ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] As the trial court pointed out, “[i]t is clear from the face of the ordinance [] that the Borough envisioned and permitted a change in grading on the property as being allowable in determining the ‘building height. ’”  (Pa13.)  The trial court explained that applicants must present evidence “that the change in grade was made for an engineering, stormwater or other purpose and not to enhance the height of the structure, [and] an objector can contest that the regrading was performed for the stated purpose. ”  (Pa15.)  Plaintiffs’ proffered interpretation of the word “designed” is that any revised grading that has the effect or result of increasing the building height (from the original grade) cannot measure height from the revised grade.  Aside from being a circular argument, under Plaintiffs’ interpretation, one could never use a revised grade that increased the grade of the property, even if slightly, because that would have the effect of increasing the building height.
[brief] On appeal, "the test is not whether an appellate court would come to the same conclusion to the original determination was its to make, but rather whether the fact finder could reasonably so conclude upon the proofs. ”  *Brady v. Bd of Review*, 152 N.J. 197, 210 (1997) ("*Charatam v. Board of Review*, 200 N.J. Super. 74, 79 (App. Div. 1985).  So long as the "factual findings" are supported by sufficient credible evidence, courts are obliged to accept them.  *Ibid.*  Nevertheless, if the Court's review of the record shows that the agency's finding is clearly mistaken, the decision is not entitled to judicial deference, *See H.K. v. Department of Human Services*, 184 N.J. 367, 386 (2005); *L.N. v. State, Div. of Med. Assist. and Health Servs.*, 140 N.J. 480, 490 (1985) nor is this Court bound by the agency's interpretation of a statute or its determination of a strictly legal issue.
[brief] Virtually all of the testimony of [...] which has been cited by the [...] are disputed facts.  To the extent the [...] relies upon these statements in support of its request that the Appellate Division uphold a *summary judgment* ruling, these disputed facts weigh heavily against the [...].  The [...] further cites purported facts and evidence which are entirely irrelevant to the issues raised on appeal.  ([...]’s Brief at page 13).  For example, whether or not Plaintiffs obtained experts is entirely irrelevant to the narrow issue raised on appeal regarding whether or not there has been a taking.  Whether the Plaintiffs were able to articulate their damages during a deposition of Plaintiffs’ representative is entirely irrelevant to the issue as to whether or not there has been a taking.  The [...] further misstates that electrical bills were never provided during the course of discovery.  Electrical bills were clearly provided during the course of discovery.  [...]’s counsel was a recipient of this discovery.  (Pa000941).  [...] further claims that Plaintiffs asserted new arguments during the motion for reconsideration.  Specifically, whether or not consent provided by Plaintiffs for certain entries was “informed consent. ”  [...]’s argument is absurd.  At every stage of the proceeding, Plaintiffs argued that the Defendants had failed to adequately inform the Plaintiffs of the scope of the ASDS being installed on Plaintiffs’ property, and that consent was given under threat that Plaintiffs’ business would be shut down if he did not consent.  (Pa000619; Pa000777 at ¶ 19-20; Pa000333, page 80, line 2 to line 15; Pa000339, page 103, line 3 to line 14; Pa000371, page 232, line 4 to line 22; Pa000777 at ¶ 16; Pa000333, pg. 80, line 9 to line 15; Pa000333, page 81, line 9 to line 14; Pa000353, page 158, line 18 to line 24).  [...] states that [...] consented to [...]'s proposed scope of work, but [...]'s proposed scope of work for the installation of the ASDS was never provided to the Plaintiffs in obtaining Plaintiffs' consent for the installation of the system, and no evidence, whatsoever, has been produced to the contrary.  (Pa000370, page 229, line 8 to line 15; Pa000804).  [...]'s statement of facts is rife with factually inaccurate information which undermines [...]'s arguments.  REPLY BRIEF IN FURTHER SUPPORT OF REMAND AS TO [...] AND [...].
[brief] The sentencing transcript, rather than the judgment of conviction, should be considered the true source of the sentence.  See State v. Walker, 322 N.J. Super. 535, 556 (App. Div. 1999); State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956).  When the JOC and the sentencing transcript conflict, "[i]t is firmly established that the sentencing transcript is 'the true source of the sentence.'"  State v. Walker, 322 N.J. Super. 535, 556 (App. Div. 1999) (quoting State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956)).  Ultimately, the issue is whether this was a new sentence or it was in fact a clarification of the sentence imposed on February 17, 2022.  The trial court submitted a letter that she believes this was simply a clarification.  The sentencing transcript bolsters that view as objectively correct.  Although the citation to Three Strikes in the JOC did cause confusion, the trial court was clear that it intended defendant to receive the minimum parole eligibility.  The clear intention in the sentencing transcript should govern, and the new JOC should not be vacated.
[brief] POINT V THE SENTENCE OF 45 YEARS IS EXCESSIVE FOR DEFENDANT, WHO WAS 50 YEARS OLD AT THE TIME OF SENTENCING AND WAS A FIRST-TIME OFFENDER.  (9T 34-17 to 40-18)  The trial court sentenced [...] to 45 years in prison with an 85% period of parole ineligibility.  (9T 39-5 to 13)  In doing so, the court made inappropriate findings about general and specific deterrence and failed to give proper weight to the fact that this was [...]’s first conviction.  The resultant sentence is excessive for this first-time offender, who was 50 years old at the time of sentence.
[brief] Rendine v. Pantzer, 141 N.J. 292, 334-35 (1995).  “In determining the lodestar, the court should compare the hourly rate of the attorney to the rates charged for similar services of attorneys in the community with ‘comparable skill, experience, and reputation. ’”  In re Prob. of Will & Codicil of Macool, 416 N.J. at 313 (quoting Rendine, 141 N.J. at 337).  The court must determine reasonable hourly billing rates that are “fair, realistic, and accurate. ”  Rendine, 141 N.J. at 337.  The prevailing party's counsel must provide “fairly definite information as to the hours devoted to various general activities ... and the hours spent by various classes of attorneys” as a basis for the court's lodestar calculation.  Hansen v. Rite Aid Corp., 253 N.J. 191, 216 (2023).  If, taking these factors into consideration, the judge “determines that the hours expended ‘exceed those that competent counsel reasonably would have expended to achieve a comparable result, [he or she] may exercise . . . discretion to exclude excessive hours from the lodestar calculation.
[brief] Under NJSA 56:10-1 a franchise [is] defined as a written arrangement for a definite or indefinite period, in which a person grants to another person a license to use a trade name, trademark, service mark, or related characteristics, and in which there is a community of interest in the marketing of goods or services at wholesale, retail, by lease, agreement, or otherwise.  . .  It’s clear that the two entities, the -- [...] and [] [...] did a lot of business together.  . .[A]lthough, when this matter terminated, [[...]] moved on.  And, however the question is, is whether they are considered a franchisor and franchisee.  . .  This Court concludes after reading everything, at least twice, that summary judgment is to be granted because the Court finds there is no written agreement for a definite or indefinite period in which a person grants to another person a license to use a trade name, trademark, service mark, et cetera.
[brief] (Pa673-Pa675).  The two day suspension was issued on February 8, 2016 by [...], the Director Division of Human Resources, who advised a “suspension without pay will affect your seniority. ”  (Pa462).  [...] directed [...] to serve the two-day suspension on March 8 and March 9, 2016 and, again, advised [...] that the “suspension without pay will affect your seniority. ”  (Pa462).  Defendants continue to contend in their Appellate Brief that “[...] received a one-day suspension” (Db2) and the motion judge accepted this as fact (3T22:18-20) when this is disputed.  [...] received a two day penalty as demonstrated by the letters from [...] (2-8-16) and [...] (12-18-15) both imposing a two (2) day suspension without pay.
[brief] (3T37:12-19).  These responsibilities were only something a licensed pharmacist could do.  (3T37:20-23).  The term “guaranteed payment” as used in the documents prepared by the accountant is the same as a salary.  (3T38:6-10).  Defendant based her salary on the hourly rate pharmacist typically are paid—based on her first-hand experience and knowledge of pharmacists’ salaries (3T39:4-22)—and based upon the number of prescriptions she was filling, with that number of daily prescriptions increasing by the hundreds between 2017 and 2019, which in turn had her hourly rate salary increase from $50 an hour in 2017 to $60 an hour in 2019.  (3T37:24-39:3).  Defendant never took a paycheck from [...].
[brief] [...]’s interrogatory answers do not state that the bag of grout went into the air.  [7T 129:9 – 131:18; DLa 020 - 022].  Nor do they state that [...] smirked after seeing the grout land on [...].  [7T 131:23-132:1; DLa 020 - 022].  [...] testified at his deposition he did not see how the bag burst open.  [7T 132:16 – 133:5].  He also admitted at his deposition he did not see the grout go on [...], contradicting his trial testimony that he smirked at [...] after seeing the grout land on him.  [7T 133:11-22].
[brief] (RAISED BELOW, PA307-08; PA310; PA313-14; PA316).  RPC 1.7(a) expressly prohibits two types of concurrent representations: (1) direct adversarial representations, and (2) representations that pose a significant risk of material limitation in the lawyer's responsibilities to a client.  RPC 1.7 reflects “the fundamental understanding that an attorney will give ‘complete and undivided loyalty to the client and should be able to advise the client in such a way as to protect the client’s interests. ’”  State ex rel. S.G., 175 N.J. 132, 139 (2003).  Here, each defense firm’s arrangement with its clients violates both subsections of RPC 1.7(a).
[brief] The appeal and cross-appeal in this matter present three issues: (1)  Did [...], [...] and [...] personally guarantee the obligations of [...] under the month to month lease; (2) if there was a personal guaranty was the guaranty terminated as of May 11, 2016 when the month to month lease was terminated (as ruled by the Trial Court) and (3) if there was a personal guaranty and the guaranty was not terminated as of May 11, 2016, was the guaranty revoked prior to the consent judgment that [...] relies upon for its claim for rent and other amounts due under the month to month lease.  The appeal filed by [...] relates to issue (2) only since the Trial Court ruled in [...]’s favor as to issue (1) and did not make a ruling as to issue (3).  The Cross-Appeals filed by [...] and [...] and by [...], relate to issues (1) and (3).  Since this is a reply brief on the Cross – Appeal, this brief addresses issues (1) and (3) only.
[brief] (\textit{See} 1T and 2T) a.  \textbf{[...]} did not offer any testimony at trial and was not present.\footnote{1T and 2T.}  He was never deposed.  [...] submitted nothing to the Court in the form of an Affidavit or otherwise setting forth his alleged damages.  The record is completely silent as to his alleged damages.  He has failed to establish that he has incurred any damage and, even if the Plaintiffs could prevail under some theory of law in this action – which they cannot – his failure to establish even the slightest hint of damage absolutely bars him from sharing in any award of damages entered in this lawsuit.
[brief] Id.  After this email exchange, [...] called [...] and [...] advised [...] on Exhibit S and the sale.  Id.  [...] and [...] testified at their depositions and on direct examination in Plaintiffs’ case that they did not review or discuss Exhibit S together in 2014 prior to the buyouts, which was false based on D-222.  17T7-14 to 10-12, 167-23 to -25; 18T13-25 to 29-14; 21T150-13 to 152-6; 22T105-1 to 135-22; 25T86-20 to 110-4; 26T23-3 to -11; 33T24-6 to 36-4; Da02792 – Da02797, Da07776 – Da7786.  2.  The Sale Documents
[brief] Plaintiff testified that, as she approached the intersection, the traffic light changed from green to yellow.  3T:169-7 to 19.  Plaintiff’s intention was to continue straight through the intersection with Jackson Road.  3T:169-3 to 6.  She recalled that she was “very close” to the intersection when the light changed from green to yellow and she believed she was close enough that she should proceed through the intersection with the yellow light.  3T:169-20 to 170-1.  She also testified that she was traveling about 55 miles per hour as she approached the intersection and that she did not slow down as she approached the intersection.  3T:187-20 to 188-4.  At the scene of the accident as recorded in [...]’s report, Plaintiff stated, “I was moving, the light was yellow, and the guy just went, whatever car was to the left (vehicle #1). ”  Da139.  Vehicle #1 was identified in the police report as the [...] vehicle.  Da137.  Notably, during cross-examination by counsel for [...], Plaintiff agreed that she had not yet entered the intersection when the accident occurred.  2T:186-2 to 4.  Plaintiff’s testimony about the location and speed of her vehicle moments before the accident must be compared to the testimony of [...] to fully understand the miscarriage of justice that occurred in this case.
[brief] The Legislature made clear that the objective of the WQPA was to: restore and maintain the chemical, physical and biological integrity of the waters of the State, including groundwaters, and the public trust therein; and that areawide waste treatment management planning processes should be developed and implemented in order to achieve this objective and to assure adequate control of sources of water pollutants in the State.  The Legislature further declares that wherever practicable and feasible waste treatment management areas shall be coterminous with county boundaries, and that wherever appropriate county governments shall perform such areawide waste treatment management planning; that the Department of Environmental Protection shall conduct areawide waste treatment management planning for all areas of the State without a designated planning agency, and that said Department of Environmental Protection shall establish a continuing planning process which will encourage, direct, supervise and aid areawide planning and which will also incorporate water quality management plans into a comprehensive and cohesive Statewide program directed toward the achievement of water quality objectives…  N.J.S.A. 58:11A-2(emphasis added).
[brief] 2.  In Wells Fargo Home Mortgage Inc v. [...], Respondent (2005) the appellate division found that the Legislature has provided that a sheriff is entitled to be compensated for the pain and trouble caused by an adjournment of a sale.  N.J.S.A. 22A:4-8.  N.J.S.A. 2A:17-36 2 and N.J.S.A. 2A:61-5,3 have been understood as providing the parties with the vested right to two adjournments from a sheriff without court intervention.  The appellate division emphatically stated that a sheriff does not have the power to refuse an adjournment and that it cannot add nothing further to what was said in Bankers Trust except to simply state what a logical reading of N.J.S.A. 2A:17-36 and the Fair Foreclosure Act clearly demonstrates adjournments of sales help borrowers because every adjournment presents an opportunity for the borrower to save his or her home.
[directive] For example, it is necessary to balance the need to promote police accountability and transparency on the one hand, against the need to respect the privacy interests of persons whose images and home interiors will be captured in a BWC recording on the other.  So too, it is necessary to balance the benefits achieved by electronically recording evidence that might help to solve a crime and successfully prosecute an offender against the costs incurred if a BWC were to chill a victim or witness from providing a BWC-equipped officer with information necessary to solve a crime and convict the offender.  1.2  New Jersey now requires police departments and agencies to employ BWCs in their daily law enforcement functions.  While N.J.S.A. 40A:14-118.3 through -118.5 provides the basic framework for BWC use, this Policy seeks to provide additional guidance for the requirements that all departments must now satisfy.  Law enforcement agencies are nonetheless expressly authorized to impose additional requirements beyond—but not inconsistent with—those established in this Policy.  In this way, police agencies are afforded an opportunity to tailor their BWC policies and procedures to address local concerns and needs.  1.3  Although police executives are afforded some flexibility in developing departmental policies and practices that address local needs and community concerns, this Policy makes clear that all policies must limit the discretion of individual officers in the field.
[brief] I.  THE DEFENDANT’S RIGHTS TO CONFRONTATION WAS VIOLATED WHEN THE LEAD DETECTIVE  ANTHONY LUYBER TESTIFIED THAT A ANONYMOUS 9-1-1 CALLER “ANGEL” PROVIDED INFORMATION TO AUTHORITIES THAT DEFENDANT COMMITTED THE CRIMES.  HOWEVER ANGEL WAS NOT SUBJECT TO CROSS-EXAMINATION.  FOR THIS CONSTITUTIONAL VIOLATION; A NEW TRIAL IS MANDATED.  U.S. CONST. AMENDS V, VI, XIV; N.J. CONST. ART.  1 PAR. 10 (not raised below)  [...], lead detective testified that on the night of the homicide an "anonymous" caller provided a tip that identified defendant as the perpetrator in the crimes.  Initially defendant was led to believe that the anonymous caller was [...] because of the way that Luyber testified previously -- at the grand jury.  (13T:13-16 to 19).  [...] is the defendant’s girl friends’ ([...]) mother who testified favorably for the state -- corroborating the anonymous caller, “[...]”.  For the first time during trial, defendant learned that the anonymous caller was not [...].  In fact, it was Sahsa's friend "[...]" who placed the anonymous 9-1-1 call, implicating defendant in the crimes.  Moreover, it was [...]’s anonymous call that instantly made defendant a suspect.  In the instant matter defendant was denied the opportunity to cross-examine "[...]" to test the veracity of the prejudicial information she provided.  Defendant was also denied the opportunity to cross-examine [...], detective that reported the anonymous call.  For this fatal flaw, a new trial is warranted.
[brief] [...] drove to the end of the fence line and cut off the shorter of the two men, later identified as [...].  (9T 167-11 to 18)  At the time of his arrest, [...] was 5'9" and weighed 132 pounds.  (7T 175-15 to 22)  The taller man identified as [...], jumped the fence and was arrested a week later in Pennsylvania.  (9T 181-16 to 21)  [...] was 6'1".  (7T 175-11 to 14)  F. [...] testified that during the search following the arrest, the police found an air gun on [...] and a chrome handgun in his pocket, some garbage bags inside his sleeve, a cell-phone, and some latex gloves.  (9T 169-16 to 170-5)  There was a Phillips-head screwdriver protruding out of the bottom of the gun.  (9T 170-22 to 171-3)  [...], the ballistic expert, testified that both weapons were pellet guns.  (4T 118-13 to 16; 123-3 to 9, 129-6 to 7)  The first pellet gun was capable of discharging a projectile; however, when the gun was recovered, there was no magazine inside, which is necessary for its operability.  (4T 128-12 to 18)  The first gun would have been operable only if the user was strong enough to turn the cylinder and had carbon dioxide as well as pellets.  (4T 130-23 to 131-5)  [...] had to use pliers to get the gun to function.  The second pellet gun, in the condition it was recovered, would not have been operable.  [...] had to charge the carbon dioxide and insert pellets.  (4T 132-2 to 12)  E. [...]’S POST-ARREST STATEMENTS
[brief] New Jersey law requires that an arbitration agreement make clear that by agreeing to arbitration, the parties are “giv[ing] up the time-honored right to sue. ”  *Atalese v. U.S. Legal Servs. Grp., L.P.*, 219 N.J. 430, 445 (2014).  The agreement must say “in some general and sufficiently broad way” that the plaintiff “is giving up her right to bring her claims in court or have a jury resolve the dispute. ”  *Id.* at 447 (emphasis added).  That is exactly what the [...] Agreement says: Plaintiffs must resolve personal injury claims (and most other claims) through “binding individual arbitration between you and [...], and not in a court of law. ” (Da81–82 (emphasis added). )  Plaintiffs strain to argue why “not in a court of law” means something other than what it plainly says: that arbitrating means giving up the right to sue in court.  (Pb20–28.)  This Court recently held in *Drosos v. GMM Global Money Managers Ltd.* that “rather than the parties going into litigation in the Judicial Court system” was clear enough.