ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] (3T1, et seq.).  On September 22, 2023, defendant was sentenced to a 17-year term for his guilty plea of first-degree aggravated manslaughter, subject to an 85% period of parole ineligibility under NERA.  (4T1, et seq.).  The trial court applied aggravating factors Three, the risk he will commit another crime; Six, defendant’s criminal record and seriousness of the offenses; and Nine, need for deterrence; and also applied mitigating factor Fourteen, that defendant was less than 26 years old at the time of the offense.
[brief] ”  194 N.J. at 383 – 384 (Br. at 51).  Of course, in the case at bar, no arbitration has been held and if the “totality of circumstances” test was applied, it would be a factual issue defeating defendants’ motion for summary judgment.  Here, the “totality of circumstances” test does not need to be applied to determine that the mere filing of plaintiffs’ Answer and Counterclaim in the arbitration on March 28, 2023, with their new counsel’s repeated objections to the arbitration starting April 7, 2023, did not as a matter of law constitute a waiver of the right to object to the arbitration and the invalidity of the arbitration clause under Atalese.  Wein v. Morris involved the question of whether the parties’ extensive five years of litigation in the courts constituted a waiver of contractual arbitration rights.
[directive] I.  Curbside Warnings  A.  Definition.  A “curbside warning” is a brief, informal interaction between a law enforcement officer and a juvenile who the officer observed engage in an act of minor delinquency.4  During the interaction, the officer counsels the juvenile to discontinue the conduct, warns the juvenile about the potential consequences of future delinquency, and then concludes the interaction without taking any further action.  For the purposes of this Directive, curbside warnings do not include interactions between juveniles and School Resource Officers or other law enforcement officers assigned to a school, as those interactions are governed by policies and practices established between schools and law enforcement agencies.
[brief] [...] Db52.  This argument is also meritless.  To rescind an insurance contract on grounds of equitable fraud, a party has the high burden to demonstrate by clear and convincing evidence: (1) a material misrepresentation of a presently existing or past fact; (2) the maker’s intent that the other party rely on the misrepresentation; and (3) detrimental reliance by the other party.  First Am. Title Ins. Co. v. Lawson, 177 N.J. 125, 136-37 (2003).  To state the obvious, [...] is a concrete cutting company.  There is no evidence in this record that [...] misrepresented the work that it was performing, let alone clear and convincing evidence of a material misrepresentation.  [...]’s Contractor Enrollment Form and Notice of Subcontract Award described its work as “concrete cutting” and “saw cutting. ”  Pa424-25.  The contracted-for work done by [...] on the day of the accident was described as “core drilling” and “wire sawing. ”  Pa422.  [...] of [...] described [...]’s work as concrete cutting.  Pa991.  Concrete cutting and structural demolition are not mutually exclusive, and at most, this classification is a subjective question that cannot rise to the level of clear and convincing evidence of a material misrepresentation.  Further, even if there were an exclusion for demolition work, [...] and [...] certainly cannot prove detrimental reliance on any such misrepresentation.  After its initial exclusion for its discrete August 2015 work, [...] continued to perform a significant number of jobs on the project as evidenced by its numerous successive proposals and purchase orders from [...].  Pa875.  This continued work, after [...], [...], and the contractors were aware of [...]’s August 2015 work, leads to the inevitable conclusion that no party was relying to its detriment on [...]’s description of its work as “concrete cutting” instead of demolition.  V.  IF [...] WAS NOT ENROLLED IN THE CCIP AT THE TIME OF THE HOOD [...]IDENT, ALLIANT WOULD BE LIABLE TO PROVIDE COVERAGE DUE TO ITS NEGLIGENCE
[brief] New Jersey courts have held that payment of the correct amount owed to an improperly unlicensed assignee\(^{11}\) rather than to the originating lender is a bare procedural violation that does not qualify as ascertainable loss.  All [plaintiff] has alleged is that at some point while paying back the student loan, he began to pay [...] rather than [...].  He does not allege that this change caused him to pay a single penny more than he would otherwise have paid, or that it delayed his repayment of the loan, or that it harmed his credit rating, or that it even caused him distress, confusion, or wasted time.  . . .  [...]’s non-licensure, in this context, is exactly the type of “bare procedural violation” that does not confer standing without evidence of concrete harm.  *Browne*, 2021 WL 6062306, at *3.  See also *Woo-Padva*, 2022 WL 267938, at *4 (holding no ascertainable loss because plaintiff paid assignee the exact amount owed to originating lender).  In fact, Appellant has not paid any money to any of Respondents in the instant action and none of Respondents have collected any money from Appellant.  Pa119, ¶ 41.  See *Woo-Padva*, 2022 WL 267938, at *4 --- \(^{11}\)  As discussed *supra*, Holder Respondents were not required to be licensed under the NJCFLA.  Accordingly, there cannot be ascertainable loss because there was no violation of the NJCFA by Holder Respondents.  (“Plaintiff, however, admits that after the HSBC Account was sold to Defendant, [...] did not seek payment of the credit card account.  Thus, the record establishes that Plaintiff has not suffered any harm. ”).12  Accordingly, the Trial Court correctly dismissed Appellant’s NJCFA claim because it fails to plead ascertainable loss.
[brief] Pa201, PSOF ¶43.  No one from [...] followed up with her as to these express concerns.  Id., PSOF ¶43 & PSOF ¶45.  At 4:19 PM on March 13, 2020, Plaintiff sent an email to [...] leadership, stating “Since we have the ability to efficiently work remotely requiring us to come into the office during a pandemic unnecessarily risks our health. ”  Id., PSOF ¶46.  Although Plaintiff authored the email, it was collaboratively sent on behalf of Plaintiff and five (5) other [...] employees—[...], [...], [...], [...] and [...].  Id., PSOF ¶47.  [...] testified that she interpreted this March 13th email as “unclear,” an “ultimatum” or a “demand. ”  Pa208, PSOF ¶49.  However, [...] did nothing to follow up to gain clarity as to the intention of this email.  Id. --- \(^3\)  The trial court found it to be as well.  T34:9-21. interpreted this email as relaying a concern for health and wellbeing, but did not attempt to reach out to Plaintiff to understand the reasoning.  Id., PSOF ¶50.  Plaintiff relayed her concerns to her employer and expected an engagement process that “never occurred. ”  Id., PSOF ¶51.  Rather, approximately one hour and thirty-four minutes later, at 5:53PM on March 13, 2020, [...], the Vice President of Underwriting for [...] since 2018, responded to Plaintiff’s email terminating the employment of Plaintiff, as well as all other signatories of that email.
[brief] The officers’ decision is rendered even more reasonable in light of the well-established holding that entries into homes are subject to considerable and even heightened scrutiny than searches of other places or objects.  Reasonableness is the touchstone of the Fourth Amendment.  Riley v. California, 573 U.S. 373, 381–82 (2014) (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)).  The State asserts that law enforcement acted reasonably under all the circumstances.  D.  THE TRIAL COURT DID NOT ERR IN NOT GRANTING DEFENDANT’S SUPPRESSION MOTION AFTER THE TRIAL TESTIMONY OF THE WITNESSES WHO HAD TESTIFIED AT THE SUPPRESSION HEARING.
[directive] Conducted Energy Devices (CEDs) and other authorized less-lethal devices and ammunition are forms of Enhanced Mechanical Force which may be utilized against a Threatening Assailant or an Active Assailant, but only within the parameters outlined in this Policy and in Addendum A of this Policy.  CEDs and other authorized less-lethal devices and ammunition shall not be utilized against a passive resistor or an active resistor.  Officers shall always strive to use only that degree of force that is objectively reasonable, necessary and proportional considering the totality of the circumstances.
[brief] TABLE OF CONTENTS  TABLE OF JUDGMENTS, ORDERS AND RULINGS BEING APPEALED ..................................  iii  TABLE OF AUTHORITIES ........................................  iv  PRELIMINARY STATEMENT ......................................  1  PROCEDURAL HISTORY .........................................  3  STATEMENT OF FACTS ..........................................  4  LEGAL ARGUMENT ................................................  9  I.  THE TRIAL COURT ERRED IN ITS DETERMINATION THAT THIS MATTER DID NOT IMPLICATE THE PUBLIC INTEREST EXCEPTION  WARRANTING AN ENLARGEMENT OF THE 45-DAY APPEAL PERIOD PURSUANT TO R. 4:69-6(c) (Pa55-Pa58) .........................  9  II.  THE TRIAL COURT ERRED IN ITS DETERMINATION THAT THE NOTICE PUBLISHED BY THE TOWNSHIP FOLLOWING THE INTRODUCTION OF ORDINANCE NO. 13-2022 COMPLIED WITH N.J.S.A. 40:49-2 (Pa58-Pa61).  ...........  23  A.  The clear and unambiguous language of N.J.S.A. 40:49-2 requires the notice to include both the ordinance’s title and a separate statement of purpose prepared by the clerk.  (Pa58-Pa61)  ..................  24  B.  Even assuming, arguendo, that N.J.S.A. 40:49-2 was not clear and unambiguous, the statute’s legislative history leaves no doubt as to the drafters’ intent for the notice to include both the ordinance’s title and a separate statement of purpose prepared by the clerk.  (Pa58-Pa61)  ...........................................  26  C.  The notice published in advance of the hearing and passage of Ordinance No. 13-2022 was deficient because it did not include a separate statement of purpose prepared by the clerk.  (Pa58-Pa61)  ........  29  D.  Ordinance No. 13-2022 is void because its hearing and passage was preceded by defective notice.  (Pa58-Pa61)  .  .35  III.  THE TRIAL COURT ERRED IN ITS APPLICATION OF THE STANDARD OF REVIEW FOR A MOTION TO DISMISS BROUGHT PURSUANT TO R. 4:6-2(e) (Pa54-Pa55; Pa62).  .............................  37  CONCLUSION
[brief] BRIEF AND APPENDIX  ON BEHALF OF DEFENDANT-APPELLANT  [...]  Public Defender Office of the Public Defender  Appellate Section 31 Clinton Street, 9th Floor  Newark, NJ 07101 [...]  [...]  Assistant Deputy Public Defender  [...]  Attorney ID: 446232023  Of Counsel and on the Brief  Dated: January 10, 2024  DEFENDANT IS CONFINED TABLE OF CONTENTS
[brief] Hearing Tr. 68:19.  Significantly, [...] does not cite to any case where a New Jersey court compelled arbitration after this many years of litigation, nor has our research revealed any reported or unreported New Jersey state case.  The lone case cited by [...] in defense of a six-year delay, *Fasano v. Li*, No. 16 CIV. 8759 (KPF), 2023 WL 6292579, at *10 (S.D.N.Y. Sept. 27, 2023), is not a New Jersey case.  It is an unreported federal decision from New York that did not analyze the seven *Cole* factors and has no precedential value here.  Db28n.10; Da302.
[brief] The Missouri Action And Jurisdictional Discovery In This Case. **  On September 1, 2017, defendants filed a multi-count Petition against plaintiff in the Circuit Court of St. Louis County, Missouri.  (Pa082).  Then, on September 5, 2017, defendants filed two interrelated motions to dismiss the New Jersey Action.  The first motion, filed by defendants [...] (“[...]”) and [...] (“[...]”), sought to dismiss plaintiff’s claims against them for lack of personal jurisdiction.  (Pa481-483).  The second motion, filed by [...], [...], and [...], sought to dismiss this entire case on the basis of comity and because [...] and [...] are indispensable parties who cannot be joined due to the lack of personal jurisdiction over them.  (Pa484-486).  After briefing and oral argument, [...] denied both motions, without prejudice to refiling “subject to further jurisdictional discovery proceedings. ” (Pa505, Pa511).  The parties engaged in jurisdictional and some merits discovery over the next few years.\(^5\) (Da004-005).  For most of that time period, and apparently in response to the parties’ requests to stay the case while they explored the possibility of resolving the dispute, this case was in a state of administrative dismissal.  (Pa064, Da005).  This case remained stayed and dormant (and reflected on the system as “dismissed by the Court without prejudice”) until August 1, 2022 when it was set for trial.
[brief] A judge found probable cause to issue a warrant for the judge's arrest on four criminal charges after [...] presented evidence to him.  Disclosure of documents, including emails, concerning the [...]'s failure to prosecute these serious criminal charges would not discourage citizens from providing information to the government.  In fact, disclosure would have the opposite effect.  Citizens will be encouraged to provide information to the government if the documents reveal a fair and unbiased decision making process.  (2) the effect disclosure may have upon persons who have given such information, and whether they did so in reliance that their identities would not be disclosed;
[brief] Significantly, the land lease contained a “CONFIDENTIALITY” covenant in Section 10.9: 10.9.  Confidentiality.  Lessor shall maintain the strictest confidence (a) the terms of (including the amounts payable under) this Agreement; (b) any information regarding Lessee’s operations; and (c) any other information that is proprietary or that Lessee requests be held confidential, in each such case whether disclosed by Lessee or discovered by Lessor (“Lessee Confidential Information”).  . . .  Lessor shall not use any Lessee Confidential Information for its own benefit or publish or otherwise disclose it to others; provided, however, that Lessor may disclose Lessee Confidential Information to (I) Lessor’s personal advisors, (ii) any prospective purchase of the Property, (iii) in any legal proceeding to enforce Lessor’s rights under this Agreement, or (iv) pursuant to lawful process, subpoena or court order; so long as in making such disclosure Lessor advises the person receiving the Lessee Confidential Information of the confidentiality thereof and obtains the agreement of said person not to disclose such Confidential Information.  . . .  The parties shall consult each other and use all reasonable efforts to agree on the content and manner of any public disclosure.
[brief] *Fairclough v. Baumgartner*, 8 N.J. 187, 190 (1951).  This evidence must show there is action by the dominant tenant respecting the use authorized indicating an intention never to make the use again.  See *Leasehold Estates, Inc. v. Fulbro Holding Co.*, 47 N.J. Super. 534, 563 (App. Div. 1957).  While abandonment is generally exhibited by intent and prolonged lack of use, a servitude benefit is extinguished by abandonment when the beneficiary relinquishes the rights created by the servitude.
[brief] TABLE OF CONTENTS  Table of Judgments, Orders and Rulings..................................  iii  Table of Authorities................................................................ iv-vi Statement of Procedural History..............................................  1-2  Statement of Facts.....................................................................3-15  Trial Court Errors....................................................................16  Legal Argument: POINT I – STANDARD OF REVIEW.................................17  POINT II - THE TRIAL COURT BELOW  ERRED IN IGNORING  UNCONTESTED  FACTS IN THE RECORD (Pa 66-78; 95-96; 122; T1 at 53:11-17; 69:12-71:10; 101:6-23; 102:1-5; 103:1-104:1; 104:16-24; 105:16-106:11; 108:10-25; 111:10-11; 186:10-25; 187:17-25; T2 at 143:16-144:1; T3 at 8:6-8; 13:14-14; T4 at 4:16; 12:1-2; 13:10; 22:5-7; 23:23-24:3; 24:18-25; 25:4-7; 25:23-26:19)  ...........................................................................18-21  POINT III - THE TRIAL COURT BELOW ERRED IN MAKING FACTUAL FINDINGS THAT ARE NOT SUPPORTED BY THE RECORD (T1 at 57:21-58:11; 58:25-59:5; 59:11-16; 60:6-9; 61:22-25; 62:1-23; 64:4-66:14; 85:408; 101:6-12; 103:16-104:1; 105:16-106:11; 153:2-5; 153:20-21; 154:23-24; 155:1-6; 157:21-22; T3 at 16:13-23; 16:25-17:10; 20:8-21:14; 30:20-33:18; T4 at 25:2-4)  ...........22-23  POINT IV - THE TRIAL COURT BELOW FAILED TO FOLLOW THE LAW WITH REGARDS TO PREEXISTING NON-CONFORMING USES (Pa 37-47; 55-59; 66-75; 158-162; T4 at 21:7-9; 21:17-22:4; 25:5; 27:3-7) .......................................................24-27 POINT V - THE TRIAL COURT BELOW ERRED IN CONCLUDING THAT THE USE APPROVED IN THE 1984 RESOLUTION HAD NOT BEEN EXPANDED (T4 at 24:11) .................................................. 28-29 POINT VI - THE TRIAL COURT BELOW ERRED IN FAILING TO CONCLUDE THAT THE "FOOD STORE USE" THAT WAS PURPORTEDLY ESTABLISHED IN 1932 BY FRED ZITO WAS NOT ABANDONED IN 1969 WHEN SAID USE WAS REPLACED BY A TV SALES AND SERVICE SHOP (Pa 66-68; T4 at 25:14-27:7) ........................................... 30-31 POINT VII - THE TRIAL COURT BELOW ERRED IN NOT ISSUING AN INJUNCTION RESTRAINING AND ENJOINING THE FOOD USE AND [...] CURRENT OPERATION (T4 at 19:10-21:2) .................................................. 32 POINT VIII - THE DEFENDANTS' OPERATION OF [...] HAS BEEN AND CONTINUES TO BE A NUISANCE SINCE THE DAY IT OPENED IN MAY 2020 AND THE TRIAL COURT BELOW ERRED IN NOT SO RULING (T4 at 27:8-32:7) .................................................. 33-35  POINT IX - DEFENDANTS CANNOT RELY UPON THE INVALIDLY ISSUED ZONING PERMIT IN MARCH 2020 (Pa 88-90; 95-96; 118-122; T1 at 53:23-54:13-16) .................................................. 36-38  Conclusion ........................................................................ 39
[brief] (Da 123)  Trial counsel had represented to the defendant that he had subpoenaed a representative from the [...] in Charlotte, North Carolina.  However, it was not until a court appearance before the trial judge on or about October 20, 2016, when trial counsel told the Judge that he had not subpoenaed any witnesses from the [...] in Charlotte, North Carolina.  (Da 123 to 124) (15T 152).  The defendant’s certification and Verified PCR Petition places material issues of fact in dispute that trial counsel was paid to obtain the services of several experts, which he knowingly misrepresented to the defendant were retained and would be called on his behalf for the trial.
[brief] On February 16, 2022, [...] submitted an application to the [...] for Preliminary and Final Major Subdivision Approval; Preliminary and Final Site Plan Approval and Bulk Variance/Design Waiver Approval, all related to the development of a 90.88 +/- acre property, located along [...] with access along a private road, known as [...] in [...] (the “Property”).  (Pa001-Pa055).  The Property was then shown as Block 41.01, Lot 31 on the Official [...] Tax Maps¹ (1T23-23 to 1T23-24).  The --- ¹
[directive] ”7 they can direct resources to address violent crime and other criminal  To date, ARRIVE teams have helped over 2,800 individuals suffering from mental health or emotional distress, effectively eliminating the use of force and arrests and producing better healthcare outcomes.  Additionally, New Jersey’s Recovery Courts, Veterans Diversion Programs, and Mental Health Diversion Programs are successful for many of those who utilize them, but they still require entry into the criminal justice system.  Utilizing the criminal justice system as a source of treatment often has the effect of creating additional harms to the individual seeking help.  Finally, over the past five years, the Administration of [...], the State Legislature, and this Department have invested millions of dollars of opioid settlement funds into strategies that reduce and prevent addictions and overdose due to opioids and other drugs.
[brief] N.J.S.A. 52:14B-2.  "A State agency shall follow the administrative rule-making requirements set forth in the [APA], and shall only implement rules that have been adopted in accordance with those rule-making requirements."  N.J.S.A. 52:14B-3a(a).  Moreover, "[n]o State agency shall utilize regulatory guidance documents that have not been adopted as rules in accordance with [the APA] unless the agency makes such documents readily available to the regulated community through appropriate means, including but not limited to posting in a prominent place on the website for the agency."  N.J.S.A. 52:14B-3a(b).  "A regulatory guidance document that has not been adopted as a rule pursuant to [the APA], shall not: (1) impose any new or additional requirements that are not included in the State or federal law or rule that the regulatory guidance document is intended to clarify or explain; or (2) be used by the State agency as a substitute for the State or federal law or rule for enforcement purposes."  N.J.S.A. 52:14B-3a(c)(emphasis added).
[brief] 17 Nextel of N.yu. v. Borough of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22 (App. Div. 2003)  .....................................................  17 Nigito v. Borough of Closter, 142 N.J. Super. 1 (App. Div. 1976), certif. den., 74 N.J. 265 (1977) .......... 19 Randolph Town Ctr. v. Randolph Twp., 324 N.J. Super. 412 (App. Div. 1999) ................................................... 42-44 Ring v. Mayor and Council of Borough of Rutherford, 110 N.J. Super. 441 (App. Div. 1970)
[brief] The statute, in relevant part, eliminated multiple member status for members enrolled in PERS after May 21, 2010, such that a member would only be eligible for membership based upon one office, position or employment held concurrently.  N.J.S.A. 43:15A-25.2(a).  The statute allowed a member already holding multiple member status prior to May 22, 2010, to remain “while the member continues to hold without a break in service more than one of those offices, positions, or employments. ”
[brief] The statute itself dictates that only the Board has the power to grant variances in Florence “…which shall not be exercised by any other body except as provided in this act. ”  NJSA 40:55D-20.  The practical effect of Plaintiffs’ erroneous reading of Ferraro would be to vest the zoning authority of [...]’s governing body and the and variance authority of the Board in [...]’s governing body in direct contravention of the statute and the decision in Ferraro.