ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] : Sat Below: : Hon. [...], J.S.C. : Hon. [...], P.J.C.  DEFENDANT IS CONFINED  Your Honors:  This letter is submitted in lieu of a formal brief pursuant to R. 2:6-2(b)  TABLE OF CONTENTS  PROCEDURAL HISTORY AND STATEMENT OF FACTS  ...........................................1  LEGAL ARGUMENT ........................................................................................................1  POINT I THE STOP OF DEFENDANT AND THE SEARCH OF HIS CAR WERE ILLEGAL ..................................................1  CONCLUSION ..............................................................................................................................5
[brief] This would lead to the perverse consequence that a robber who acted more aggressively and subjected the victim to more danger by brandishing the gun through the entirety of the robbery would be more likely to receive concurrent sentences.  (7T 27-17 to 28-11)  A review of the published cases assessing factor 3A reveals that crimes and their objectives have been found to be primarily independent only where (1) they did not happen simultaneously but rather involved separate and distinct acts; (2) there were multiple victims, or (3) the motives were distinct and were formulated at separate times.  See State v. Cassady, 198 N.J. 165, 181 (2009) (finding the bank teller robbery and the car salesman robbery were “two separate incidents separated by approximately an hour and each had a different motive, (1) to steal money from a bank, and (2) to steal a car from a car dealership. ”); State v. Perry, 124 N.J. 128, 177 (1991) (finding the crimes of murder and hindering apprehension were predominantly independent because defendant made decision and took action to hide the body after he had already killed the victim, and as such “the crimes of murder and hindering apprehension involve[d] similar yet distinct acts”); State v. Ghertler, 114 N.J. 383, 391-392 (1989) (finding that the crimes were “predominantly independent of each other” because they “were committed at different times and separate places”); State v. Walker, 322 N.J. Super. 535, 557 (App. Div. 1999) (finding “that the Pollenitz murder and McClendon robbery were ‘predominantly independent’ of each other” where defendant committed the McClendon robbery at 12:35 a.m. and then killed Pollenitz during a separate attempted robbery between 1:00 and 1:30 a.m.); State v. Johnson, 309 N.J. Super. 237, 271 (App. Div. 1998) (finding that the crimes and their objectives were predominantly independent of each other where “defendant’s original objective was robbery to obtain money for purchase of drugs . . . [which] could have been realized without the carjacking and kidnapping of [...] and [...]” and because “[t]he subsequent, violent sexual assault of [...] Shollar was not a natural progression of the robbery, and her vicious murder was by defendant’s admission motivated by his desire to avoid identification and apprehension”); State v. List, 270 N.J. Super. 169, 176 (App. Div. 1993) (finding that the murders were predominantly independent because “[e]ach was committed at a different time on successive victims in separate circumstances”).
[brief] JUDGMENT WAS PROPERLY GRANTED AS DEFENDANTS DO NOT OWE A DUTY TO PLAINTIFF FOR MELT AND REFREEZE EVENTS ON A PUBLIC SIDEWALK  A.  Negligence  Standard  Negligence is the failure to adhere to a standard of conduct that a reasonably prudent person would exercise under similar circumstances.  The essential elements of a negligence claim are duty of care owed by a defendant to the plaintiffs, breach of that duty by the defendant, and injury proximately caused to the plaintiffs by defendant’s breach of due care, resulting in damage.
[brief] Appellant [...] applied for a Special Retirement from the State Police Retirement System (SPRS), which the Board approved on January 26, 2010, with an effective date of January 1, 2010.  (Pa84).  On July 8, 2019, the Legislature enacted L. 2019, c. 157 (the “Ricci Act”).  The Ricci Act in relevant part permitted active or retired members of the SPRS to file for a recalculation of Ordinary Disability, Service, or Special Retirement Benefits to Accidental Disability Retirement Benefits provided they participated in the rescue, recovery, or cleanup operations at the World Trade Center Site.  (Pa10).  The Ricci Act also created a presumption that the disability of the member or retiree “occurred during and as a result of the performance of the member’s regular or assigned duties and not the result of the member’s willful negligence unless the contrary can be proved by competent evidence. ”  (Pa10).  ---  1  Because the procedural history and facts are closely related, they are combined for efficiency and the court’s convenience.
[brief] 4T – September 21, 2022  5T – September 22, 2022  6T – September 27, 2022  7T – September 28, 2022  8T – September 29, 2022  9T – January 12, 2023 | Cases | PAGE NOS. | |----------------------------------------------------------------------|-----------| | **Bullcoming v. New Mexico**, 564 U.S. 647 (2011) | 10, 15 | | **Commonwealth v. Armstrong**, 2023 WL 4277878 (Mass. June 30, 2023) | 13 | | **Commonwealth v. Gambora**, 933 N.E.2d 50 (Mass. 2010) | 14 | | **Commonwealth v. Mattei**, 920 N.E.2d 845 (Mass. 2010) | 19 | | **Daubert v. Merrell Dow Pharm., Inc.
[directive] Specifically, extreme risk protective order prohibits a person (hereafter respondent) from an owning, purchasing, possessing, or receiving firearms or ammunition, or from securing or holding a firearms purchaser identification card, a permit to purchase a handgun pursuant to N.J.S.A. 2C:58-3, or a permit to carry a handgun pursuant to N.J.S.A. 2C:58-4.  Because the relief provided under extreme risk protective order limited to prohibiting an is the respondent from having firearms and or ammunition, such order does not offer the range an of relief provided by restraining orders issued pursuant to the "Prevention of Domestic Violence  1  A "family or household member'' defined as a spouse, domestic partner, partner a civil union couple, is in or former spouse, former domestic partner, or former partner a civil union couple, or any other person in who a present household member or was at any time a household member; a person with whom the is respondent has a child common, or with whom the respondent anticipates having a child common if in in one of the parties pregnant; or a current or former dating partner.  N.J.S.A. 2C:58-21. is for Directive #19-19 - "Guidelines Extreme Risk Protective Orders"
[brief] Exhibit 6, Deposition of [...], dated March 30, 2017, filed May 31, 2018  Exhibit 7, Deposition of [...], dated March 24, 2017, filed May 31, 2018 (Volume 8 of 15 – Pa1360 to Pa1560)  Exhibit 8, Photographs, dated July 11, 2014, filed May 31, 2018  Exhibit 9, Deposition of [...], dated March 9, 2017, filed May 31, 2018  Exhibit 10, Deposition of [...], dated March 9, 2017, filed May 31, 2018  Exhibit 11, Deposition of [...], dated March 1, 2017, filed May 31, 2018  Exhibit 12, Deposition of [...], dated March 7, 2017, filed May 31, 2018  Exhibit 13, Deposition of [...], dated October 3, 2017, filed May 31, 2018 Exhibit 14, Deposition of [...], dated March 24, 2017, filed May 31, 2018 (Volume 9 of 15 – Pa1561 to Pa1760)
[brief] Those “three opportunities” spanned 12 days in total from October 3, 2018 to October 15, 2018.  (Da2510)  They are the 12 days that the Arbitrator gave [...] in response to his request for 45 days.  (Da 2156)  They were in reality one opportunity and for less than two weeks in total.  However, those 12 days were never going to be enough for a motion for final relief that voluminous and far-reaching.  (Da2156)  The “opportunity” to have 12 more days was illusory, and it was intentionally so for an arbitrator whose own agenda was to end his involvement in the case quickly.  Indeed, that the Arbitrator’s final award directed that the Court was to handle the valuation after expulsion and not him shows he had no further interest in continuing after 7.5 years.  He did not want to have to entertain arguments of counsel for [...] who would show that a full hearing was necessary and no final decision could be made on the papers.  (Da2210)  If the Arbitrator had allowed [...]’s counsel to appear and oppose he could not have granted summary judgment at all because there were substantial disputes of fact that would have required testimony.  (4T55-59)  [...] was entitled to a full hearing in this arbitration and failing to give him one was itself a basis to vacate.
[brief] [Pa 178-79, emphasis added].  In addition to addressing consistency with the Master Plan, the Amended Redevelopment Plan also addresses consistency with the master plan of [...] and the County, along with the applicable State plans:  7.  Significant Relationship of Redevelopment Plan to the Master Plans of Contiguous Municipalities, County, State Development and Redevelopment Plan.  a.  The redevelopment area is located in the south central portion of the Borough on the municipal boundary with [...] Township.  The adjoining lands on the south side of Lawrence Brook in [...] are zoned RP Rural Preservation.  The proposed redevelopment will provide for a mixed-use development and open space which is more compatible with the adjacent [...] zoning than the existing underutilized and under maintained manufacturing and light industrial uses.  b.  The proposed redevelopment is consistent with the overall land uses provided in the County Master Plan.  c.  The redevelopment area is located in the Metropolitan Planning Area as indicated on the New Jersey State Development and Redevelopment Plan Policy Map (adopted on March 1, 2001).  The State Development and Redevelopment Plan defines the purpose of the Metropolitan Planning Area (PA1) as follows:  “The planning area is to provide for much of the State’s future redevelopment; revitalize cities and towns; promote growth in compact forms; stabilize older suburbs; redesign areas of sprawl; and protect the character of existing stable communities. ”  The [...] is consistent with these purposes as enumerated in the State Development and Redevelopment Plan.  [Pa 205-06, emphasis added]
[directive] De-Activation on Instruction from Prosecutor.  Notwithstanding Section 5.3, an officer may de-activate a BWC when specifically authorized to do so by an assistant prosecutor or assistant or deputy attorney general for good and sufficient cause as determined by the assistant prosecutor or assistant or deputy attorney general.  When an officer de-activates a BWC pursuant to this Section, the officer shall narrate the circumstances of the de- activation indicating the assistant prosecutor or assistant or deputy attorney general who authorized the de-activation (e.g., “I am now turning off my BWC as per the instruction of assistant prosecutor (insert name).”).  6.7
[brief] The Law Division erred in finding that the State established beyond a reasonable doubt that Appellant operated the vehicle in question on the morning of November 5, 2019.  (Aa035-040).  A conviction for driving while intoxicated under N.J.S.A. 39:4-50 requires proof beyond a reasonable doubt that the defendant actually operated a vehicle while intoxicated or that the defendant had the intent to operate a vehicle while intoxicated.  *State v. Morris*, 262 N.J. Super. 413, 417 (App. Div. 1993).  Operation may be proved by either direct or circumstantial evidence, such as by observation of the defendant inside or outside of a vehicle “under circumstances which indicate that the defendant had been driving while intoxicated. ” (Aa036 (citing *State v. Ebert*, 377 N.J. Super. 1, 10 (App. Div. 2005)).  Here, the State’s lone evidence of operation is the testimony of [...], who stated that when he engaged with Appellant, Appellant stated that he was “coming from home and he was on his way to see a friend in Hackettstown. ” (2T11:12-14).  [...]’s testimony gives no indication as to when Appellant had left his home, or when he planned to use the vehicle to go see his friend in Hackettstown.  In fact, [...] acknowledged that he asked Appellant to turn on the vehicle, but that the vehicle would not start.  (2T11:2-11).  In other words, based on [...]’s testimony, Appellant’s vehicle was completely inoperable at the time [...] engaged with Appellant.  Even assuming *arguendo* that Appellant was intoxicated at the time [...] engaged with him on the morning of November 5, 2019, there is simply nothing in the record which could allow the Law Division to find beyond a reasonable doubt that Appellant had operated a vehicle while intoxicated or intended to operate a vehicle while intoxicated.  In holding that the State proved operation beyond a reasonable doubt, [...] distinguished this matter from the Supreme Court’s decision in *State v. Daley*, 64 N.J. 122, 124-25 (1973), where the Court held that operation could only be proved, even where the defendant was sitting in the driver’s seat of a running vehicle while intoxicated, where a separate intent to drive is also established.
[brief] Defendant contends that the trial court erred when it denied his motion to suppress evidence obtained from the execution of a search warrant of his apartment because, he argues, that the knock-and-announce requirement of the warrant was not complied with.  Following a hearing on defendant’s motion to suppress, the trial court – based on credible evidence – held that the police did in fact comply with the knock-and-announce requirement of the warrant.  (Da15-26).  In his brief, defendant contends that because the officers’ body worn cameras did not capture the audio of the police announcing themselves before entering his apartment, they did not comply with the terms of the search warrant and the evidence obtained should have been suppressed pursuant to the exclusionary rule.  In support of his contention, defendant submits two ultimately meritless arguments.  First, he argues that the expansion and evolution of the policies regarding the use of body worn cameras “warrants a change in the law. ” (Db11).  Second, he argues that by not “requiring suppression, or at a minimum requiring a negative inference to be found,” the trial court erred by denying his motion because this means that “there is absolutely nothing to deter law enforcement to properly follow police procedure and activate their body worn cameras. ”  Ibid.  For the reasons that follow, this court should reject his arguments.  An appellate court’s review of a trial court's decision on a motion to suppress is limited.
[directive] The law enforcement executive of each agency shall determine which officers, including Class II and Class III Special Law Enforcement Officers, shall be authorized to carry and use a conducted energy or a less-lethal device or ammunition.  Class I Special Law Enforcement Officers shall not be authorized.  4.2  An officer shall not carry or use a CED or less-lethal device during an actual operation unless the officer has been expressly authorized to do so by the law enforcement executive, after the officer has successfully completed a training course approved by the Police Training Commission in the proper use and deployment of authorized conducted energy or less-lethal devices, as appropriate.  The law enforcement executive shall be responsible to ensure that officers authorized to carry CEDs and less-lethal devices maintain the required certifications and qualifications.
[brief] \(^2\)  When considering the Respondents’ exact argument, the DOL Commissioner interpreted the language of the PWCRA and held professionals (like archaeologists) are subcontractors as contemplated by the statute and are, therefore, required to be registered when working on a public project.  *N.J. Dept. of Labor and Workforce Dev. v. TAD Assoc., LLC, d/b/a DeMuro Assoc., James DeMuro and Teresa DeMuro*, 2010 N.J. Agen LEXIS 826 (N.J. DOL May 6, 2010).  In making this determination, the DOL Commissioner held that the PWCRA “makes no distinction among the varying types \(^2\) *R.C.G. Const. Co., Inc. v. Mayor and Council of Bor. Of Keyport*, 346 N.J. Super. 58, 66 (App. Div. 2001)(providing that DOL decisions should be given deference from courts). of subcontractors and whether they are licensed professionals. ”  *Id.* at * 10.  Rather, the inquiry is limited to whether the entity is a subcontractor to a contractor engaged in public works and whether that entity is performing its work on site.  Like the surveyor in *TAD Assoc.*, the archaeologist subcontractor here is required to perform its work on site and it is identified as a subcontractor to the contractor in privity with [...].  These two undisputed facts, in and of themselves, require the archaeologist subcontractor be registered in accordance with PWCRA.  Notably, although the type of work a subcontractor performs is irrelevant to whether the PWCRA applies, the type of work performed by the archaeologist (*e.g.*, inspect the site, survey the site for artifacts and potential locations of artifacts, identify artifacts, measure artifacts and surrounding area, and report conclusions and recommendations) is virtually identical to the type of work performed by the surveyor (*e.g.*, inspect, survey, identify, measure and report) in *TAD Associates*.  Moreover, Respondents’ argument that archeologists are not “licensed” professionals like land surveyors is a distinction without a difference.  The DOL’s determination in *TAD Associates* was not dependent upon (nor did it discuss) the fact that the land surveyor was licensed.  Rather, the DOL broadly rejected the attempt to distinguish professionals from non-professional subcontractors with respect to the obligation to register under the PWCRA.  The obligation to register under the PWCRA applies to all subcontractors who perform work on site, regardless of their activity and irrespective of their trade.
[brief] A.  The Property  The subject property is located at [...] and known as Block 113, Lot 5 on [...]’s Official Tax Map (“Property” or “Lot 5”).  It is privately owned, approximately 25,515 sq. ft. (0.59 acres), vacant, and within [...]’s B-3 Business and Apartment Zone District.  The prior use of the lot as a car dealership has left soil contamination on-site and on certain adjacent residential properties on [...], a parallel street to Kinderkamack Road.  Pa109 at ¶1.  B.
[brief] See 2018 Op. at *28-29.  As will be discussed in the argument section of this Brief, the attorney’s fees and costs devoted by [...]’s counsel to the facts and events that occurred prior to October 1, 2004 were not only “reasonably devoted” and “reasonably required to establish the RICO claims,” they were indispensable to [...]’s establishment of NJRICO liability and to his recovery of NJRICO damages.
[brief] ### Cases - **Dunn v. United States**, 284 U.S. 390, (1932)  -----------------------------------------------  21 - **United States v. Gipson**, 553 F.2d 453, 457 (5th Cir. 1977)  ----------------------------- 26 - **United States v. Powell**, 469 U.S. 57 (1984)  -------------------------------------------- 21, 22 - **Neno v. Clinton**, 167 N.J. 573, 579 (2001)  --------------------------------------------- 11, 15 - **State v. Cagno**, 211 N.J. 488 (2012)  ---------------------------------------------------  26 - **State v. Carey**, 168 N.J. 413, 426-27 (2001)  ------------------------------------------- 34 - **State v. Case**  220 N.J. 49 (2014)  ------------------------------------------------------  38, 39, 40 - **State v. Casilla**, 362 N.J. Super. 554, 570-72 (2003)  ------------------------------------ 23, 24, 25 - **State v. Chew**, 150 N.J. 30 (1997)  ----------------------------------------------------- 12, 13, 15, 17 - **State v. Dunbar**, 108 N.J. 80, 83 (1987)  --------------------------------------------------  36 - **State v. Elliot**, 2010 N.J. Super. Unpub. LEXIS 718, *8 App. Div. 2010)  ------------------- 28, 29, 31, 32 - **State v. Federico**, 103 N.J. 169, 176 (1986)  --------------------------------------------- 24 - **State v. Frisby**, 174 N.J. 583, 596 (2002)  ---------------------------------------------- 26, 27 - **State v. Frost** 242 N.J. Super. 601 (1990)  ----------------------------------------------- 9 - **State v. Fuentes**, 217 N.J. 57 (2014)  --------------------------------------------------- 37, 39, 40 - **State v. Gandhi**, 201 N.J. 161, 193 (2010) (quoting Parker, 124 N.J. at 639)  ------------ 27 - **State v. Ghertler**, 114 N.J. 383, 393 (1989)  --------------------------------------------- 34, 36 - **State v. Grey**, 147 N.J. 4, 11-12 (1996)  -------------------------------------------------- 21 - **State v. Moorer**, 448 N.J. Super. 94, 106 App. Div. 2016)  ------------------------------- 8, 10, 12 - **State v. Muhammad**, 359 N.J. Super. 361, 386-388 (App. Div. 2003)  ---------------------- 10, 11, 12, 16 - **State v. Natale**, 184 N.J. 458,488 (2005)  ----------------------------------------------- 38, 40 - **State v. O’Donnell**  117 N.J. 210, 215 (1989)  --------------------------------------------- 34, 35 - **State v. Paden-Battle**, 464 N.J. Super. 125, 137-38 (App. Div. 2020)  --------------------- 24, 25 - **State v. Parker**, 124 N.J. 628, 637, 592 A.2d 228 (1991)  ---------------------------------- 26, 27, 30 - **State v. Petties**, 139 N.J. 310 (1995)  ---------------------------------------------------  21 - **State v. Roth**, 95 N.J. 334, 365 (1984)  --------------------------------------------------  34, 35, 36 - **State v. Spano**, 128 N.J. Super. 90, 91 (App. Div. 1973)  ---------------------------------- 28, 30, 31 - **State v. Torres**, 313 N.J. Super. 129, 156 (App. Div. 1998)  ----------------------------- 10, 15 - **State v. Whitaker**, 200 N.J. 444 (2009)  ------------------------------------------------ passim  ### Statutes - **N.J.S.A. 2C:11-3a(3)**
[brief] Du-Wel Prods., Inc. v. U.S. Fire Ins. Co., 236 N.J. Super. 349, 364 (App. Div. 1989), certif. denied, 121 N.J. 617 (1990).  On appeal, a trial court’s determination of a motion for leave to amend will not be disturbed unless it constitutes a “clear abuse of discretion. ”  Allen v. Seymore, 2010 N.J. Super. Unpub. LEXIS 1376, *8 (App. Div. June 24, 2010).  In such matters involving a trial court’s discretion, appellate courts “do not second-guess the exercise of sound discretion by the court because [they] recognize ‘[j]udicial discretion connotes conscientious judgment, not arbitrary action; it takes into account the law and the particular circumstances of the case before the court. ’”  U.S. Bank Nat’l Ass’n v. Williams, 415 N.J. Super. 358, 365 (App. Div. 2010), quoting, Higgins v. Polk, 14 N.J. 490, 493 (1954).  “Such determinations should not be overturned on appeal unless it can be shown that 3 FEDa 161. the “court palpably abused its discretion, that is, that its finding was so wide off the mark that a manifest denial of justice resulted. ”  U.S. Bank Nat’l Ass’n v. Williams, supra, 415 N.J. Super. at 365.
[directive] With the approval of the Attorney General, the Executive Organization of Office.  Director may organize the work of the Division into any offices or other organizational units as may be necessary for the efficient and effective operation of the Division.  The Executive Director may delegate to employees in the Division and its constituent organizational units such powers as the Executive Director deems appropriate, to be exercised subject to the supervision and control of the Executive Director.  The Attorney General shall assign to the Division such employees of the DLPS as may be necessary to assist the Executive Director in the performance of his, her, or their duties.  The Attorney General may delegate duties to the Executive Director assigned to the Attorney General to assist the Division in fulfilling its purpose.  D.