of the hallmarks associated with the very practice of science, and the overblown conclusions made by its practitioners.
[brief] Instead the judge gave another Czachor instruction, told the jurors that she was going to “determine how long we can have you here today,” and she sent them back to deliberate more at 4:45 p.m., telling them additionally only that they could “notify the court again” and that “there are options,” but she never asked the jurors -- as the model instruction indicates she should have done upon a second deadlock (Da 27) -- whether further deliberations would likely be fruitful or whether she should just take a partial verdict.
[brief] [...]  Attorneys for Plaintiffs, [...] and [...] BY: s/[...]  JOHN C. GILLESPIE, ESQUIRE  Dated: August 6, 2024  REPLY BRIEF FOR RESPONDENT  [...]  [...], ESQUIRE  [...] [...]  [...]  Attorney ID # 015991995  Attorney for Respondent: Florence Township Zoning Board of Adjustment  TABLE OF CONTENTS
[brief] [...] brief at 19.  But the [...]’s failure to strictly and narrowly construe the provision, and associated failure to recognize the plain and obvious meaning attributed to the word routine in this context, renders the [...]’s decision making process as entirely unreasonable and in violation of the legislative intent behind the statutory exemption that is at issue here.  The [...] incorrectly relies on the case of State v. N.T., 461 N.J. Super. 566, 571 (App. Div. 2019), for the proposition that the “or” in this statutory language sets the word “upgrade” as apart or separate from the word “routine”.  The statutory language in that case did not deal with a statutory provision that is grammatically similar to the exemption at issue in this case.  And the [...]’s reliance on the case of Morella v. Grand Union/New Jersey Self-Insurers Guar. Ass'n, 391 N.J. Super. 231, 240 (App. Div. 2007), is also misplaced.  That case actually supports the Environmental Appellants’ reading of the statutory exemption at issue here precisely because the legislature chose not to employ semicolons.  The [...] should have looked at this Court’s published decision in the matter of N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 513 (App. Div. 2015), which is directly on point with regard to the grammatical construction and interpretation of the word “or” as it is used in the statutory provision at issue in this appeal.
[brief] The judgment entered is final, "and no application shall be entertained to reopen the judgment after three months from the date thereof, and then only upon the grounds of lack of jurisdiction or fraud in the conduct of the suit," N.J.S. 54:5-87; N.J.S. 54:5-104.67.  The judgment vests in the plaintiff "an absolute and indefeasible estate of inheritance in fee simple in the land[.]"  N.J.S. 54:5-104.64(a).  Once a judgment is entered, thereafter the plaintiff’s right to the property becomes paramount.  *Landa v. Adams*, 162 N.J.Super. 318, 323 (App.Div. 1978).  "Recognition cannot be afforded any policy enabling citizens to escape paying taxes."  *City of Philadelphia v. Bauer*, 97 N.J. 372, 383 (1984).