ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The Trial Court relied on the following term from the Implementation Memo to support this argument: “the below salaries shall be the entire compensation for each employee. ”  Pa000028.  The Trial Court then found that “Defendants' decision to modify the 2016 MOAs via the 2017 Notice of Implementation was reasonable and directly related to stabilizing the finances or assisting with the fiscal rehabilitation and recovery of the municipality in need of stabilization and recovery. ”  Id.  The Court’s interpretation is contrary to the plain meaning of the Implementation Memo and Settlement Agreement which never discussed back wages owed and by their own terms, were only effective prospectively from June 7, 2017.
[brief] (Pca4-5.)  Obviously, at trial, the defendant-examiner would be more believable as to what occurred at the examination than [...] because [...]’s memory and understanding are at issue.  The recording would capture the evidence necessary as to what occurs at the examination.  Third, [...] is also being examined for his anxiety.  (Pca5.)  The Supreme Court and this Court have noted that even those without anxiety are likely to be affected by the “the stress and anxiety” of the exam itself.  DiFiore, 254 N.J. at 232 (quoting DiFiore, 472 N.J. Super. at 123).  But [...] will be affected even more by anxiety that could affect his ability to recall what occurs at the examination.  Again, without a recording, a jury is unlikely to believe [...]’s version of what occurred at the examination over [...]’s account.
[brief] Likewise, the statute defines the offense of third-degree animal fighting with sufficient definiteness in a way that does not encourage arbitrary or discriminatory enforcement.  The plain text of the statute does not invite guessing at its meaning.  In a similar vein, N.J.S.A. 4:22-24.1 defines the crime of animal “trunk fighting” as “the practice of enclosing two or more animals in the trunk or any part of a motor vehicle for the purpose of the animals attacking each other, and possibly fighting until one or more of the animals are dead.
[brief] The [...] and the other evidence in the record, including the respective deeds, confirm [...]’s conclusion.  [...] cannot satisfy the jurisdictional requirement of peaceable possession.  [...] is not entitled to quiet title to [...]’s Property at Lot 22 as a matter of law, regardless of what [...] calls it or how it improperly defines it.  For this reason, this Court must, respectfully, uphold the trial court Order dismissing [...]’s Third Count of its Counterclaim for quiet title.
[brief] The Law Division then addressed the Defendant’s reliance on the Vargas matter and distinguished Vargas from Defendant’s matter because the within Defendant had acknowledged being under the influence.  (T3:26-8 to 28-2).  Thereafter, the Law Division denied Defendant’s Motion to Vacate Guilty Plea on de novo review.  (T3:29-18 to 29-19).  The Law Division, despite not having vacated Defendant’s plea, stated that it would have resentenced the Defendant to the same penalties that had been previously imposed by the Municipal Court.  The Law Division conceded that Defendant had satisfied all of his 2018 penalties in full.  (T3:29-9 to 30-10).  The Law Division advised Defendant of his right to appeal its decision to the Appellate Division.  (T3:30-11 to 30-14).
[brief] ”  Id. at 279-280 (emphasis added).  The court “emphasize[d] that the builder’s remedy should not be denied solely because the municipality prefers some other location for lower income housing, even if it is in fact a better site. ”  Id. at 280.  Our Supreme Court has continuously pointed to the need for builders’ remedies as a tool to achieve municipal compliance with Mount Laurel.  In Toll Bros. v. Twp. of West Windsor, a case that the Court specifically took to reevaluate whether builder’s remedies were still needed, the Court emphatically answered yes.
[brief] (Pa14).  Nor did [...] demonstrate extreme hardship in this matter, as he will continue to receive his Special Retirement benefits with concurrent retiree health benefits coverage.  (Pa70).  It should also be noted that cases involving the use of the Board’s equitable power for reopening proceedings or relaxing deadlines “were bottomed on the inherent power of an administrative agency, in the absence of legislative restriction, to reopen or to modify and to rehear orders previously entered by it.
[brief] In New Jersey, condominium sponsors, such as [...], are subject to rigorous statutorily required documents for the development of a condominium building and to establish condominium associations.  The rules and regulations governing the process are enforced by the State Department of Consumer Affairs (“DCA”) and grants the DCA wide ranging authority to protect condominium purchasers.  See e.g. N.J.S.A. 45:22A-37 (provision of PREDFDA granting the DCA the authority to order the recission of condominium unit purchase agreements that violate PREDFDA).  To that effect, Sponsors must file certain statutorily-required documents with the DCA for review and approval, including a master deed, Public Offering Statement (“POS”), and Purchase Agreements for units.  See N.J.S.A. 45:22A-26(a) (prohibiting developers from offering or disposing of any real property or interest therein without registration with the DCA and provision of a POS to the purchaser); N.J.S.A. 46:8B-9 (provision of the Condominium Act listing all required contents for any registered condominium master deed); N.J.A.C. 5:26-6.2, -6.3, and -6.6 (requiring a condominium sponsor’s POS and unit purchase agreements to be uniform).  Plaintiffs voluntarily signed an Election Form, expressing their agreement and preference to accept the POS digitally.
[brief] Additionally, Defendants [...]/[...] base most of their arguments on the palpably incorrect assertion that the Jury found Plaintiff to be 0% at fault.  To be sure, the Jury was not asked to assess any fault to Plaintiff.  The Jury Verdict Sheet concerns only the negligence of Defendants [...]/[...] and Defendants [...]/[...].  Da272; Da273.  In fact, all counsel – including all defense counsel – agreed on the record during the Charge Conference that the Jury should not consider any Comparative Fault of Plaintiff and that “the only liability question on the verdict sheet would be as to the two Defendants. ”  4T256-257.  Accordingly, any arguments that the Jury “should have” found Defendants [...]/[...] 0% at fault because Plaintiff was found to be 0% at fault is not based in law or in fact.  At trial, the jury was charged on N.J.S.A. 39:4-105.  5T87.  This statute imposes a duty to stop when faced with a yellow/amber traffic control light, except when it would be dangerous to do so.  Defendant violated his duty by not stopping.
[brief] April 14, 2021 Hearing  During the hearing, in response to concerns that a large hardship increase would displace [...] (8T:33:7-14), the Board’s attorney stated that “there is going to be a hardship granted … It’s just a matter of how much…”  8T:34:12-17.  The Board revisited whether the costs for tax preparation and garbage fees are allowable costs.  8T:137:2-139:10.  Despite that the increased garbage fee was due to Hoboken changing the time that the garbage could be brought out to the street, the Board arbitrarily voted to exclude this $123 annual cost as an allowable cost.  Board members falsely stated that there was “no new service” (8T:153:11-17, 154:2-4,) or amenity (8T:154:15), and the increased cost resulted from the Property converting to a condominium (8T:153:19-25, 154:2-4, 8-12; 14-16).  The Board approved the reinstatement of the $75.32 cost for tax preparation.  Once again, [...] did not provide any testimony or rebuttal documents challenging any of [...]’s proofs.  iii.  June 9, 2021 Hearing
[brief] Dismissing Plaintiffs’ Complaint against Defendants [...], Esquire and [...]……………………………164a-185a Order of August 28, 2020  Dismissing Plaintiffs’ Complaint against Defendants [...], Esq. and [...]……………………………………..148a–154a Order of August 28, 2020  Dismissing Plaintiffs’ Complaint against Defendants [...], Esq., [...], Esq., and [...]…………………………………………………………………………………..155a–163a Order of Order of January 25, 2022 Granting Sanctions Against Plaintiffs and Awarding Counsel Fees to Defendants [...], Esq., and [...]…………………………………………………………………………………..190a-203a Order of June 30, 2022, Denying Plaintiffs’ Motion to Reconsider the Order of January 25, 2022, with respect to Defendants [...], Esq. and [...]…………………………………………………………………………………..209a-232a Order of June 30, 2022 Granting Defendants [...], Esq. and [...]’s Motion for Attorney Fees………………………………………..209a-232a PRELIMINARY STATEMENT Defendants, [...], Esquire & [...] [...] (collectively, the “[...] Defendants”), ask this Court to affirm various Orders of the trial court, including the following:
[brief] \(^{21}\)  Id.  \(^{22}\) FERC Order Accepting Revised Tariff Sheets Subject to Revision and Establishing Technical Conference (July 24, 2007), Docket Nos. [...] and [...], ([...], dissenting in part) (emphasis added).  claim[ed] that the requested incentives for the [...] [were] not justified because the Project is a routine investment....  [one of the parties] argue[d] that the [...] [was] a **routine upgrade** from the existing [...] which, in the near future, [would] be inadequate to serve [...]’s growing load. ”\(^{23}\)  In light of the principles of statutory and regulatory interpretation outlined above and the common sense use of the phrase “routine upgrade” in the energy industry context, the word “routine” in Exemption #11 clearly applies to “upgrade.
[brief] Appellant Failed to Raise its Concerns of the Water Quality Management Planning During the Comment Period and its Late Challenge in this Appeal Should be Disregarded  Appellant raises the argument that [...] did not comply with the applicable Water Quality Management Plan (“WQMP”) for the first time on appeal.  The record of Appellant’s comments includes no objection or even discussion of [...]’s consistency assessment during the public notice and comment period.  Ra399.  Such failure to do so is fatal and a basis alone to reject Appellant’s argument.  See Pub. Serv. Elec. & Gas Co. v. New Jersey Dep't of Envtl. Prot., 101 N.J. 95, 108 (1985) (citing Bergen Pines County Hosp. v. New Jersey Dep't of Human Servs., 96 N.J. 456, 474 (1984)).  “The fundamental principle is that issues and evidence available to the individual must be raised before the agency or the right to raise them is waived[,]” and “[t]he whole scheme of the statute setting up the agency * * * would be defeated if a party could go into court and present his evidence for the first time there. ”  Bergen Pines, 96 N.J. at 474 (quoting B. Schwartz, Administrative Law §§ 114, 206 (1976)) (alterations in original) (internal quotations omitted); see also In re Adoption of N.J.A.C. 11:3-29 ex rel. State, Dep’t of Banking & Ins., 410 N.J. Super. 6, 26 (App. Div. 2009).  Appellant’s failure to raise these concerns in its public comments improperly undermines the administrative process, and Appellant should not be permitted to benefit from such gamesmanship to attack the Permit.  Appellant’s attacks on the [...]’s consistency assessment therefore should be disregarded.  B.
[brief] ’”).  However, the trial court was both legally and discretionarily in error when it rejected, both on Defendants’ motion to dismiss as well as on Appellant’s request for reconsideration, well settled law holding accrual date for malicious prosecution claims are determined by the date the prosecution actually “terminates,” in Appellant’s favor as well as settled law holding that malicious prosecution claims have a six-year statute of limitations.  As shown below, this Court should reverse.  A.
[brief] Defendant received an aggregate sentence of ten years, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.  On appeal, he argues the following points.  POINT  I  BECAUSE THE POLICE LACKED AN OBJECTIVELY REASONABLE BASIS FOR BELIEVING THAT 1207  SPRINGFIELD AVENUE WAS ABANDONED, THE TRIAL JUDGE ERRED IN DENYING THE MOTION TO SUPPRESS.  POINT II  THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE VICTIM'S IDENTIFICATION OR, ALTERNATIVELY, GRANTING THE REQUEST FOR A WADE\(^1\)  HEARING BECAUSE THERE WAS NO AUDIO, VIDEO, OR WRITTEN VERBATIM ACCOUNT OF THE IDENTIFICATION PROCEDURE, AND BASED ON THE LIMITED RECORD THAT DOES EXIST, THE SHOW-UP PROCEDURE WAS IMPERMISSIBLY SUGGESTIVE.  POINT III  THE COURT ERRED IN PERMITTING THE VICTIM'S WIFE TO MAKE AN IN-COURT IDENTIFICATION OF DEFENDANT, WHERE SHE HAD NEVER PREVIOUSLY MADE AN OUT-OF-COURT IDENTIFICATION, BECAUSE IT WAS HIGHLY SUGGESTIVE AND UNRELIABLE.  POINT IV  THE TRIAL COURT ERRED (1)  IN IMPOSING A TEN-YEAR SENTENCE FOR THIS SECOND-DEGREE ROBBERY, WHICH WAS AT THE LOW END OF THE SEVERITY SPECTRUM, AS FOUND BY THE JURY; (2) IN CONSIDERING DEFENDANT'S PRIOR ARRESTS; AND (3) IN GIVING SIGNIFICANT WEIGHT TO THE PSYCHOLOGICAL EFFECT OF THE INCIDENT ON DEFENDANT'S FAMILY.  For the reasons stated in this opinion, we conclude there is merit only to defendant's contention about his entitlement to a Wade/Henderson\(^2\) hearing.  We remand the matter to the trial court to conduct that hearing and, depending upon the outcome, to determine whether to vacate defendant's conviction.  In all other aspects, we affirm.
[brief] It is well settled that when reviewing a trial court’s sentencing decision, “[a]n appellate court may not substitute its judgment for that of the trial court. ”  State v. Fuentes, 217 N.J. 57, 70 (2014); State v. Evers, 175 N.J. 355, 386 (2003); State v. Johnson, 118 N.J. 10, 15 (1990); See also State v. O’Donnell, 117 N.J. 210, 215-16 (1989)(“[A]n appellate court should not second-guess a trial court’s finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record. ”).  This Court may only review and modify a sentence when the trial court’s discretion was “clearly mistaken. ”  *Evers*, 175 N.J. at 386; *State v. Jabbour*, 118 N.J. 1, 6 (1990); *State v. Jarbath*, 114 N.J. 394, 401 (1989).  With this limitation in mind, an appellate court can: (a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of this case makes the sentence clearly unreasonable so as to shock the judicial conscience.
[brief] Regarding the blunt injuries, [...] testified that [...] had three lacerations on the left side of his head, with no underlying injuries to the skull or brain.  (5T 145-8 to 9, 146-7 to 12, 146-20 to 24)  These blunt force injuries were not fatal by themselves.  (5T 144-24 to 145-4)  [...] had five superficial and four deep wounds to his neck that were made by “a sharp instrument” that was “[p]ossibly a knife. ”
[brief] Attorneys [...] and [...] billed 80.7 and 60.7 hours, respectively, on their attorney fee applications compared to attorney [...]’s 8.9 hours.  That was “unreasonable. ”  The Court found attorney [...]’s 81.6 hours of legal research regarding the Parol Evidence Rule to be “excessive” but still awarded two full, eight-hour workdays of research on the topic.
[brief] Assuming arguendo that it had and breached a contractual obligation to plaintiffs, that breach would not create a tort remedy for them in the absence of an independent duty owed from this defendant to plaintiffs.  Saltiel v. GSI Consultants, Inc., 170 N.J. 297, 314, 316 (2002)  For the reasons that follow, [...] neither had nor breached a common law obligation to plaintiffs to have cleared the parking lot where the subject accident occurred.  Nor did it have a common law duty to have notified [...] of the condition of the parking lot.  Plaintiffs’ arguments to the contrary are wishful thinking; they are not indicative of the law in this state.
[brief] ”  At that time, [...] noted that “this was passed.  The way it happened to me is, is quite frankly almost deceitful in that well let’s just give them this version now; we can always go back and change it. ”  1T50:21-51:4.  Even the Special Master noted that she is unaware of this ever occurring with any other municipality, during the thousands of times that she has appeared before a board in either her capacity as Special Master or an expert planner.  1T64:10-20; 1T65:5-24.
[brief] *State v. Bass*, 224 N.J. 285, 301 (2016), citing *Delaware v. Van Arsdall*, 475 U.S. 673, 678–79, (1986) (citations omitted).  “Out-of-court statements interdicted by the Confrontation Clause include both testimonial statements elicited by the police during interrogations, see *Crawford*, supra, 541 U.S. at 51-52, and testimonial statements volunteered to the police, see *Davis v. Washington*, 547 U.S. 813, 822 n.1, (2006). ”
[brief] More damaging, the surprise evidence was heard by the jury after plaintiffs had concluded their evidentiary presentation.  That substantially deprived plaintiffs' counsel of a reasonable opportunity to challenge their testimony.  Second, this was a close case from its inception in that plaintiffs had about a two-week narrow window of opportunity during which an abortion was a viable option.  Third, although the summary judgment order dismissing [...] from the case precluded defendants from arguing the "empty-chair" defense to the jury, that order did not preclude [...] from accepting more responsibility than had been the case in her depositions.
[brief] Second, the trial court erred by failing to instruct the jury to consider if the failure to make a full and complete record rendered identification evidence unreliable. \(^{12}\)  Officers must make a written record of “the dialogue between the witness and the interlocutor, and the results. ”  *State v. Anthony*, 237 N.J. 213, \(^{12}\)  The model charge warns, “Among the factors that you may consider in assessing the reliability of the identification is the failure of law enforcement officials to make an electronic recording of the identification procedure.
[brief] State v. K.P.S., 221 N.J. 266, 277 (N.J. 2015); State v. Reldan, 100 N.J. 187, 204 (N.J. 1985).  “An appellate decision which is interlocutory in the sense that it does not terminate the case nevertheless finally decides the meritorious issue. ”  State v. Myers, 239 N.J. Super. 158, 164 (App. Div. 1990).  On June 14, 2023, Respondent filed a Motion to Strike Portions of Appellant’s Brief (“Motion”).  On July 3, 2023, the Court denied Respondent’s Motion.  The arguments raised in Sections 2, 4, 4A, 4B, 6, and 6A of Respondent’s Brief are identical to the issues previously raised in Respondent’s Motion.  “It has been generally stated that the ‘law of the case’ doctrine applies to the principle that where there is an unreversed decision of a question of law or fact made during the course of litigation, such decision settles that question for all subsequent stages of the suit. ”  Slowinski v. Valley Nat. Bank, 264 N.J. Super. 172, 179 (App. Div. 1993).  (Citations Omitted).  In Respondent’s Motion, the basic argument was that Appellant raised issues that “were not properly raised below and/or are improperly before this Court as explained herein. ”  Page 3 of Motion.  Respondent presented a memorandum of law citing the legal authorities on which the argument relied.  The same argument is made again in Respondent’s Brief:  “Plaintiff respectfully submits that certain arguments raised by Defendant should not be considered by this Court because they were not properly presented to the trial court.  ...  Appellate review over an issue not properly presented to the trial court is generally unavailable. ”  (Page 11).  The Court has reviewed and rejected the identical argument in Respondent’s Motion.  Application of the law of the case doctrine will not permit Respondent to relitigate the same issues.
[brief] Had [...] testified, there was a real possibility that his testimony could have influenced the outcome of the trial.  See State v. R.B., 183 N.J. 308, 330 (2005) (“The harmless error standard ... requires that there be “some degree of possibility that the error led to an unjust result.  The possibility must be real, one sufficient to raise a reasonable doubt as to whether it led the jury to a verdict it otherwise might not have reached. ”) (internal quotations omitted).  Our Supreme Court has recognized that a Rule 609 error that prevents a defendant from testifying is rarely harmless.  See State v. Hedgespeth, 249 N.J. 234, 250-52 (2021) (holding trial court’s erroneous admission of defendant’s prior convictions must be reviewed under harmless-error standard, and noting that cases “in which such error is found to be harmless may be few in number”); see also State v. Whitehead, 104 N.J. 353, 360-61 (1986) (holding “a defendant need not testify at trial to obtain appellate review of a trial court's ruling that the defendant's convictions may be used for impeachment purposes”).  This is because there is perhaps no evidence more fundamental to a determination of guilt or innocence in a criminal trial than a defendant’s testimony, should he exercise his right to provide it.  If a defendant testifies to his innocence, and a jury finds him credible, it may acquit on that evidence alone.  Therefore, the court’s erroneous admission of [...]’s remote prior convictions requires reversal.
[brief] He tapped [...] and asked who that was.  [...] blew him off, so [...] asked again and started backing away; he thought he was being set up.  [...] said [...] reached for him, so he pushed [...] who in turn pushed the shooter, causing the gun to fall; when he reached for the gun, the shirt fell for a “fast moment. ”  After being shown video of the shooting, [...] admitted it was “a lot different from” his testimony, including a lack of pushing.  Despite the video showing him turning and running almost immediately, [...] testified he saw the shooter’s face as he backed away, and only ran after the shot.  [...] admitted he told [...] that he thought [...] had “set him up” and the shooter was [...].
[directive] Trial judges are given substantial deference in their determination of the suitability of individuals to serve as jurors.  This is because the judge is, in effect, making a credibility determination whenever there is a cause challenge.  Obviously, if the juror says that he or she cannot judge the case fairly, the juror will be excused.  It is in those cases where the jurors give the "right" answer, i.e., that they can be fair, where the judge must evaluate the reliability of that answer in light of all of the other answers the juror has given, the juror's background, and the juror's demeanor.  Judges must not mechanistically accept the "right answer" if it is placed in significant doubt by the other relevant circumstances.
[brief] See Green, supra.  Additionally, the validity of the use of the easement was an issue before [...] as part of Plaintiff’s Prerogative Writ Action, not an issue before [...].  Thus, the [...]’s determination as memorialized in the Resolution and the [...] Record is irrelevant to the Chancery case and, therefore, inadmissible.  On August 23, 2018, Defendant filed its Supplemental Application with the [...] pursuant to N.J.S.A. 40:55D-68 for a determination as to whether use of the Sixth Street Lot located on the Subject Property for parking was a pre-existing non-conforming use.