ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] THE SERVICE BY MAIL RULE REQUIRES THE AFFIRMATIVE ACT OF REFUSAL  Plaintiff argues that Defendant misinterprets R. 4:4-3’s use of the word “refuses” when addressing constructive service by mail.  However, Defendant’s interpretation relies on the plain text of the Rule and adopting Plaintiff’s contrary interpretation would legitimize gutter service.  As a preliminary note, Defendant does correctly cite to Rule 4:4-3 in support of this argument.  The complete quote is drawn begins at the third sentence in paragraph (a), and reads as follows:  The party making service may, at the party's option, make service simultaneously by registered or certified mail and ordinary mail, and if the addressee refuses to claim or accept delivery of registered mail and if the ordinary mailing is not returned, the simultaneous mailing shall constitute effective service.  Mail may be addressed to a post office box in lieu of a street address only as provided by R. 1:5-2.  Return of service shall be made as provided by R. 4:4-7.  [R. 4:4-3(a)]  However, Plaintiff is likewise correct to note the corresponding use of the word “refused” in R. 1:5-4(a), which states:  (a)  Service by Ordinary Mail if Registered or Certified Mail Is Required and Is Refused.  Where under any rule, provision is made for service by certified or registered mail, service may also be made by ordinary mail simultaneously or thereafter, unless simultaneous service is required under these rules.  [R. 1:5-4(a) (emphasis retained)]  But Plaintiff is incorrect when it argues that R. 1:5-4(b) renders such service effective upon dispatch.  Although that paragraph of the Rule does describe conditions where service is deemed effective upon the mailing of ordinary mail, it applies only to “service by mail of any paper referred to in R. 1:5-1. ”  R. 1:5-4(b).  Notably, R. 1:5-1 specifically addresses service of papers required after initial service of process.  To be clear, Defendant argues that Plaintiff failed to effectuate original process service in this case, or alternatively that the initial process service was deficient.
[brief] This was not a coincidence and what happened is obvious: the Department issued the Bulletin in preparation for issuing Order No. A22-13 which was waiting in the wings.  The Bulletin changed the rules and, and for the first time, established that reciprocal exchanges are subject to the Holding Company Act.  Order No. A22-13 is attached hereto as Exhibit C.\(^3\) Two days after the Bulletin was issued and implementing the rule set forth in it, the Department took the position in Order No. 22-13 that the reciprocal exchange “shall ensure compliance with all relevant laws and requirements” including the Holding Company Act.
[brief] Appellant asserts that the [...] and/or [...] did not “turn square corners” with respect to this matter, in violation of N.J.A.C. 4A:10-1.1(c),(d), and (f).  That statute provides that an appointing authority cannot “obstruct a person’s lawful opportunity to participate in the selection and appointment process;” that “no person shall make any false statement or perform any fraudulent act in connection with any examination, certification, appointment . . . ”; and that appointing authorities must “timely supply all information, documents, and other materials requested by the [...]” in connection with “administering the merit system.
[brief] surveillance of the location revealed that “132” Tuers Avenue was part of a two-family building, with “130” being the other unit.  (1T42-24 to 47-25; Cma1 to 2; Cma11).  [...] observed, from the outside, that the building appeared to be “divided vertically,” with a front door on the far left bearing the number, “132,” and a front door on the far right bearing the number, “130. ” (1T42-24 to 47-25; Cma1 to 2; Ra30 to 31).  Accordingly, [...] drafted a search-warrant application for [...], which included the following description of the location to be searched:  The residence to be searched the left side of a two family, three-story home, divided vertically.  The house consists light gray siding.  There is a brick front porch leading to both doors of the residence.  When facing from the street, address [...] would be the left door and 130 is the right door.  Also on the porch are three windows with black metal bars.  Both doors are covered by white metal awnings.  A white metal fence surrounds the porch and another separates the sidewalk from the property.  The back of the residence has a wood porch on the ground level with a door and large window covered by a metal guard.  [(Cma1 to 2) (emphasis added). ]  [...] also included photographs of the front and back of the residence in the search-warrant application.  (Cma2; 1T42-24 to 45-16).  Based on the above investigation, and his years of law-enforcement training and experience that included ICAC BitTorrent training as well as the methods used by CSAEM possessors and distributors, [...] indicated that he had probable cause to believe that an individual, using a device or devices connected to the traced IP address at [...], unlawfully had and distributed CSAEM, and that evidence of these crimes would still be present or found on a device located therein.  (Cma4 to 12).
[brief] The sentencing record also contains clear support for Mitigating Factor 11, which requires the sentencing judge to consider whether the imprisonment of the defendant would entail excessive hardship to the defendant or the defendant’s dependents.  [...] spoke on [...]’s behalf and implored the sentencing judge that [...] needed to be home for his teenage daughter, who suffers from multiple disabilities, and to care for his sick mother.  (8T5:24-7:7).  Even if the trial court declined to afford this factor any weight, it constituted an abuse of discretion not to consider this factor.
[brief] 41  THE CAUSES OF ACTION SET FORTH IN PLAINTIFF’S COMPLAINT ARE NOT BARRED BY THE STATUTE OF LIMITATIONS (Pa44 – Pa47; 3T78-3T88)  i.  The Trial Court’s Oral Opinion to Regarding Defendant’s Statute of Limitations Argument (3T78-3T88)  .................................................................  42  ii.  Defendant’s Cross-Appeal to Dismiss Plaintiff’s Claims on Statute of Limitations  Grounds Must be Denied (Pa44-Pa47; 3T87)  .......................  43  CONCLUSION ..........................................................................................................................
[brief] In any event, Petitioners have submitted to this Court [...]’s Certification for *in camera* review, which goes into specific detail the communications she had with [...].  Respondents’ Appeal should be denied for the following reasons:  First, Respondents have failed to show their right to choice of counsel outweighs the need for disqualification.  [...] performed little, if any, substantive work on the file (no opposition was due up to that point nor is any still due).  Second, despite [...]’s specific recall of her conversation with [...], [...] has failed to show that he did not have confidential and prejudicial communications with [...].  [...]’s submission to this Court is now suddenly imbued with almost perfect recall in his unsworn statements to this Court regarding his conversations with [...], while his statements made under oath below were equivocal and uncertain.  In contrast, [...]’s statements, made under oath both here and in the Trial Court, has made statements that are unequivocal and clear.  Third, [...] has failed to demonstrate why [...]’s Certification should not have been submitted to the Trial Court, *in camera*.  Case law and New Jersey Court Rules provide the authority for this procedure used by Petitioners.  Therefore, Respondents’ appeal in this matter should be denied.  The Trial Court’s disqualification of Respondents’ Counsel was proper.
[brief] . . .”).  Here, the ALJ and Board reasonably determined that under the twenty-factor test, [...] was an independent contractor for [...].  (Pa1; Pa19-20).  In essence, the twenty-factor test simply quantified what is apparent in the record – [...] did not exert control beyond the level of control required for all municipal prosecutors (employees and contractors), and [...] had an attorney-client relationship rather than an employer-employee relationship.
[brief] On May 4, 2022, the defense moved to bar [...]’s report based on its late production and its failure to meet the evidentiary standards set forth in Rule 703 of the New Jersey Rules of Evidence.  **57a.**  After the hearing on May 6, 2022, the Court denied the defense motion to bar the expert’s testimony and report.  **58a. **  The opening statements of counsel occurred on May 10, 2022.  On May 20, 2022, before the conclusion of witness testimony, the Court held a charge --- \(^2\)  This motion is not a subject of the within appeal and is designated as “Restricted” on the Court’s docket.  It is, thus, omitted from Appellant’s Appendix. conference.  The Court questioned counsel as to charging the lesser included offenses of aggravated manslaughter and reckless manslaughter.  Both counsel objected.  T7, 89:11-20 and T7, 90:2-6.  Over both counsel’s objections, the Court decided to charge the lesser included offenses of aggravated and reckless manslaughter.  95a.  On May 24, 2022, the Court heard and denied the defense’s motion to dismiss the indictment as the end of the State’s case.  On May 26, 2022, the jury returned a verdict of not guilty of murder, not guilty of aggravated manslaughter, guilty of reckless manslaughter, not guilty of possession of a weapon for an unlawful purpose, and not guilty of possession of a weapon without a permit.
[brief] Trial Court Order Granting Plaintiff’s Motion for Summary Judgment ........................................ Da166 Trial Court’s Order Denying Defendant’s Cross-Motion for Summary Judgment ................................ Da168 Trial Court’s Opinion on Summary Judgment ........................................ Da170 TABLE OF AUTHORITIES/CITATIONS CASES CITED Caruso v. Ravenswood Developer’s Inc. 337 N.J. Super. 499, 506 (App Div. 2001) ........................................... 3 Manahawkin Convalescent v. O’Neill, 217 N.J. 99 (2014) ......................... 3 Solondz v. Kornmehl, 317 N.J. Super. 16 (App. Div. 1993) ....................... 3 Township of White v. Castle Ridge Dev. Corp., 419 N.J. Super. 68 (App. Div. 2011)
[brief] RAISED IN SECTIONS  “A”, “C”, “F”, “G”, & “H” IN ORDER TO:  1)  CORRECT OCT. 6, ’22 ORDER, PAR. 1, & MARCH 7, ‘23 ORDER, PAR. 3, & GRANT [...]’ EXCEPTIONS TO INTERMEDIATE ACCOUNTING BASED ON HIS AUG. 8, 2022 FILING, & REQUIRE
[brief] Contrary to Respondent’s statement that a complaint brought by [...] resulted in disciplinary action against Respondent, (RB-5), the evidence shows that while such complaint brought the matter to the Borough’s attention, it was the resultant investigatory findings that underly the disciplinary charges ultimately preferred.  (Da-76-78)  Contrary to Respondent’s statement that witness [...] met privately with council members to press her demand for Respondent’s termination, there is no evidence of such as noted by Respondent’s failure to cite to the record any evidence in support of this proposition.  (RB-5)  Respondent’s statements regarding Rivera’s alleged bias and credibility are not facts, but arguments.  (RB-6)  Respondent’s claims of evidence that is relevant or irrelevant as to those who viewed Respondent’s posts, (RB-5), are also argument, not facts.  TABLE OF JUDGMENTS, ORDERS AND RULINGS BEING APPEALED
[directive] Determine any current charge is a:  - Aggravated manslaughter or manslaughter (N.J.S.A. 2C:11-4(a)(l) or (2), 2C:11- or 4(b)(l) (2)) - Aggravated assault (N.J.S.A. 2C:12-l(b)(l), through (13)) or - Kidnapping (N.J.S.A. 2C:13-l(a), (b), (b)(l), through (b)(4), (c)(2)) or - Aggravated sexual assault (N.J.S.A. 2C:14-2(a)(2)(a), (b) (c), 2C:14-2(a)(3) through (7)) - Criminal sexual contact (N.J.S.A. 2C:14-3(a)) - First degree robbery (N.J.S.A. 2C:15-l(a)(l),(2) or (3)) 1 Pretrial Making (DMF) Framework Recommendation Release Decision 2022]
[brief] Please accept this letter-brief and appendix in support of the Board’s appeal of the trial court’s Order, dated August 18, 2023, pursuant to R. 2:6-2(b).  TABLE OF CONTENTS  Procedural History and Statement of Facts.........................................................  2  Legal Argument........................................................................................................  7 Standard Of Review (Da095)..............................................................................  7  Point I: The Trial Court Incorrectly Applied The Law Regarding “A Well-Settled Right” For Plaintiffs To Proceed On Their Claims (Da103)..................  8  Point II: The Trial Court Improperly Relied On Online Surveys To Determine Whether Plaintiffs Had A Reasonable Probability Of Success On The Merits (Da107)  ...........................................................................................................  13  Point III: The Trial Court’s Order Compels The Board To Violate (Da114)15  Conclusion ..............................................................................................................................................
[brief] Appellate review of an Order granting summary judgment is *de novo*.  *Templo Fuente De Vida Corp. v. National Union Fire Ins. Co. of Pittsburgh*, 224 N.J. 189, 199 (2016).  Under this standard of review, the “trial court’s interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference. ”  *Manalapan Realty, L.P. v. Twp. Committee of Twp. of Manalapan*, 140 N.J. 366, 378 (1995).  Furthermore, in reviewing the matter, the Appellate Division applies the same standard under *Rule 4:46-2* as the motion judge.  *RSI Bank v. Providence Mut. Fire Ins. Co.*, 234 N.J. 459, 472 (2018).  This standard provides for the entry of summary judgment “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. ”  *R. 4:46-2(c)*.  Summary judgment is a stringent remedy that should be denied unless the right thereto appears so clear as to leave no room for controversy.  *Akhtar v. JDN Properties at Florham Park, L.L.C.*, 439 N.J. Super. 391, 398 (App. Div. 2015).  In order to obtain summary judgment, the moving party carries the burden of excluding all reasonable doubt as to the existence of a genuine issue of material fact.  *Saldana v. DiMedio*, 275 N.J. Super. 488, 494 (App. Div. 1994).  Furthermore, the Court may not pick and choose inferences from the motion record in ruling upon a motion for summary judgment.
[brief] Here, both the imposition of penalties for delay and counsel fees are expressly provided for by the Settlement Agreement.  It is well established that “a prevailing party can recover those fees if they are expressly provided for by statute, court rule, or contract. ”  Packard–Bamberger & Co., Inc. v. Collier, 167 N.J. 427, 440 (2001).  So too are contractual per diem delay penalties, particularly when important public policy considerations exist—such as the need for affordable housing in the context of Mt. Laurel litigation.  See e.g. Holtham v. Lucas, 460 N.J. Super. 308, 319 (App. Div. 2019) (affirming an award of per diem penalties where implicated by policy goals).
[brief] 223T57:5-58:2  In so finding, the Court expressly rejected the [...]’ “claim of right” defense to their theft offenses (see N.J.S.A. 2C:20-2c), exclaiming [...]’s “insistence on truing up and then counsel’s … assertion of the claim of right theory … were really quite incredible, because there is no possible explanation for what [[...]] did except that he knew it was wrong and he wanted to do it anyway. ”  (223T65:4-67:21, 227T19:23-49:10, 237T24:4-9)  The sheer breadth, longevity, continuity and magnitude of the [...]’ intentional misconduct was extraordinary, leading [...] to find that “[t]he number of breaches of fiduciary duty in this case are really quite unprecedented….”
[directive] è è  Submitted by:  Badge #: (PRINT Name of law enforcement officer)  è è (Date) (Signature of law enforcement officer)  Municipal Court of [...] State of New Jersey  WARRANT OF [...] v. IMPOUNDMENT  [...], N.J. 00000 N.J.S.A. 39:3-29.1a  Defendant  THIS MATTER having been brought to the attention of this Court by the above Certification signed by a duly authorized law enforcement officer, and the Court having considered the Certification and supporting document(s) submitted, IT IS THEREFORE ORDERED ON THIS day of , 200 that this Warrant of Impoundment be issued as a result of the defendant’s failure to provide an insurance identification card or other satisfactory proof of insurance within 24 hours of the above referenced Complaint-Summons for failing to possess or exhibit an insurance identification card in violation of N.J.S.A. 39:3-29.
[directive] See Section 1.1 (explaining that these Guidelines generally do not limit the authority of prosecutors with respect to the prosecution of nonBrimage-eligible offenses).  As noted in Section 7.1.2, where the prosecutor tenders a plea offer that requires the defendant to plead guilty to both a Brimage-eligible offense and a weapons offense defined in N.J.S.A. 2C:39-4.1(a) or (b), the prosecutor may not “double count” the weapons circumstance by using Special Offense Characteristic #1 for conduct involving the same specific conduct, event or episode that constitutes the factual basis for the conviction under N.J.S.A. 2C:39-4.1.
[brief] “The touchstone of the Fourth Amendment is reasonableness. ”  State v. Craft, 425 N.J. Super. 546, 553 (App. Div. 2012); citing Florida v. Jimeno, 500 U.S. 248, 250 (1991).  “The reasonableness of a warrantless search or seizure is determined ‘by assessing, on the one hand, the degree to which it intrudes on an individual’s privacy and, on the other hand, the degree to which it is needed for the promotion of legitimate governmental interests. ’”  Id.; citing State v. Davilla, 203 N.J. 97, 111 (2010).
[brief] State v. Hollander, 207 N.J. Super. 453, 474-75 (App. Div.), certif. denied, 101 N.J. 335 (1985).  The rational basis in the evidence was lacking.  Defendant’s admissions produced below provided little to no context to support passion/provocation manslaughter.  His text to [...] that he had been stabbed was not true, because the only injury to his hand was an incised wound to his right middle finger. \(^5\)  Only the victim suffered stab wounds.  The victim was fully clothed when found by the police whereas defendant fled the scene partially dressed without a shirt and socks on.  His admission to [...] that the victim demanded more sex is not supported by the evidence produced below.  In any event, the law is clear that rejection of a sexual advance is not evidence of adequate provocation.  State v. Jumpp, 262 N.J. Super. 514, 522-23 (App. Div.), certif. denied, 134 N.J. 474 (1993); State v. McClain, 248 N.J. Super. 409, 419 (App. Div.), certif. denied, 126 N.J. 341 (1991); Hollander, 207 N.J. Super. at 474-75.
[brief] Id. at *8-9.  Just like Chenault, the plaintiff argued that because the general contractor’s negligence was covered under the Essex policy, the exclusion did not apply.  For support, the plaintiff, like Chenault, turned to Search EDP, Inc. v. American Home Ins. Co., 276 N.J. Super. 537 (App. Div. 1993).  Id. at *8-9.  This Court rejected the plaintiff’s reliance on Search EDP, finding it readily distinguishable given the fundamentally different nature of commercial general liability and professional liability policies and their attendant policy language.
[brief] In *Tompkins v. Selip & Stylianou, LLP*, 2019 U.S. Dist. LEXIS 21937, at *7-11* (D.N.J. Feb. 11, 2019) (Pa112), the District Court held that defendant debt buyer’s attempts to collect an alleged debt while unlicensed under the NJCFLA supported claims under the FDCPA.
[directive] A prosecutor is not permitted to circumvent these Guidelines by instead charging a non-Brimage-eligible offense, such as conspiracy in violation of N.J.S.A. 2C:5-2, or by downgrading a provable Brimage-eligible offense to a non-Brimage-eligible offense.  For the purposes of these Guidelines, the phrase “most serous Brimage-eligible offense” means the Brimage-eligible offense that carries the longest term of parole ineligibility.  A prosecutor’s discretion in charging, downgrading, dismissing, negotiating or otherwise resolving or disposing a non-Brimage-eligible offense (other than for violation of N.J.S.A. 2C:39-4.1, N.J.S.A. 2C:35-4.1, or an offense subject to the No Early Release Act, N.J.S.A. 2C:43-7.2) is unaffected by these Guidelines and nothing in these Guidelines shall be construed, for example, to require a prosecutor to dismiss or “package” as part of a plea agreement any count charging a non-Brimage-eligible offense that may be pending against the defendant.  1
[brief] **CONCLUSION**  Taken together, it is clear that the Court’s jurisdiction was undermined by numerous misrepresentations and errors concerning service such that Defendant [...] was wrongly deprived of his day in court by incestuous and predatory operators who do not qualify as bona fide purchasers for value.  The decision whether to grant or deny a motion to vacate a default judgment should be guided by equitable considerations.  *Prof'l Stone, Stucco & Siding Applicators, Inc. v. Carter*, 409 N.J. Super. 64, 68 (App. Div. 2009) (noting that "Rule 4:50 is instinct with equitable considerations").  The Tax Sale Law, N.J.S.A. 54:5-1 to 137, serves "as a framework to facilitate the collection of property taxes."  *In re Princeton Office Park LP v. Plymouth Park Tax Servs., LLC*, 218 N.J.  52,61 (2014)(quoting *Varsolona v. Breen Capital Servs. Corp.*, 180 N.J. 605, 620 (2004)).  "Although the primary purpose of the Tax Sale Law is to encourage the purchase of tax certificates, another important purpose is to give the property owner the opportunity to redeem the certificate and reclaim his [or her] land."  *Simon v. Cronecker*, 189 N.J. 304, 319 (2007).  “One of the maxims lying at the very foundation of equitable jurisprudence is that "equity will not suffer a wrong without a remedy.""  *Federal Title, c., Guaranty* Co. v. Lowenstein, 113 N.J. Eq. 200, 209 (N.J. 1933).  Based on the foregoing, the [...] Defendants respectfully request this Court vacate the default judgment previously issued.  Defendants have met the standard under Rule 4:50-1 by showing that the judgment is void as it is based upon defective Affidavits, the Plaintiff and Intervenor committed fraud, it is no longer equitable and for all the other equitable reasons as described herein.
[brief] The reliability of a tip from a C.I. is assessed under a totality of circumstances test.  *State v. Smith*, 155 N.J. 83, 92 (1998).  “An informant's ‘veracity’ and ‘basis of knowledge’ are two highly relevant factors under the totality of the circumstances. ”  *State v. Zutic*, 155 N.J. 103, 110 (1998)(citing *Smith*, 155 N.J. at 93).  In this case, there was no dispute that [...] had no personal knowledge of the C.I.’s history or what the C.I. told [...] about the male in the Kia.