ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Obviously, the basis for these holdings in Rendine and Delaware Valley is the concern that an attorney in a typical contingency payment arrangement involving statutory fee shifting works throughout the life of the case but does not get paid unless and until they obtain a favorable judgment for their client, therefore taking on additional risk.  See Delaware Valley 483 U.S. at 716.  This case does not present that same concern.  Instead, here, [...] and his counsel simply waited for many years to file the Global Fee Application after the prior two such applications were denied by [...] in April 2017 and July 2018.  Nothing prevented them from filing years earlier and, of course, they did file the prior two applications, which were denied.  They then chose to wait several years before trying again, perhaps hoping for a different result from a different judge, which they did ultimately obtain.  Having made that unilateral choice, [...] and his counsel should not be allowed to apply significantly higher 2022 rates in their application and thus be rewarded for their entirely self-imposed years-long delay.
[brief] Docket No. [...]  Criminal Action: On Appeal from a Denial of Post-Conviction Relief in the Superior Court, Law Division (Criminal), Mercer County Sat Below: Honorable [...], J.S.C.  Honorable Judges:  Please accept this letter memorandum, pursuant to R. 2:6-2(b), in lieu of a more formal brief submitted on behalf of the State of New Jersey.  TABLE OF CONTENTS  PROCEDURAL HISTORY ...........................................................................................................1  COUNTERSTATEMENT OF FACTS .........................................................................................1  LEGAL ARGUMENT ..................................................................................................................2  POINT I .....................................................................................................................................2  DEFENDANT DID NOT ESTABLISH A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL AND THE PCR COURT  PROPERLY DENIED DEFENDANT’S PETITION FOR POST-CONVICTION RELIEF WITHOUT AN EVIDENTIARY HEARING CONCLUSION  ..............................................................................................................................8  PROCEDURAL HISTORY  The State is satisfied to rely on the Statement of Procedural History as set forth in defendant’s brief.
[brief] ”  *Id.* at 454 (citing Turnbull, *Aesthetic Zoning*, 7 Wake Forest L.Rev. 230, 242 (1971)).  *Nadelson* at 559.  The court went on to state, the standard of “incongruity” must derive its meaning, if any, from the total physical environment of the Historic District.  That is to say, the conditions and characteristics of the Historic District’s physical environment must be sufficiently distinctive and identifiable to provide reasonable guidance to the Historic District Commission in applying the “incongruity” standard.  [*Id.* at 454]  The court went on to hold that “[t]he architectural guidelines and design standards incorporated into the ... Ordinance ... provide an analysis of the structural elements of the different styles and provide additional support for our conclusion that the contextual standard...is a sufficient limitation on the Historic District Commission’s discretion. ”  *Id.* at 454.  In rendering its decision, *Nadelson* relied other findings and concurred that the makeup of the (HPC) Commission and the procedural safeguards also helped limit the discretion of the Commission.
[brief] There is good reason behind this; Defendant alleges that the hard drive constitutes evidence but in fact it is simply a vehicle for the storage of evidence.  The implication of Defendant’s argument is that the State must indefinitely store, preserve, and turn over for inspection any data device that at one time or another stored evidentiary material.  This would include computers, electronic devices, flash and external drives, and perhaps even physical objects previously used to store evidence.  Further, Defendant’s counsel was aware of the material found on the hard drive after post-wiping inspection.  The material was precisely the same video that had been discovered to Defendant in the ordinary course.  No other material was located on the drive.  Defense counsel wisely did not demand production of what was not evidence in order to locate that which had already been located and utilized.  Aside from not being entitled to such discovery, Defendant would not have in any way benefited from review of the same video he had possessed since the inception of the case.  Thus, counsel was not ineffective, and Defendant certainly wasn’t prejudiced by a lack of repeated inquiry into the hard drive.
[brief] 28 N.J.S.A. 10:4-9 ..............................................................................  29 N.J.S.A. 10:4-10 ..........................................................................  29 N.J.S.A. 10:4-12 ..........................................................................  29 N.J.S.A. 40:55D-2a ....................................................................  8, 21 N.J.S.A. 40:55D-2l .....................................................................  8, 21 N.J.S.A. 40:55D-11 ....................................................................  4, 11, 17, 19 N.J.S.A. 40:55D-70 ....................................................................  19 N.J.S.A. 40:55D-70d ..................................................................  17  Ordinances  [...] Code §175-89D ...........................................  4, 13 [...] Code §175-160 ...........................................  11, 24, 25 Other Authorities
[brief] Plaintiff’s decision not to join Defendants in the Lease Litigation was an inexcusably calculated strategic decision which mandates a dismissal of action under the Entire Controversy Doctrine.  Rule 4:5-1(b)(2) “is intended to be applied to prevent a party from voluntarily electing to hold back a related component of the controversy in the first proceeding by precluding it from being raised in a subsequent proceeding thereafter."  Hobart Bros. v. National Union Fire Ins. Co. 354 N.J. Super. at 240–41(App. Div.), certif. denied, 175 N.J. 170 (2002) (quoting Oltremare v. ESR Custom Rugs, Inc., 330 N.J. Super. 310, 315 (App. Div. 2000).  This application of the Entire Controversy Doctrine prohibits a party from undertaking strategic choices with unfair results upon others.  See Thomas v Hargest, 363 N.J. Super 589, 595 (App. Div. 2013).  The New Jersey Supreme Court has held that when “a party deliberately chooses to fragment litigation by suing certain parties in another jurisdiction and withholds claims against other parties, a court need not later entertain the claims against the omitted parties if jurisdiction was available in the first forum.
[brief] Your Honors are ultimately being asked to hold that allegations which amount to civil law theft by way of fraud, conversion, tortious interference, New Jersey RICO, aiding and abetting, and conspiracy, do not implicate the professional work of an attorney, is not legal malpractice, and therefore does not require an AOM.  Thereafter, despite the fact that newly discovered evidence led to newly discovered claims against [...], the Law Division erred in denying Plaintiffs leave to amend the complaint to state said newly discovered claims.  Point III, infra.
[brief] This Court should void the act because the Constitution requires procedures to ensure that the legislators and the public have adequate advance notice and a say in legislation.  That did not happen with this highly controversial act, made even more controversial given the manner in which it was passed where even those who provided testimony thought such testimony related to a different pending pro abortion bill.  The Legislature should not be able to violate the manner in which the Constitution requires that bills be enacted into law; furthermore, the Legislature should not be able to violate its own statutes enacted for the purposes of review of bills before they become law.  As explained herein, the Legislature should never be able to enact a bill that violates our constitutional and statutory mandates.  This Court should draw particular scrutiny because the act at issue deals with one of the most controversial subjects that this country has dealt with since the 1960s.  As such, two citizens, Petitioners [...] and [...] timely filed this application to challenge the legislation under N.J.S.A. 1:7-4.  There are several procedural issues with the passing of L. 2021, c. 375 that deem it void under N.J.S.A. 1:7-4.  The legislation was never presented, as required by 52:13B-6, et seq. & 17B:27D-6, for fiscal review.  In addition, the Constitution and statutes were violated regarding adequate public notice of legislative action.  The denial of public access was compounded by the failure of the Legislature to give the public notice of the bill with twenty-four hours separating the second from third readings as constitutionally required.  Given these two statutory and constitutional deficiencies, L. 2021, c. 375 is void on its face.
[brief] Other courts have found ineffective assistance of counsel on this ground.  In Harris By & Through Ramsever v. Blodgett, 853 F. Supp. 1239 (W.D. Wash. 1994), aff'd sub nom. Harris By & Through Ramseyer v. Wood, 64 F.3d 1432 (9th Cir. 1995), the court ruled that trial counsel had not provided effective assistance because he failed to obtain an independent ballistics evaluation and failed to interview key State witnesses regarding the defendant’s mental state:
[brief] The Court noted that, [under Bankston and Irving, an officer may not disclose incriminating information obtained from a non-testifying witness.  Even when an officer does not specifically repeat that information, the officer may not create an "inescapable inference" that an unavailable source has implicated the defendant.  Bankston, 63 N.J. at 271.  Either method of relaying hearsay generates "[t]he vice Bankston and its progeny seek to eradicate": "the implication that a testifying police officer somehow is in possession of superior knowledge than what is presented to the jury and, hence, his testimony is worthy of greater weight."
[brief] “Historically a lease was viewed as a sale of interest in land.  The concept of caveat emptor, applicable to such sales, seemed logically pertinent to leases of land.  There was neither an implied covenant for the intended use nor responsibility in the landlord to maintain the premises. ”  Michaels v. Brookchester, 26 N.J. 379, 382 (1958).  Thus, traditionally a landlord is not responsible for the maintenance of a leased premises.
[brief] Defendant told [...] that they then “struggled” further, and defendant “got hold of the knife” and “stabbed” the man.  (4T 12-5 to 7)  When defendant was brought to the hospital, [...] agreed, his body temperature was “low,” and he was “shivering. ”  (4T 22-1 to 4)  [...] testified that when he canvassed the neighborhood around [...], he “did not find anything” evidential to the case.
[brief] ”  [...]’s only hope in preventing reversal of the trial courts’ vacatur of that portion of the Arbitrator’s award requiring him to reimburse [...] for the fees he caused it to expend during Phase I is to continue to outright misrepresent the record and procedural history of this litigation.  During Phase I of the Arbitration, the Individual Plaintiffs were adverse to [...], who continued to control [...].  [...] then caused [...] to intervene and litigate against the Individual Plaintiffs, and for [...]’s own personal interests.  This portion of the award did not “shift” fees from [...] to an adverse litigant (the Individual Plaintiffs); it required [...] to reimburse [...] for those fees that he caused it to expend advocating for his own personal interests; i.e. this part of the award is merely an award of consequential damages for [...]’s breach of fiduciary duty, which happens to have been [...] improperly causing [...] to litigate against some other third party (who just happen to be the Individual Plaintiffs).
[brief] See DiFiore, 254 N.J. at 228 (quoting Rowe v. Bell & Gossett Co. 239 N.J. 531, 551-52 (2019) (alteration in original) (quoting Green v. N.J. Mfrs. Inc. Co., 160 N.J. 480, 492 (1992)).  The Supreme Court remanded for consideration and weighing of factors and required Defendant to bear the burden to show good cause why the recording should be barred.  DiFiore, 254 N.J. at 242.  Without any citation of the relevant factors and relying on factors the Court said were invalid—such as the examiner’s dictation of the terms of the exam, the trial court entered a protective order.  (Pa150.)  This Court should require compliance with the Supreme Court’s decision.  If the trial court’s decision stands, then a cognitively impaired, mentally incapacitated person with a language barrier will be deprived of the evidence to preserve what occurs during the examination.  This was not the intent of the Supreme Court’s decision in this matter.  DiFiore, 254 N.J. at 241-42.  In opposition to Plaintiff’s motion seeking leave to appeal, Defendants demonstrated a lack of understanding of Plaintiff’s argument.  (See Dmb12.)  Defendants argued that Plaintiff’s request “is nothing more than sheer harassment contrary to Gensollen v. Pareja, 416 N.J. Super. 585, 591 (App. Div. 2010), and not designed for any reasonable end. ” (Dmb12.)  But both the Appellate Division and Supreme Court here noted recording served a reasonable end to preserve evidence.  See DiFiore, 254 N.J. at 239; DiFiore, 472 N.J. Super. 122-23.  Defendants did not meet their burden required by the Court because [...]’s self-imposed decision to forgo the exam if it is recorded when Plaintiff demonstrated a need for recording where 1) Plaintiff is cognitively impaired – so he will be unable to remember the exam, 2) he does not speak English – so there is a chance that the exam will be literally lost in translation; and 3) Plaintiff has severe anxiety that this Court previously noted may affect the ability to recall the exam, DiFiore, 472 N.J. Super. at 123.
[brief] 16  POINT I  [...]’S WAIVER OF HIS MIRANDA RIGHTS WAS NOT KNOWING AND VOLUNTARY BECAUSE THE INTERROGATING DETECTIVE MISLED HIM TO BELIEVE THE INTERVIEW WAS ABOUT A MINOR, UNRELATED DRUG CHARGE.  (2T 16-5 to 7; Da 8)  ..................................................................................  16  POINT II  [...] WAS DEPRIVED OF A FAIR TRIAL WHEN THE JURY HEARD [...] ACCUSE [...] OF LYING FOURTEEN TIMES, EXPRESS HIS LAY OPINION ON THE VIDEO FOOTAGE, AND AFFIRM THAT [...] HAD BEEN ARRESTED ON UNRELATED CHARGES.  (Not raised below)  .........................................................  25  A.
[brief] Further, Plaintiff’s attempts to buttress her harassment and retaliation claims by pointing to alleged incidents when unknown employees “told her” that other unknown employees made derogatory comments about her, is disingenuous.  While it makes for good reading, the fact remains that Plaintiff, under oath, was unable to identify who made these alleged statements, even acknowledging they could have been [...] employees.  Rather than demonstrating a viable claim under the NJLAD, these allegations, which are based on hearsay upon hearsay, demonstrate Plaintiff’s desperation in trying to make some claim stick against the [...].  Plaintiff’s constructive discharge claim was also correctly dismissed since the undisputed facts demonstrated there was insufficient evidence to meet the heightened standard required to set forth such a claim under New Jersey law.  Even Plaintiff’s own physician contradicted her constructive discharge claim, by testifying that his intention was to have Plaintiff removed from the physical location of the harassment (the Burlington East [...] Office), and not from the overall employ of [...], as Plaintiff so baselessly alleged.  Finally, the Trial Court also properly dismissed the claims against the individual [...] since Plaintiff failed to produce any evidence to support her claim that they “aided and abetted” violations of the NJLAD.  Indeed, much like the briefing on the summary judgment and reconsideration motions, Plaintiff has presented no argument here as to why the individual [...] were “aiders and abettors” under the NJLAD.  Here, the Trial Court properly reconsidered its previous denial of the [...]’ motion for summary judgment, and correctly found no issues of fact that would preclude the dismissal of the claims against the [...].
[brief] The Chancery Division found the Respondent’s testimony as credible, holding as follows:  Most of Respondent’s testimony is uncontradicted and supported by other witnesses.  She was composed.  Her demeanor was such that her recollection of all the facts as recited was believable.  Respondent was extremely credible while testifying as to her shortcomings in life including the relationship with the father of her children and her challenges with substance abuse and parenting.  The fact that she admitted that, at times, she was not a “model” child was also credible.  In the end, her bond and close relationship with her mother and the love they shared as a mother and daughter was evident.  This court finds Respondent credible.
[brief] A.  [...] satisfied the requirements of R. 4:33-1.  [2T]  [...] moved to intervene only under R. 4:33-1, which provides:  Upon timely application anyone shall be permitted to intervene in an action if the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical manner impair or impede the ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.  The trial court rightly found that [...] satisfied all of these requirements.  First, she moved on June 5, 2023 – less than 45 days after [...] formally articulated its objection to [...]’s standing in its trial brief, which was filed on May 8, 2023\(^5\).  [Da489; 1T at 48:7-9].  Second, in her Certification filed in support of her motion to intervene, she detailed her involvement in the submission of the June 14, 2022 letter to the Board with two members of [...]’s Governing Body that questioned the Board’s jurisdiction over Blue Violet’s application for development [Da422] and demonstrated that she was a property owner and taxpayer in [...], [...] was damaged by the Board’s irregular application of the City’s Zoning Ordinance.  [Da491 at ¶ 4 citing to Da422].  Third, absent intervention, if the Court agrees that because [...] only decided (based upon counsel’s advice) to form a non-profit entity to challenge the Board’s decision with other like-minded citizens and --- \(^5\) The Defendants’ briefs were originally due on February 17, 2023.  [Pa46].  The Defendants secured a lengthy extension of time to file their trial briefs, until May 8, 2023.  [Pa48].  taxpayers after the Board voted to approve the application [Da492 at ¶5], the entity lacked standing, there would be no one to protect her interest in ensuring the lawful and proper application of the City’s ordinances and the TOA Rule.  Indeed, as set forth in her certification, she formed [...] as a vehicle to challenge that action that fostered pooling of resources amongst its supporters without generating income tax liability.
[brief] The Lawsuit And Driver Assistance Features | 4 | | C. [...]’s Motion For Summary Judgment | 7 | | D. The Court’s Ruling | 8 | | ARGUMENT | 10 | | I.  THE TRIAL COURT DID NOT ERR IN GRANTING SUMMARY JUDGMENT ON THE ISSUE OF DESIGN DEFECT.  (2T at 26) | 10 | | A.  The Subject Vehicle Was Not Defective As A Matter Of Law | 11 | | B.  A Vehicle That Is Safe As Designed Does Not Become Unreasonably Unsafe Because It Did Not Include Driver Assistance Features | 12 | | II.  THE ISSUE OF CAUSATION IS NOT RIPE FOR THIS COURT’S REVIEW.  (2T at 27)  | 18 | | CONCLUSION | 20 | | Cases | Page | |----------------------------------------------------------------------|------| | **Bhagat v. Bhagat,** | 10 | | 217 N.J. 22 (2014) | | | **Butler v. Daimler Trucks North America, LLC,** | 15, 16| | No. 19-CV-2377-JAR, 2022 WL 2191755 (D. Kan. June 16, 2022), aff’d, 74 F.4th 1131 (10th Cir. 2023) (attached at Pa286) | | | **Crispin v. Volkswagenwerk AG,** | 13 | | 248 N.J. Super. 540 (App. Div. 1991) | | | **Durando v. Nutley Sun,** | 10 | | 209 N.J. 235 (2012) | | | **Est. of Brust v. ACF Indus., LLC,** | 10 | | 443 N.J. Super. 103 (App. Div. 2015) | | | **Grzanka v. Pfeifer,** | 12, 17| | 301 N.J. Super. 563 (App. Div. 1997) | | | **Hayes v. Delamotte,** | 18 | | 231 N.J. 373 (2018) | | | **Huddell v. Levin,** | 15 | | 537 F.2d 726 (3d Cir. 1976) | | | **In re Accutane Litig.** | 19 | | 234 N.J. 340 (2018) | | | **Ixcopal v. Crown Equip. Corp.,** | 11 | | No. A-2208-14T3, 2017 WL 1456965 (N.J. Super. Ct. App. Div. Apr. 25, 2017) (unpublished) (attached at Pa280) | | | **Lauder v. Teaneck Volunteer Ambulance Corps,** | 15 | | 368 N.J. Super. 320 (App. Div. 2004) | | | **Macri v. Ames McDonough Co.,** | 11 | | 211 N.J. Super. 636 (App. Div. 1986) | | ### TABLE OF CITATIONS (Continued) | Citation | Page | |-------------------------------------------------------------------------|------| | **Mathews v. Univ. Loft Co.,** | | | 387 N.J. Super. 349 (App. Div. 2006) | 17 | | **Myrlak v. Port Auth. of N.Y. & N.J.,** | | | 157 N.J. 84 (1999) | 11, 15 | | **Roberts v. Rich Foods, Inc.,** | | | 139 N.J. 365 (1995) | 17 | | **Sanner v. Ford Motor Co.,** | | | 144 N.J. Super. 1 (Law Div. 1976), *aff’d*, 154 N.J. Super. 407 | 14, 17 | | *(App. Div. 1977)* | | | **Soler v. Castmaster, Div. of H.P.M. Corp.,** | | | 98 N.J. 137 (1984) | 13 | | **State v. Woodruff,** | | | 403 N.J. Super. 620 (Law Div. 2008) | 14 | | **Youngberg v. General Motors LLC,** | | | No. 20-339-JWB, 2022 WL 3925272 (E.D. Okla. Aug. 24, 2022) | 16 | | *(attached at Pa303)* | | **Statutes** | Statute | Page | |------------------------------------------------------------------------|------| | N.J. Stat § 39:4-88 | 14 | | N.J. Stat. § 2A:58C-2 | 10 | | New Jersey Product Liability Act, section 2A:58C–3a(2) | 2, 7, 17 | **Other Authorities** | Authority | Page | |------------------------------------------------------------------------|------| | Model Jury Charge (Civil) 5.40D-3(2)(a) | 11, 12 | | New Jersey Court Rule 4:46-2(c) | 10, 19 | PRELIMINARY STATEMENT
[brief] Plaintiffs ask this Court to ignore the fatal flaws in their case by straddling conflicting arguments contending that [...]’s failure to preserve video evidence stopped Plaintiffs from having evidence of constructive notice (please see Point III supra for more details) while also arguing that the “Mode of Operation” rule obviates the need to prove same.  However, Plaintiffs’ reliance on Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429-30 (1966) is entirely misplaced.  Wollerman and other cases cited by Plaintiffs deal with falls within stores resulting from foreign substances or items on the floor held for sale by stores in the usual course of their business.  See Wollerman, supra, 47 N.J. at 428 (plaintiff slipped and fell the vegetable section of the defendant's supermarket on a string bean).  The Appellate Division in Znoski v. Shop-Rite Supermarkets, Inc., 122 N.J. Super. 247-248 (App. Div. 1973) specifically rejected this same argument, finding Wollerman “inapposite” to the case where a youth hit the plaintiff in the back with one of Shop-Rite’s shopping carts.
[brief] Pa52, T83:21-84:7.  Appellant described the meeting as follows:  During that conversation we went over the letter and we spoke about it, what happened.  He agreed that it shouldn't have happened.  He sympathized with me and he made some comments about how it's not like he's my friend and we're not -- he knows that we're not personal, me and [...].  And eventually he assured me that he would be taking my complaint to City Hall or personnel, essentially HR, I believe, and then he reassured me shortly after that he was going to do it that day.  Pa52-53, T85:25-86:11.