ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] In contrast to its treatment of employees such as [...], Defendant [...] permitted management, doctors, patients, and visitors to park in a specially designated lot close to the hospital building, which lot was equipped with ample pedestrian-safety features including sidewalks, crosswalks, traffic signage and markings, pedestrian warning signage, fenced-in walking areas, cones, a peninsula/island, and other safety measures.  Pa1029-1032 (41:1-44:22).  See also Pa378, Pa694-8 (photographs of pedestrian safety features in the management/physician parking area).  [...] manager [...] testified that “there was a different lot management parked in” and [...]’s policy was that “management parks here.  Employees park in the back.  Front spots are for visitors and patients. ”  Pa1029 (41:8-11); Pa1030 (42:7-9).  As a manager parking in the special lot close to the building, [...] was able to take a cement walkway to get from the management parking area to the hospital building.
[brief] There was evidence that Plaintiff struck his elbow and his knee when he fell.  “My knee and my elbow struck the pavement.  I had a raspberry and like a grapefruit like swelled up. ”  (2T71-9 to 10)  He had cuts and scrapes from the pavement.  First aid showed up and bandaged his elbow (2T73-4 to 6)  The jury also could have believed that Plaintiff struck his head on Defendant’s body, as he claimed, but that the strike was not sufficient to aggravate the pre-existing condition.  The Jury was instructed that Plaintiff sought damages for pain, suffering, disability and impairment, and the loss of enjoyment of life.
[brief] I.  Appellate Standard of Review of Motion to Compel Arbitration.  A decision granting or denying a motion to compel arbitration is reviewed de novo because the validity of an arbitration agreement presents a question of law, Skuse v. Pfizer, Inc., 244 NJ 30, 46 (2020).  As a result, the reviewing court need not give deference to the legal analysis by the trial court.  Goffe v. Foulke Mgt. Corp., 238 NJ 191, 207 (2019).  Goffe set the standards applicable to a motion to compel arbitration.  Goffe cited the Third Circuit handling of the issue in Guidotti v. Legal Helpers, 716 F3d. 764, 780 (3d Cir. 2013)  Id. at 214.  See also Kirleis v. Dickie, et al., 560 F3d. 156, 161-162 (3d Cir. 2009)  -  Once an opposing party comes forward with evidence he or she did not enter into an arbitration agreement, the movant must submit evidence showing the agreement was made.  If that is done, the weight to be given the evidence would be for the jury or fact finder.  These three cases hold that if there is a challenge to the validity of the arbitration agreement with factual disputes as to the existence of mutual assent, the court applies a summary judgment standard, holding a preliminary hearing as to disputed facts Goffe at 215, Guidotti at 214.  Because arbitration provisions are often embedded in contracts of adhesion, courts take particular care in assuring the knowing assent of both parties to arbitrate and a clear mutual understanding of the ramifications of that assent NAACP  Camden v. Foulke Mg., 421 NJ Super 404, 425 (App. Div. 2011); Atalese v. US Legal, 219 NJ 430, 442-443 (2014).  The party seeking to enforce an arbitration agreement has the burden to prove by a preponderence of the evidence the non-moving party assented to it.  Midland Funding v. Bordeaux, 447 NJ Super 330, 337 (App. Div. 2016); Merrill Lynch v. Cantone, 427 NJ Super 45, 59 (App. Div. 2012); Paul v. Timco, 356 NJ Super 180, 185 (App. Div. 2002).  The threshold issue for the court, is to determine whether there is an agreement to arbitrate Martindale v. Sandvik, 173 NJ 76, 86 (2002).  When deciding whether the parties agreed to arbitration, courts apply ordinary state law principles governing contract formation.  Kernahan v. Home Warranty Adm., 236 NJ 301, 317-318 (2019).  Courts examine the terms, surrounding circumstances and purpose of the contract, *Hirsh v. Amper Fin.*, 215 NJ 174, 187 (2013).  If there is an agreement, the court must decide its scope.  *Martindale* supra 173 NJ at 92.  In the quest for the common intentions of the parties to a contract the court must consider the relations of the parties, the attendant circumstances and the objects they were trying to attain *Kernahan* 236 NJ at 320.  An agreement must be sufficiently definite in its terms that the performance to be rendered by each party can be ascertained with reasonable certainty.  *Id.* at 325.  II.
[brief] (3T41-11 to 42-1).  Defendant was tried before the Honorable [...], J.S.C., and a jury on various dates between June 25, and July 15, 2014.  The jury found defendant not guilty on count one, guilty of the lesser-included offense of first-degree aggravated manslaughter under count two, guilty of the lesser-included offense of aggravated assault under count three, and guilty on counts five and six.  (12T21-17 to 23-14; Da8-11).  On September 18, 2014, defendant was sentenced to an aggregate term of 27 years, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, plus a consecutive 4 years with a 3-year parole ineligibility term.  (13T39-9 to 40-16; Da12-15).  Defendant filed a notice of appeal, and on June 27, 2017, this Court affirmed his conviction and sentence, and remand to the trial court to correct the judgment of conviction to include the correct final charges and aggregate sentence.  (Da16-30).  Defendant’s petition for certification was denied on December 12, 2017.  State v. Lovett, 231 N.J. 562 (2017).  On January 18, 2019, defendant filed a verified pro se petition for post-conviction relief (PCR) with exhibits.  (Da31-60).  [...] held an evidentiary hearing on February 11, April 8, July 15, and October 21, 2022, and June 7, 2023.  (14T, 15T, 16T 17T, 18T).  On June 27, 2023, the judge denied defendant’s PCR petition for the reasons expressed in his oral opinion.
[brief] “A worker is furthering the general employer’s business if both “‘the work being done [by the loaned employee] is within the general contemplation of the [general employer,]’ and the general employer derives an economic benefit by loaning its employee. ’ ”  Id. at 472-73 (second alteration in original) (emphasis added) (quoting Viggiano v. William C. Reppenhagen, Inc., 55 N.J. Super. 114, 119 (App. Div. 1959)).  In addition, “an agency relationship is created ‘when one person (a principal) manifests assent to another person (an agent) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act. ’ ”  New Jersey Lawyers’ Fund for Client Prot. v. Stewart Title Guar. Co., 203 N.J. 208, 220 (2010) (quoting Restatement (Third) of Agency § 1.01 (2006) (internal quotation marks omitted).  Generally, an agent may only bind his principal for such acts that are within his actual or apparent authority.  Id. (citing Carlson v. Hannah, 6 N.J. 202, 212 (1951)).  The Court should reverse the trial court’s grant of summary judgment to [...] because genuine issues of fact exist which demonstrate that [...] had control over [...].
[brief] [...] testifies that it was his understanding that a portion of the property that was originally Lot 3 was leased to [...].  He testifies that there was a sketch that was included in the bid specifications, and it showed the boundaries of the property that was subject to the lease.  He agrees that the portion of the property currently leased to [...] is the same portion of the property that was previously leased to [...], the previous owner of the amusement park (4T33:7).
[brief] *State v. Harris*, 181 N.J. 391, 419 (2004).  The de novo standard of review also applies to mixed questions of fact and law.  *Id.* at 420.  Where, as here, an evidentiary hearing was held, this Court reviews PCR claims in a manner that “is necessarily deferential to [the] court's factual findings based on its review of live witness testimony. ”  *State v. Nash*, 212 N.J. 518, 540 (2013); see also *State v. O'Donnell*, 435 N.J. Super. 351, 373 (App. Div. 2014) (“If a court has conducted an evidentiary hearing on a petition for PCR, we necessarily defer to the trial court's factual findings”).
[brief] So, my motion to suppress should have been allowed because the stop was unlawful in violation of my fourth amendment rights and the fruits of that unlawful arrest should have been suppressed.  *State v. Woodruff*, 403 N.J. Super. 620, 627-28 (Law Div. 2008)  ("Considering the plain language of the statute, and the persuasive authority of other courts, this court finds that a driver must maintain a lane to the extent that a person may reasonably maintain the lane, given surrounding circumstances, such as road conditions, weather, vehicle condition, and vehicle size and lane width, and taking into account the skill that a reasonable driver, as opposed to a perfect driver, should have. ”)  In State v. Woodruff, the superior judges reasonably and positively concluded and wrote that courts should consider the skill of a reasonable driver as opposed to a perfect driver when determining if a violation took place.
[brief] Thus, the Trial Court correctly found that any claims which challenged the legality of Plaintiff’s arrest were barred under Heck.  [...] also correctly found that Heck also barred Plaintiff’s illegal search and seizure claims.  McKinney v. Prosecutor's Office, 2014 U.S. Dist. LEXIS 79596, at *12 (D.N.J. June 4, 2014); see also, Rosembert v. Borough of E. Lansdowne, 14 F. Supp. 3d 631, 641 (E.D. Pa. 2014).  Plaintiff argues, essentially, that while Heck may bar a search and seizure claim related to the pellet gun, it would not bar Plaintiff for asserting an illegal search and seizure claim for the “machete/garden tool” found in Plaintiff’s vehicle because the charges related to possession of the “machete/garden tool” were dismissed, which constitutes a favorable determination.
[brief] B.  The resentencing court did not conduct any analysis when imposing consecutive sentences.  Had it done so, it would have imposed concurrent sentences.  Instead of independently assessing whether to run the sentences for [...]’s homicide and robbery convictions consecutively or concurrently to one another, the resentencing court simply incorporated the original sentencing court’s imposition of consecutive sentences into its own findings by reference.  (See 5T:25-7 to 15) (court’s finding it was “satisfied that the sentencing court properly considered and articulated the applicable *Yarbough* factors for the imposition of a consecutive sentence”); *See Yarbough*, 100 N.J. at 643-44.  The court’s failure to consider the *Yarbough* and *Miller* factors, as well as the overall fairness of the sentence, resulted in its reimposition of an extremely lengthy sentence with a virtually unchanged period of parole ineligibility.
[brief] They are the only party necessary for resolution of that issue.  [...] were the developers and are now deceased.  A company with the same name, [...] was not formed until 1984.  (Da125)  [...], LLC was later formed in 1999 ostensibly as a real estate holding company which did not include any development rights over Plaintiffs’ property.  (Da63).  So, we are left with deceased developers, [...], and a 1989 [...], which was not formed until 40 years after conveyance.  Having no claims against the developers, it was not feasible or practical to add the developers.
[brief] The Court further noted that an “agency has inherent power to waive de minimis violations of objective standards. ”  Id., citing SMB Assocs v. Department of Envtl. Prot., 264 N.J. Super 38, 59 (App. Div. 1993), aff’d, 137 N.J. 58 (1994).  The Court reversed the decision of the Board, noting that even though the letter was never received by [...], even if it had been, the notice was improper and late.  In this matter, like [...], the Board failed to provide timely, adequate, or proper notice of the Ricci Act.  Also like [...], [...] never received the notice.  The Board did not fulfill its obligation to notify the members of the [...] of this legislation “within 30 days” of July 8, 2019, including the requirement that they had to register their presence at the World Trade Center within 2 years of the law’s enactment, as was required by law.  The determination of the [...] acknowledges that it did not comply with the requirement to provide notice to all members and retirants enrolled in the [...] within 30 days of the Ricci Act’s enactment.
[brief] 223a, ¶¶ 81, 83; 230a, ¶¶ 125, 126; 231a, ¶ 129.  Significantly, nowhere in the Amended Complaint or Plaintiff’s brief does she deny removing her face mask or permitting her students to remove their face masks during in-person instruction.  Similarly, Plaintiff does not deny she was required to wear a face mask during the global pandemic and in accordance with the District Mask Policy.  Defendant [...]’s mere attendance at and participation in the November 20, 2020 administrative meeting forms the entire basis of Plaintiff’s cause of action against Defendant [...].
[brief] Because the Board exceeded its statutory authority, Cerebral Palsy Ctr., 374 N.J. Super. at 444, the trial court was correct in ruling the Board’s action null and void.  Isihos, 376 N.J. Super. at 597.  Appellant’s claim that the Board had jurisdiction to decide the parking enforcement dispute before it is meritless, and you should affirm nullification of the Board’s action on de novo review.  POINT II AS APPELLANT FAILED TO PRESENT ANY ORDINANCE THAT WAS PURPORTEDLY VIOLATED BY RESPONDENT’S ALLEGED “NON-CONFORMING USE” OR ANY OTHER PROOF THAT RESPONDENT’S USE WAS IN ANY PERTINENT RESPECTS  NON-CONFORMING  THE COURT PROPERLY DENIED APPELLANT’S CLAIM AT THE THRESHOLD LEVEL  For the reasons already described in Point I, the Board lacked the statutory power and authority to entertain Appellant’s application in the first instance and its resolution issued subsequent the hearing was void ab initio.  This being a threshold issue, this Court should affirm [...]’s opinion granting final judgment to Respondent on that basis alone, and it is not necessary for you to address the remaining issues.
[brief] Here, the core CRA and declaratory judgment issue is and has always been whether defendants recklessly and intentionally violated our State’s strong public policy in favor of robust informed civic participation and a competitive marketplace of competing ideas.  Cf: Gonzalez v. Trevino, 602 U.S. __ (June 20, 2024) (Alito, J. concurring) (slip op. at p. 4-5) (“[T]he First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including prosecutions, for speaking out. ”); National Rifle Association of America v. Vullo, 602 U.S. __, __(May 30, 2024)(slip op at p. 8) (“At the heart of the First Amendment’s Free Speech Clause is the recognition that viewpoint discrimination is uniquely harmful to a free and democratic society. ”); Justice [...], Reading the Constitution: Why I Chose Pragmatism, Not Textualism (2024)(at p.142) (“[T]he First Amendment is in part a transmission belt, assuring the development, through the marketplace of ideas, of public thought that is not simply speech for the sake of speech, but speech for the sake of political action. ”)  Plaintiff prevailed on this political free speech violation issue.
[brief] For all the foregoing reasons, the judgment of the court below must be reversed so as to allow the Town to create a new study and plan that complies with all of the statutory criteria of all of the applicable statutes of the Local Redevelopment and Housing Law.  Dated June 27, 2024  [...].  By: /s/ [...]  [...]  September 11, 2024  VIA E-Courts  Appellate  The Honorable Judges of the Appellate Division  [...]
[brief] The constitution requires defense counsel to provide “robust representation” of his client.  *Id.* at 18.  Just as in PCR matters, “the record will give PCR counsel a wealth of grist for his or her mill, in some cases, not. ”  *Id.* at 19.  “At the very least, where communication and investigation have yielded little or nothing, counsel must advance the claims the client desires to forward…and make the best available arguments in support of them. ”  *Ibid.*  “It goes without saying that a trial court should never put PCR counsel in the position of having to assess the merits of his client's petition. ”  *Ibid.*  The same must be true of trial counsel.
[brief] (Da8-7).  On February 22, 2023, defendant moved to suppress certain evidence police had recovered in a search of his house.  (Da8).  Defendant argued that police had obtained a search warrant, but had failed to knock and announce.  (Da9).  On March 15, 2023, defendant moved to suppress information gathered by a GPS installed on his car, as well as evidence discovered as a result of that information.  (Da13-14).  Although the installation was warrant-authorized, defendant argued that it was illegal because it took place in his driveway, where he claimed police had no license to be.  (Da29).  --- 1  “Da” refers to defendant’s appendix.  “Db” refers to defendant’s brief.  “Ca” refers to defendant’s confidential appendix.  “Pa” refers to the State’s appendix.  Following a testimonial hearing on October 3, 2023 and November 1, 2023, the Honorable [...], J.S.C. suppressed the evidence found in defendant’s house, but not the information gathered by the GPS.
[brief] Defendant [...] ("[...]") is a creature of State law located in Essex County.  (Pa48-Answ #51).  Defendant [...] is not yet governed under the Faulkner Act.  (Pa48-Answ #54).  [...] residents lack the direct democracy right of initiative and binding referendum.  [...] does not require its local elected officials to attend basic municipal law courses and training.  (Pa48-Answ #118).  Defendant [...] is [...]'s statutory business administrator.  (Pa48-Answ #105)  As of the July 13, 2021 commencement date of this hybrid prerogative writ/declaratory judgment/civil rights act violations test case, defendants [...], [...], [...], [...] and [...] were all members of [...]'s local governing body.
[brief] R. 2:10-2.  **B.  The Tire Iron**  The defendant asserts that the jury should have been instructed on self-defense regarding the defendant’s charge for unlawful possession of a tire iron.  This charge was not warranted by the evidence in the case.  The defendant testified that she found the tire iron in the front passenger seat of the victim’s car.  (6T 145:12-19).  Even though she testified that she “knew that [...] wasn’t alive at that point,” she swung the tire iron at his head “two or three times” because she saw his arm move.  (6T 145:20 to 148:2).  This was shown on the surveillance video.  (Pa 1).  Because she took the tire iron from the victim’s car and swung it repeatedly at his head even though she was in no danger at all, there was no factual basis for the trial court to instruct the jury on self-defense for the unlawful possession of the tire iron charge.  Even if it was error, it was a harmless error as discussed above.
[brief] Respondent-Intervenor [...] (“SW” or “Respondent”) submits this brief in opposition to Plaintiffs-Appellants’ (“Appellants”) appeal from the Trial Court’s judgment upholding a decision by Respondent-Defendant [...] (the “Town” or “Westfield”) to adopt Ordinance #2023-3 (the “Ordinance”), which adopted a Redevelopment Plan on February 14, 2024.
[brief] Large parts of the defendants' briefs are identical to one another.  fails to tell the Court is that the [...] trial was initially bifurcated so as to sever the possession of a weapon by a convicted felon count (the fifth count) from the main part of the case for obvious reasons and in compliance with the bifurcation requirement set forth in State v. Ragland, 105 N.J. 189, 192 (1986).  The only reason it was allowed in, however, was because the defendant later decided to testify and a hearing on the admissibility of his convictions for impeachment purposes under State v. Sands, 76 N.J. 127 (1978) revealed that the jury was going to hear about the prior conviction anyway (see NJRE 609), and the trial judge told the defendant even before he took the stand that he was going to reconstitute the trial.  And in fact, the trial court decided not to bifurcate the trial after all.  The situation in State v.  Wray, 336 N.J.Super. 205 (A.D. 2001), also cited by [...], was nearly identical to [...].  In Wray, the charges were the same and the trial had also been bifurcated initially as required under Ragland.  The only difference was that the trial judge did not tell the defendant until after he testified that the trial was going to be reconstituted, and for that reason the Appellate Division reversed the conviction.  AND, it ordered bifurcated trials!
[brief] A swab taken from defendant’s left hand revealed a mixture of DNA from defendant and [...].  (3T40-3 to 9; 3T40-13 to 19).  A swab taken from the passenger side of the vehicle owned by defendant’s father revealed a mixture of DNA with the victim being the main contributor and defendant being the minor contributor.  (2T105-21 to 2T166-1; 2T166-11 to 13; 3T42-18 to 21; 3T43-1 to 5).  A cutting from defendant’s jeans that tested positive for the presumptive presence of blood showed a DNA sample from the victim.  (2T163-15 to 22; 2T164-9 to 14; 3T17-3 to 10; 3T17-16; 3T19-19 to 15; 3T44-16 to 20; 3T44-24 to 3T45-2).  A blood sample from the waist area of the jeans showed defendant to be the major contributor to the DNA mixture.  (3T45-13 to 16).  No conclusion could be drawn as to whether the victim was a contributor to the mixture.  (3T45-19 to 25).  Anal swabs taken from defendant tested positive for the presence of sperm cells.  (3T18-4 to 6; 3T18-10 to 11).  Testing showed that the victim was the source of the DNA found in the sperm cell fraction.  (3T46-20 to 23).  Defendant elected not to testify on his own behalf, however, the defense called several witnesses.
[brief] He notes only that the State asserts that “here the jury was still instructed that defendant’s ‘presence at the scene of the crime’ and ‘his/her participation’ in the crime were each elements that the State was required to prove beyond a reasonable doubt for each offense. ”  (Rb 32)  The State does not provide a cite for this assertion.  These quotes do not appear in the jury instructions.  Similar phrases appear in the mere presence instruction, which is part of the accomplice liability charge:  While mere presence at the scene of the perpetration of a crime does not render a person a participant in it, proof that one is present as the scene of a commission of the crimes without disproving or opposing is evidence from which, in connection with other circumstances, it is possible for the jury to infer that the incentive thereof led to his continuance -- sorry, his continuance -- countenance, I'm sorry, and approval, and was thereby aiding the same.  (14T 165-21 to 166-6)  Although that instruction is potentially helpful—albeit, in this case, confusingly worded and in the middle of an instruction that never should have been given about an inapplicable theory of guilt—it does not explicitly inform the jury about the State’s burden to prove the identity and presence of [...] as the shooter beyond a reasonable doubt.
[brief] After granting [...]’s motion for summary judgment, the trial court sanctioned Plaintiffs for their bad faith pursuit of claims against [...] that they should have never brought in the first instance.  This Court should affirm its decision in all respects.  The trial court awarded sanctions pursuant to the Frivolous Litigation Statute, N.J.S.A. 2A:15-59.1.  The Frivolous Litigation Statute authorizes an award of attorneys’ fees and costs where the plaintiff’s complaint is frivolous.  N.J.S.A. 2A:15-59.1(a)(1) (“A party who prevails in a civil action, either as plaintiff or defendant, against any other party may be awarded all reasonable litigation costs and reasonable attorney fees, if the judge finds at any time during the proceedings or upon judgment that a complaint, counterclaim, cross-claim or defense of the nonprevailing person was frivolous.