ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] [...] voluntarily consented to the retrieval of the video recordings from the residence.  As observed in the video, [...]’s initial opposition to the police entry into the residence was based upon him being informed by [...] that the police were going to search the home for firearms based on the shooting that had taken place and guns may be stashed in the house.  (3T29-20 to 24; 3T33-12 to 18)(Ra17).  As can be seen on the BWC, once [...] is aware that the police are merely seeking to retrieve the video, [...]’s demeanor is markedly different.  Once it was explained to him by [...] (as opposed to the representations of the patrol officer) that the entry was merely to retrieve the video and not to conduct a full search of the residence he agreed to allow the entry.  Contrary to the assertion in the defendant’s brief, the “change of heart” had nothing to do with the landlord’s consent but, instead, was based upon the change in his understanding as to what the scope of the entry entailed.  His concern was that the police not have an unfettered search of his residence—not the retrieval of the video recordings.  In fact, when read the consent form and prior to signing, he questioned the officers to make sure that he was only allowing them to retrieve the video recordings.  (3T91-18 to 22).  This is evidence of what was driving his previous objection and of his understanding that he could still refuse entry and that he did not have to consent.  Further, he was advised that he could be present during the search and withdraw his consent at any time.  (3T91-15 to 18).  In determining whether the consent to allow entry was valid, the Court must look at the totality of the circumstances.  *State v. King*, 44 N.J. 346 (1965).  The State would submit that a review of the BWC is of particular value in resolving this issue.  While the defendant pointed out that [...] initially refused entry, this factor is easily explainable and by no means dispositive.  Other factors clearly demonstrate that the consent was voluntary: [...] was not the target of the investigation (and neither was the defendant as the police were still trying to determine what happened with the shooting); the items sought to be recovered were surveillance videos and not contraband; [...] was not detained; [...] was read the consent to search form informing him he had the right to deny entry; and the fact that the landlord had already indicated he did not object to the entry.  As such, Mills. Jr.’s consent was valid and the entry into the residence lawful.
[brief] The Board finds from the testimony presented, subject to the conditions agreed upon by the Applicant and those imposed by the Board, that the Applicant has satisfied the positive and negative criteria requirements and has shown special reason for the Use Variance for this project pursuant to N.J.S.A. 40:55D-70(d)(1), and the Board adopts the Applicant’s testimony, specifically that of their Planner in this regard....  M36-37.  As highlighted by the Trial Court, in the 2016 Resolution the Board specifically adopted the testimony of Plaintiffs’ professional planner, [...].  Yet in 2018 the Board arbitrarily and capriciously ignored and discounted the testimony of the same planner as to the same issues - despite hearing no contrary testimony:  A mere two (2) years since its explicit findings in granting the 2016 Approval, the only thing that changed was the unexpected discovery of the bald eagle’s nest and resultant need to (i) reconfigure the site plan to accommodate the federally mandated 660-foot buffer and at the same time, (ii) maintain the affordable unit yield required by the HEFSP, the Judgment of Compliance, and the 2016 Approval itself.
[brief] On October 24, 2024, defendant filed his notice of appeal.  (Da27-31).  ____________________  2  Defendant’s transcript citations are adopted, as follows: 1T – motion transcript – August 18, 2023; 2T – motion transcript – October 20, 2023; 3T – plea transcript – March 4, 2024; 4T – sentencing transcript – April 19, 2024.
[brief] Pa2.  The Resolution of Support aspect of an application arises from the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (the "NJCREAMM Act"), N.J.S.A. 24:61-36, et seq. which provides, in relevant part, that an applicant for a Class 5 cannabis retailer license include:  [a] description of the proposed location for the applicant's site, including the following, if applicable:  The submission of proof of local support for the suitability of the location, which may be demonstrated by a resolution adopted by the municipality's governing body indicating that the intended location is appropriately located or otherwise suitable for activities related to the operations of the proposed cannabis cultivator, cannabis manufacturer, cannabis wholesaler, cannabis distributor, cannabis retailer, or cannabis delivery service.  N.J.S.A. 24:61-36d(1)c(iv)  (Emphasis added)
[brief] [Da118-119].  The plan actually shows side yards of 103.6 and 76.5 feet, respectively, for a combined side yard of 180.1 feet, which exceeds the required 178.7-foot requirement.  [Pa256].  The resolution wrongly utilizes a 102.1-foot side yard setback on the north side, which is measured to a roof overhang.  But § 230-130(D)(1) of the LUDO expressly permits a 2-foot roof overhang into a required yard, so the roof overhang cannot be included, as the combined side yard is only 1.4 feet more than required.  [Pa325].  standards designed for permitted uses may not be applicable.  *Price*, *supra*, 214 N.J. at 299 (“There is little doubt about the fact that a use variance, by its nature, carries with it the implication that the ordinary bulk and density requirements of the zone will not be applied”); *see also, Kramer*, *supra*, 45 N.J. at 295 (“it is obvious that the height and front yard restrictions are intended to apply to single-family residences”); *Puleio v. Bd. of Adj.*, 375 N.J. Super. 613, 621 (App. Div.) certif. den. 184 N.J.
[brief] Here, despite acknowledging that all parties requested oral argument, Defendants collectively argue that the need for oral argument was rendered moot by virtue of the Rule 104 Hearing.  However, in attempting to rationalize the trial court’s failure to conduct oral argument, Defendants ignore the fundamental difference between the purpose of a Rule 104 Hearing and the purpose of a summary judgment motion.  The purpose behind a N.J.R.E. 104 is to determine the qualifications of a witness, the existence of privilege, and/or the admissibility of certain expert testimony but it is not meant to be used to substantiate the entirety of Plaintiffs’ proofs.  N.J.R.E. 104; R. 4:46-1, et seq.  The only issue addressed during the Rule 104 Hearing was the admissibility of the testimony of Plaintiffs’ expert.  Therefore, the presentation of evidence and any argument presented in connection therewith was limited to issues relevant to that testimony.  Accordingly, Plaintiffs were deprived of the opportunity to present other evidence that was not necessary for the purpose of the Rule 104 Hearing and which would have helped provide the court with an independent basis to deny Defendants’ summary judgment motions.  Although the decisions as to the admissibility of the testimony of Plaintiffs’ expert made by the trial court as a result of a Rule 104 hearing may have an effect on the evidence to be considered when addressing a summary judgment motion, the Rule 104 Hearing is not a substitute for oral argument.  Ultimately, the trial court’s failure to conduct oral argument as well as failing to adhere to the standards required by Rule 4:46-2 amounts to reversible error that, respectfully, must be corrected.
[brief] These “guys,” he said only wanted to “help them” to make the delivery to the person who was going to pay them and intimated that if she didn’t want to talk perhaps [...] would (“We can do it with one person [or] we can do it with two people…” (1T176 -12 to 23).  [...] returned to the Ford F-150, removed and arrested [...] Jacobs,\(^7\) and searched him, finding a key to the rear enclosed portion of the truck.  A search revealed eight duffle bags containing suspected marijuana.  (1T34-12 to 1T35-3).  [...] and [...] were transported to the [...] along with their vehicle, where further investigation was turned over to Special Agents of the [...] and to a [...] special agent with whom they worked.  \(^7\)  [...] characterized the status of [...] and [...] at this point not as an “arrest” but as being “officially detained [for] a drug investigation (1T184-19 to 22), stating that he wasn’t into a “drug investigation” during his previous un-Mirandized accusatory questioning of questioning of [...].
[brief] A person is guilty of stalking, a crime of the fourth degree, if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his safety ---  6  As it was in this case, harassment can be upgraded from a petty disorderly persons offense to a fourth-degree crime if the communication at issue is “knowingly direct[ed] . . . to a current or former judge that relates to the performance of the judge’s public duties.
[brief] See R. 4:42–9(b).  These include the reasonableness of the fees charged given the task and the skill level of the attorney.  RPC 1.5(a).  The Family Part Judge also should consider the following factors in an award of fees: (a) the financial circumstances of the parties; (2) the ability of the parties to pay their own fees or to contribute to the fees of the other party; (3) the reasonableness and good faith of the positions advanced by the parties both during and prior to trial; (4) the extent of the fees incurred by both parties; (5) any fees previously awarded; (6) the amount of fees previously paid to counsel by each party; (7) the results obtained; (8) the degree to which fees were incurred to enforce existing orders or to compel discovery; and (9) any other factor bearing on the fairness of an award.
[brief] The Resolution in Paragraph 17 acknowledges the concerns raised by interested citizens about the height of the buildings to be constructed on the property.  The Resolution states that as a condition of approval the Applicant shall be required to meet with the Borough Engineer in good faith to evaluate the overall stormwater collection system and alternative components in an effort to reduce proposed finished grades at the front section of the triplex buildings facing Osprey Lane without compromising the efficiency of the proposed stormwater collection system.  [...] was not required to accomplish a reduction of finished grades, but requires the Applicant to make a good faith effort to consider alternative design that would reduce the finish grades so as to reduce the height of the buildings and their impact upon Osprey Lane.  (Pa79).  The Resolution in Paragraph 19 acknowledges that it received a number of written comments from members of the public and also provided full opportunity for interested residents to present their views on the Application including the building height.  The Resolution concludes that the Applicant’s professionals provided sufficient expert testimony, exhibits and reports to satisfactorily address these issues subject to the conditions contained in the Resolution.  The Resolution further concludes that with the exception of the minor design standard waivers requested by the Applicant, the proposed plans comply with the requirements of the Ordinance and the Settlement Agreement entered into by the Borough to meet its Affordable Housing obligation.
[brief] ”  *Lombardi v. Masso*, 207 N.J. 517, 536 (2011) (internal quotation omitted); see also *Wolf v. Edison Properties*, No. MID-L-000116-16, 2019 WL 2396994, at *1–2 (N.J. Super. Law Div., Middlesex Cnty. Jan. 28, 2019) (citing Lombardi and denying reconsideration where the Court had previously “read and considered all of the voluminous papers presented by the parties” and the motion for reconsideration was “simply a rehash of its prior arguments”; “undoubtedly, [...] disagrees with the Court’s decision . . . But it is not a valid basis for a motion for reconsideration”).  A party seeking reconsideration must show more than a disagreement with the court’s decision, and ‘recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party’s burden’ . . . such a rehash cannot establish that the ‘interest of justice’ [under Rule 4:42-2] require reconsideration and reversal.  Zucco v. Walgreen Eastern, Co., Inc., No. BER-L-005482-19, 2022 WL 1696351, at *4 (N.J. Super. L., Bergen Cnty. Jan. 18, 2022) (citations omitted); see also Atl. Fabrication & Coatings, Inc. v. SIM/Mestek Mach., Inc., No. BER-L-003727-17, 2019 WL 13178933, at *2 (N.J. Super. L., Bergen Cnty.  Apr. 16, 2019) ([...], J.S.C.) (denying reconsideration where movant repeated previous arguments, as mere “[d]isagreement with the Court’s decision is not a basis for reconsideration”).  Indeed, as the Court in D’Atria v. D’Atria framed the analysis, so long as the court’s decision was not arbitrary, capricious, or unreasonable, the court should decline to engage in the reconsideration process, and instead the disappointed party must seek relief from a non-final order by a motion for leave to appeal.
[brief] 36  A.  There is Competent Record Evidence to Support the Finding That [...] Suffered a Drug Overdose .............................  36  B.  The Finding of Appellant’s False Statements is Based in Fact ............................................................................  37  C.  The Record Supports a Finding of Concealment and Narcotics Abuse .................................................................  42  D.  [...] Did Not Rely on [...] as an Expert Witness in Substance Abuse ..............................................  44  POINT III: APPELLANT'S TERMINATION WAS JUSTIFIED .......
[brief] RESPONDENT’S ILL-DEFINED FIRST AMENDMENT ARGUMENT FAILS BECAUSE IT WAS WAIVED BELOW, AND BECAUSE THE LEGISLATURE AND THE COMMISSION HAVE SPOKEN CLEARLY ON THIS ISSUE (Ca014-019)  Respondent essentially asserts that no school board member could ever make any statement which could be subject to the Commission’s jurisdiction.  Rb11.  Respondent provides no First Amendment analysis in support of this proposition, nor does Respondent address the Commission’s robust body of caselaw addressing this precise issue.  Respondent also waived this affirmative defense below.  First, Respondent waived any such affirmative defense by failing to raise it in both her Answer and her Amended Answer before the Commission.
[brief] **POINT V**  **THE MATTER SHOULD BE REMANDED FOR RESENTENCING BECAUSE THE SENTENCING PROCEEDING WAS REPLETE WITH ERRORS.**  (6T 10-24 to 14-19)  The court sentenced [...] to a seventeen-year prison term subject to NERA.  (6T 14-10 to 14; Da 5)  In reaching this sentence, the sentencing court committed numerous errors.  First, the court found that aggravating factors three, six, and nine were applicable, but it did not provide any factual basis for applying aggravating factors three and nine.  N.J.S.A. 2C:44-1a(3), (6), (9).  (6T 10-24 to 11-14)  Second, the court failed to assign a particular weight to any of the aggravating factors it found.  Third, while the court found that mitigating factor four was applicable, it improperly did not weigh that factor “particularly heavily,” despite the credible evidence that [...]’s conduct was motivated by a severe substance abuse disorder.  (6T 12-4 to 16)  Fourth, the court imposed a sentence at the higher end of the sentencing range without any explicit balancing of the aggravating and mitigating factors.  Finally, the court imposed this seventeen-year sentence consecutively to a ten-year prison term [...] is currently serving without conducting a fairness analysis pursuant to State v. Torres, 246 N.J. 246, 268 (2021).  Accordingly, if this Court does not agree that [...]’s conviction should be reversed, his sentence should be vacated and the matter remanded for resentencing.
[brief] At best, defendants make an argument from the silence of their own clients; but we shouldn’t presume that silence equals approval or even acquiescence.  Second, even if the defendants did not object, public entities may not waive conflicts.  Furthermore, the right to counsel of one’s choosing is not unlimited.  As our Supreme Court has noted, “a person’s right to retain counsel of his or her choice is limited in that ‘there is no right to demand to be represented by an attorney disqualified because of an ethical requirement. ’”  Dewey, 109 N.J. at 218 (citing Reardon, 83 N.J. at 477) (emphasis added).
[directive] Additional Prosecutor County of a authority the limit to construed shall be Directive in this Nothing and/or contact jurisdiction  Prosecutor's within the operating officers and agencies that require to approval such where offenses for prosecutors assistant designated from approval charging obtain involving than those other offenses persons disorderly (e.g., Directive this by required is not apply).  2C:25-21(a)(1) (4) to N.J.S.A. in specified grounds the of any where violence domestic 2016.  October 31, on operational become shall Section This Counties. in Multiple Committed Are Offenses
[brief] Ja215; (4T 72:9-25 through 75:1-14).  The lands surrounding the Interstate 295 and Florence-Columbus Road Interchange, and this Property in particular, were targeted for commercial and industrial --- 5  Notably, the professional planner hired by [...]’s Mayor and Council to oppose this application, [...], PP, AICP, authored both plans.  Ja167; Ja199; 3T 24:3-4. development.  Yet, Defendant ignored this regional planning document as well as Mansfield’s zoning ordinance and redevelopment plan of this area.
[brief] Initial Manifestation  New Jersey applies the first manifestation rule to determine which commercial general liability policy must respond to an “occurrence” causing bodily injury and property damage claims.  Hartford Acci. & Indem. Co. v. Aetna Life & Cas. Ins. Co., 98 N.J. 18, 28 (1984).  Under this theory, only the policy in effect when the injury first manifests is triggered.  This is required because the “occurrence” within the meaning of an “indemnity policy is not the time the wrongful act was committed but when the complaining party was actually damaged. ”  Muller Fuel Oil Co. v. Insurance Co. of North America, 95 N.J. Super. 564, 578 (App. Div. 1967); Memorial Properties, LLC v. Zurich American Ins. Co., 210 N.J. 512 (2012).  For certain latent, progressive injuries like asbestosis, however, New Jersey Courts have used a continuous injury trigger.
[directive] In addition to identifying the applicable criterion/criteria listed in Rule 3:3-1(d), the law enforcement officer or prosecutor applying for a complaint-warrant shall advise the court or judicial officer as to the specific facts or circumstances the State relies upon to overcome the presumption of charging by complaint-summons set forth in Rule 3:3-1(c) (e.g., the results of the automated pretrial risk assessment; the manner in which the crime was committed; gang affiliation; etc.).  See also Section 5 (Preliminary Law Enforcement Incident Report documenting certain case-specific facts to be incorporated by reference in the Affidavit of Probable Cause submitted as part of the application for a complaint-warrant).
[brief] Plaintiff argues that the Foreclosure Court mistakenly relied on *Atwater v. Underhill*, 22 N.J. Eq. 599, 602 (E. & A. 1872) (Pa94) holding that an extinguishment of the underlying debt also extinguishes the mortgage.  Plaintiff argues that the underlying debt was not extinguished because two years after the recording of the discharge of mortgage, a bankruptcy preference action was filed against Plaintiff which ended with a voluntary payment by Plaintiff to the trustee.  The bankruptcy preference action does not revive the extinguished mortgage.  Plaintiff cites no authority for this argument because there is none.  **B.
[brief] That intent was frustrated by Defendant’s negligent drafting of Article Third of [...]’s Will.  That negligence caused the Probate litigation and resulted in a windfall to [...] at [...]’s expense.  [...] did not intend for [...] to benefit from his Will.  (Pa000156).  [...] was never mentioned during [...]’s discussions with [...] concerning his intentions leading up to the July 1, 2014 meeting with [...].  (Pa000156-Pa000157, Pa000166).  She was not mentioned during the July 1, 2014 meeting between [...], [...] and [...].  (Pa000156-Pa000157, Pa000202).  [...]’s name was not mentioned at any time while [...] reviewed the drafts of the Will with [...].  (Pa000156-Pa000157, Pa000165).  Nor was [...] mentioned during the meeting between [...] and [...] when [...] signed the Will.  (Pa000212,Pa000215).  [...] believed that canceling the debt had an indirect impact on [...], because the debt was a joint and several obligation; [...] did not, however, discuss his belief with [...].  (Pa000216,Pa000259).  [...] died on January 23, 2015.
[brief] I don’t know if this -- you’ve ever had a pump house used as a marker for -- THE COURT:  Well, any structure, really, has been brought before me in the past.  . . .  So it very well may be something you want to take up on appeal.  I just don’t see the merit in it.  *I think that the statute’s clear on its face.  You can’t have a loaded weapon within 450 feet of a structure.*  (2T14-6 to 15-18)  The municipal court’s reasoning is correct – the statute is constitutional and clear on its face and as applied.  **CONCLUSION**
[brief] For the foregoing reasons, Petitioner-Appellant [...], by and through his undersigned attorney, [...], Esq., respectfully requests entry of an Order reversing the Board’s ruling and directing it to accept Fermin’s application for permanent disability and determine its *bona fides* on the merits.  Alternatively, a remand is requested to conduct an evidentiary hearing as to the enforceability of the settlement agreement.  Respectfully submitted, by: /s [...]  ERIC V. KLEINER, ESQ.
[brief] ”).  A zoning board’s decision must be “supported by substantial evidence in the record and reflect a correct application of the relevant principles of land use law. ”  Lang v. Zoning Bd. of Adjustment, 160 N.J. 41, 53, 58-59 (1999).  A zoning board’s decision to grant or deny a variance that is not supported by substantial evidence in the record is “arbitrary, capricious, or unreasonable” and should be set aside.
[brief] (Ca1-2).  The State initially (in its opening suppression brief dated July 30, 2021 and filed July 31, 2021; Ca3-22) argued against an evidentiary hearing and the State requested that a hearing be conducted pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 274, 57 L.Ed.2d 7 (1978) ("Defendant is not entitled to an evidentiary hearing regarding the evidence seized pursuant to the presumptively valid search warrant, as defendant has not shown that the information relied upon to issue the --- 2 "Da" denotes defendant's appendix.  3  "Ca" denotes Confidential Appendix separately filed pursuant to R. 1:38-3(b)(1) and R. 3:5-6(c).  search warrant was untrustworthy or false;" (Ca15).  Following the filing of defendant's brief dated September 10, 2021 (filed on September 13, 2021; Ca86-104), at oral argument on August 16, 2022, the State reversed course and explained "it is the State's intent to proceed on a Franks argument and give argument as to that."