ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] If the Trial Court had held a Ferreira Conference, as it was required to, Defendants would never have been allowed to make a similar argument; Defendants would have been ordered to produce the medical records or suffer sanctions.  However, just because the Trial Court failed to hold a Ferreira Conference, Defendants are now able to escape their duty and responsibility to produce the very records that Plaintiff needed to assert her claim and also claim that because Defendants did not produce the medical records they are entitled to dismissal of Plaintiff’s Complaint.  The logic asserted by Defendants and accepted by the Trial Court is beyond comprehension, contrary to all notions of justice and equity and most importantly, is the antithesis of what the Affidavit of Merit statute was enacted to accomplish.  If this Court upholds the Trial Court’s granting of Defendants’ Motion to Dismiss Plaintiff’s Complaint, then all defendants protected by the Affidavit of Merit statute would have free reign to withhold the very medical records that are needed by plaintiffs to obtain an affidavit of merit, which would allow these defendants to escape potentially meritorious claims.  As [...] wrote in his concurring and dissenting opinion in Ferreira regarding the dismissal of a plaintiff’s complaint for failure to submit an affidavit of merit, “it thwarts the stated aim of allowing meritorious cases to go forward.  That was never the intention of the Legislature when it enacted the Affidavit of Merit statute. ”  Ferreira, supra 178 N.J. at 157 (Long, J., concurring and dissenting).  Here, [...]’s notion rings more true than ever, it would be an entirely unjust result if Defendants, who gamed the Affidavit of Merit statute by failing to respond to Plaintiff’s request for medical records, are now allowed to assert that Plaintiff’s claim lacks merit.  **CONCLUSION**
[brief] (17T92-12 to 15).  The judge noted that [...] “was more responsive to questions presented by both the state and defense. ” (17T95-4 to 5).  When [...] did go off-topic, however, “this Court sustained defense counsel’s objection. ” (17T94-18 to 22, 95-10 to 13).  “It is … well established that a trial judge has broad discretion in controlling the scope of cross-examination to test credibility. ”  State v. Sands, 76 N.J. 127, 140 (1978).  To this end, N.J.R.E. 611(a) provides, “[t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence to … avoid wasting time.
[brief] ”  Id.  Prior statements are particularly relevant for impeachment purposes when they “contradict or call into question the defendant’s version of events[.]”  State v. Burris, 145 N.J. 509, 535 (1996).  Accordingly, “extrinsic evidence relevant to the issue of credibility” may be introduced “[f]or the purpose of attacking or supporting the credibility of the witness[.]”  N.J.R.E. 607(a).  A witness may be “subject to cross-examination about a prior otherwise admissible statement” that “is inconsistent with the declarant-witness’s testimony at the trial or hearing[….]”.  N.J.R.E. 803(a)(1).  Here, [...] correctly ruled that it was well within the bounds of discoverability for Plaintiff to question [...] at his deposition regarding the prior inconsistent statements he made in support of his guilty plea.  See 2T15:1-16:5.  In pleading guilty to aggravated assault before [...], [...] testified under oath that he had a verbal disagreement with [...] that turned physical, he “actually assaulted [[...]] by shoving him to the ground”, and that “in doing so [[...]] attempted to cause him significant bodily injury. ”  Da249- 50 (17:7-18:5).  At his civil deposition just a few months later, [...], also under oath, contradicted his prior testimony, denied he ever had a verbal disagreement with [...], denied shoving [...] to the ground, claimed that [...] simply “lost his balance” and “fell to the ground”, and denied attempting to injure [...] Da299-301 (42:23-43:3; 43:19-44:12); Da329-331 (72:15-73:14; 74:4-8).  Cross-examining [...] on his inconsistent testimony as to the central events in this litigation is relevant to his credibility and within the scope of discoverability.  [...] also correctly concluded that there was no privilege or other basis to justify defense counsel’s instructions to [...] not to answer questions regarding the prior statements he made in open court.
[brief] Exhibit 28, Dadura v. Yum! Brands, Inc., 2008 WL 926634 (App. Div. Apr. 8, 2008) (unpublished), filed April 26, 2018 Exhibit 29, Brower v. Wirtgen Group, 2012 WL 3030242 (App. Div. Jul. 26, 2012) (unpublished), filed April 26, 2018 Exhibit 30, Mann v. Heil Packer, 2010 WL 98883 (App. Div. Jan. 13, 2010) (unpublished), filed April 26, 2018 Exhibit 31, Bergen v. Able Energy, Inc., 2009 WL 222943 (App. Div. Feb. 2, 1999) (unpublished), filed April 26, 2018 Exhibit 32, Jarosz v. G&B LLC, 2013 WL 5268926 (App. Div. Sep. 19, 2013) (unpublished), filed April 26, 2018 Exhibit 33, Fendt v. Abrahams, 2013 WL 1405096 (App. Div. Apr. 9, 2013) (unpublished), filed April 26, 2018 Exhibit 34, Soto v. ICO Polymers N.A., 2017 WL 4530602 (App. Div. Oct. 11, 2017) (unpublished), filed April 26, 2018  Exhibit 35, McNulty v. Dover Mun. Util. Auth., 2007 WL 102587 (App. Div. Jan. 17, 2007) (unpublished), filed April 26, 2018  Exhibit 36, Estate of Sellino v. Pinto Bros. Disposal, LLC, 2013 WL 5300076 (App. Div. Sep. 23, 2013) (unpublished), filed April 26, 2018  Plaintiff’s Response to Movant’s Statement of Undisputed Material Facts, filed May 31, 2018
[brief] The Prosecutor continued to impeach [...] about information that was not in other reports.  (12T:12-25 to 16-25).  When asking [...] about [...]’s paranoid feelings, the Prosecutor asked “you read the report of [...] … is there anything in [...]’s report where the defendant is expressing feelings of paranoia to [...]. ” (12T:12-25 to 13-10).  Again, the State is not cross-examining regarding hearsay statements she relied upon in rendering her opinion.  Instead, the State is cross examining [...] using hearsay reports and information that she couldn’t have relied upon because it’s not in the report.  The State also asked about information that was not in the reports of [...] and [...], nurse practitioner.  (12T:14-9 to 16-27).  As this questioning continued, the defense objected.  (12T:17-5 to 6).  Specifically, the defense indicated “because he is asking the questions for the truth of the matter … in the reports. ” (12T:18-2 to 4).  “He is asking – he is supposed to ask her what she relied upon, he is asking her what is not in the report to impeach her on another expert’s – another doctor’s report. ” (12T:18-4 to 8).  The defense pointed out that the paranoia [...] relied upon was from her clinical interview from the defendant which is admissible to form her opinion.
[directive] Absent Filed Must Be Release of Revocation for Motion a Where Cases 8.3 Circumstances.  Extraordinary a committed has defendant a that believe to cause probable is there where case any In any for release on while 2C:43-7.2, N.J.S.A. Act, Release Early No the to subject crime seeking motion file a shall prosecutor the complaint-warrant, by charged crime indictable First or Prosecutor County the unless 2A:162-24 N.J.S.A. to pursuant release of revocation in Justice Criminal of Division of the Director Deputy a Director or the or Prosecutor, Assistant to not reasons extraordinary compelling and are there that finds Division, the by prosecuted cases release. of revocation seek Release. of Revocation Seek to Presumed Prosecutor Is the Where Cases 8.4 Committed Crime Is New a When Release of Revocation Seeking of Presumption 8.4.1 Complaint-Warrant. by Charged Offense
[brief] Assuming that a Lane Change is a “Turn” Within the Meaning of N.J.S.A. 39:4-126, Police Lacked Reasonable and Articulable Suspicion that a Turn Signal was Required Under the Circumstances.  Even if a lane change does constitute a “turn” within the meaning of N.J.S.A. 39:4-126, the traffic stop remains unlawful.  The statute requires that a motorist signal a turn only “in the event any other traffic may be affected” by the movement.  See N.J.S.A. 39:4-126.  As the Supreme Court emphasized in Williamson, “[t]he statute . . . does not require that a signal be given whenever a lane change is made. ”  138 N.J. at 303.  To justify a stop, then, police must have reasonable and articulable suspicion that a driver’s failure to signal is “in some degree likely to” affect other traffic.  State v. Moss, 277 N.J. Super. 545, 547 (App. Div. 1994).  Other traffic must be “fairly close and visible” for police to conclude that it may be affected by a car’s movement.
[brief] Opinion PER CURIAM.  *1  Defendant [...] was convicted of third-degree shoplifting, N.J.S.A. 2C:20–11b(1) (Count One); first-degree robbery, N.J.S.A. 2C:15–1 (Count Two); and third-degree attempted shoplifting, N.J.S.A. 2C:20–11b(1) and N.J.S.A. 2C:5–1 (Count Three).  He was sentenced to an aggregate term of nineteen years imprisonment with an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 43–7.2.  On appeal, defendant challenges various aspects of his trial, asserting unduly suggestive in-court identification and prosecutorial misconduct during summation.  Defendant also contests the propriety of his third- degree shoplifting conviction and challenges his sentence for first-degree robbery as excessive.  We affirm the robbery and attempted shoplifting convictions, but reverse the third-degree shoplifting conviction, and remand for entry of judgment of fourth-degree shoplifting and resentencing on all counts.
[brief] Much of [...]’s testimony centered on the critical differences among defendant’s statement to the police on January 1, 2018, the day after the murders; his statements to mental health professionals, including [...]; and defendant’s statements to him on May 24 and 25, 2021.  [...] noted that defendant’s narrative “changed pretty dramatically” from the one defendant gave to the police immediately after the murders to the one he gave to him.  (13T185-1 to 4).  When interviewed by the police, defendant described in vivid detail the sequence of events, including the number of times he shot each victim and where he shot them.  (13T193-22 to 194-6).  Three years later, when interviewed by [...], “all of this became vague….  It’s an extremely different story.  And the one he told me is vague, disjointed, with a great many omissions, compared to the story told to the police. ” (13T194-7 to 14).  [...] testified that defendant told the police he had heard voices only twice in his life, and that was between the ages of six and eight.  (13T194-15 to 25).  [...] noted that the first time defendant mentioned hearing a male voice was in January 2019, when he was interviewed by [...], but defendant did not describe anything “creepy” about the voice.  (13T195-1 to 4).  Three months later, in April 2019, during his interview with [...], defendant first described hearing a male voice saying “something ominous. ” (13T195-4 to 8).  [...] noted that by the time defendant “gets to [...], he says he heard a voice in the shower on the day of the incident, saying, ‘Welcome to the side of evil,’ which is the first and only time [defendant] said that. ” (13T195-9 to 12, 195-24 to 196-2).  On May 25, 2021, during the interview with [...], defendant said he heard a voice in the shower, but defendant did not recall what the voice said.
[brief] It is important to understand, like the Roberto panel, the practical consequence of what Plaintiff asks this court to do.  If full retroactivity of Tyler is permitted, that opens the floodgates of class action litigation against every tax sale certificate holder – whether public or private – that has foreclosed a tax lien in the past six years. \(^{10}\)  Given that courts are reluctant to grant retroactive relief in matters that seriously affect public finance, Town of Secaucus v. Hackensack Meadowlands Dev. Comm’n, 267 N.J. Super. 361, 378 (App. Div. 1993), the Roberto panel was right to elect pipeline retroactivity.
[directive] The procedures herein contain requirements that the Missing Persons Unit of the [...] be contacted as soon as the infant’s safety has been ensured.  A member of this Unit may be contacted at any time of the day or night by calling the [...] Headquarters at [...] and asking for the Missing Persons Unit.  After hours, a member of the Unit will be contacted by pager.  The Safe Haven for Infants Hotline, operated by the [...], may also be contacted at any time.  The Hotline number is [...].  Persons contacting the Police Department to request information may be referred to this number.
[brief] (Da229-43)  Expecting to see a particular familiar person can further undercut the reliability of an identification.  (Da236, 242, 253-54, 266-67)  [...] also explained that factors that lead to less reliable identifications, such as disguise, short duration, biased instructions, weapon visibility, less attention and opportunity to view, and lineup size (all present here) “can and do have a cumulative effect. ”  (Da284)  [...] also discussed research showing that jurors “are strongly influenced by witness assertions of familiarity;” higher levels of perceived familiarity are “associated with more guilty verdicts, higher positive perceptions of the eyewitness, and more negative perceptions of the defendant”; and jurors overvalue witness’s statements of confidence.  (Da243)  [...] also established that [...] was permitted to testify to the same issues in another murder case tried in 2014.
[brief] **POINT I. STANDARD OF REVIEW (Raised Below: Pa36-Pa37)**  New Jersey appellate courts apply a plenary standard of review to a trial court’s decision to grant a motion to dismiss.  *Rezem Family Assocs., LP v.* Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div. 2011).  When reviewing such a motion, a court must accept the facts alleged in the complaint as true and afford the pleader all reasonable inferences of fact.  Malik v. Ruttenberg, 398 N.J. Super. 489, 494 (App. Div. 2008).  Nonetheless, the motion should be granted if even a generous reading of the allegations does not reveal a legal basis for recovery.  Kieffer v. High Point Ins. Co., 422 N.J. Super. 38, 43 (App. Div. 2011).  Accordingly, a pleading should be dismissed if it fails to state a basis for relief and discovery would not provide one.  Rezem, 423 N.J. Super. at 113, citing Camden County Energy Recovery Assoc., L.P. v. N.J. Dep’t of Envtl. Prot., 320 N.J. Super. 59, 64 (App. Div. 1999), aff’d, 170 N.J. 246 (2001).
[brief] (3T 44-13 to 54-19)  Similarly, the defense admitted still-shots from the Beef Town and electric company videos and asked [...] to point out important features such as which street the shooter turned down after the shooting and how many people were shown walking before and after the truck near the intersection of East 16th and Governor.  (2T 91-15 to  The defense also drew attention to the still-shot in which [...] identified himself, which counsel described for the record as a person wearing “a blue jacket and black pants” -- a description similar to [...]’s own during his interrogation.  (3T 119-19 to 121-15; Da 67 at 6:40 to 9:50)  Neither during redirect, nor at any other point during the testimony, did the State rebut either of the defense’s critical points: that [...] was wearing dark clothing (unlike the shooter) and that the electric company video suggested that only one person ([...]) continued walking along East 16th just after Governor.
[brief] Also relevant is that two men who were convicted in 2014 of a string of armed robberies stemming multiple counties, including Camden, received significantly lower terms.  These crimes were more severe, as a store clerk was shot multiple times and was paralyzed, in contrast to the lack of bodily injury in this case.  One defendant, [...], received a 20 year term with 17 years parole ineligibility.  The other, [...], was sentenced to 12 years with just over 10 years parole ineligibility.  (Da 305).  This enormous disparity between equally culpable defendants cries out for meaningful judicial review.  Despite being sentenced, and re-sentenced upon remand, no court has reviewed whether petitioner’s sentence was unfairly disparate.  Though petitioner properly raised this cognizable issue in his petition, the PCR judge failed to conduct the required disparity analysis under Roach, namely, if (1) the co-defendant is identical or substantially similar to the defendant regarding all relevant sentencing criteria," and, (2) "then inquire into the basis of the sentences imposed on the other defendant," and (3) considering "the length, terms, and conditions of the sentence imposed on the co-defendant."  Id. at 233.  This Court should remand this matter for a hearing in which petitioner should have the opportunity to present evidence relevant to the disparity and for the court to consider the fairness of the disparate sentence after analyzing these factors.
[brief] ”  1T47:25-25 through IT48:1-4.  The defense has unwittingly admitted this fact.  The defense asserts that [...] is the acting agent for the developer.  “Mr. McDonough certified that, for the last 35 years, he assisted the [...], [...], and [...] in reviewing and passing upon all building plans in the [...] community pursuant to the Genesis Deed. (Da881-886)” (Db38).  However, the record below reveals a letter, dated July 17th, 1998, wherein [...] states:  “I would like to point out that the Developer does not have the power to change the club’s by-laws nor deed restrictions”.  (Da622).  Although exhaustive research has yielded no case on point in New Jersey; a highly persuasive case from the Arizona Supreme Court provides excellent guidance on a very similar issue.
[brief] [...]'s tenure in this matter has been short, without the filing of any substantive pleadings and without any substantive court appearances.  [...] cites to *Dewey v R.J. Reynolds Tobacco Company*, 109 N.J. 201 (1988) for the proposition, rarely invoked, that courts have recognized the “paramount importance of ‘a client’s’ right to freely choose his counsel. ”  That principal is not without limitations.  In Dewey, the court stated in reference to such proposition:  We recognize that a person's right to retain counsel of his or her choice is limited in that "there is no right to demand to be represented by an attorney disqualified because of an ethical requirement."  Reardon v. Marlayne, Inc., supra, 83 N.J. at 477; State v. Lucarello, 135 N.J. Super. 347, 353 (App.Div.), aff'd o.b., 69 N.J. 31 (1975).  . . .  The complaint in this matter was filed by [...] in 1982.  [...] became co-counsel in 1983.  As of September 1986 that firm's attorneys and paralegals had expended more than 1,800 hours preparing this case for trial.  They have undoubtedly expended many hundreds more since that time.  By that September 1986 date thirty-nine witnesses had been deposed, and [...] attorneys had attended all but three of those depositions.  Other depositions were scheduled to be taken after that date.  [...], the [...] attorney charged with responsibility for this case, filed an affidavit below indicating that, as one might expect in complex litigation, plaintiff's co-counsel have allocated different aspects of the case between themselves.  Darnell properly questions whether at this late date, with trial fast approaching, another attorney could effectively master the complicated technical aspects of the case entrusted to him, or whether another attorney could develop the knowledge of and personal relationship with the various witnesses and with the plaintiff herself.  As already indicated, had [...]'s appeal reached us at an earlier juncture, we unquestionably would have upheld the disqualification of the [...] firm for the reasons set forth above.  We believe, however, that an order disqualifying counsel on the eve of trial would do more to erode the confidence of the public in the legal profession and the judicial process than would an order allowing the firm to continue its representation of the plaintiff.  We therefore conclude that the [...] firm should continue that representation.  *Dewey*, 109 N.J. at 218-19.  In addition, the Supreme Court imposed severe monetary sanctions on [...], including that further services of Wilentz be continued without charge and that any contingency amount be reduced.  Further, the totality of all fees charged had to be reviewed by the Court.  *Id.*  At 220.  Here, because [...] has done little, if any, substantive work on this matter, coupled with the facts presented, disqualification is proper, Respondents’ argument regarding a client’s choice of counsel was properly disregarded by the Trial Court.
[brief] When Appellate courts apply a deferential standard in reviewing factual finds by a judge the courts "give deference to the trial court that heard the witnesses, **sifted the competing evidence**, and made **reasoned** conclusions."  *Griepenburg v. Twp. of Ocean*, 220 N.J. 239, 254 (2015).  The facts in this appeal before this court demonstrate the trial court failed to draw reasoned conclusions (to be noted, the case before this court was decided on paper and as established in this appeal ignored all relevant facts and evidence) as it did not recognize the evidence that it was deemed to sift through (Service of Process had NOT been executed (Pa6; Pa10; Pa21; Pa33-Pa35; Pa39-Pa41), while the court congruently misapplied case law (laches) as will be further established in Argument II.
[brief] (MA-82, 87, 91-92, 102, 206; Tr. 7-30-21 at 3, 4, 6-11, 14, 16, 19-23, 34-47, 8-10-21 at 6, 7, 13-17, 22, 25, 27, 43, 44, 51, 4-28-22 at 6-85, 10-28-22 at 2-15, 18-24, 30, 34-36, 42, 43, 45, 50, 11-16-21 at 9, 14, 22, 33-38, 51, 58, 60, 64, 2-11-22 t 4, 5, 8-15, 2-7-22 at 5-21, 27, 29-44, 10-28-22 at 12, 18, 20, 22-24, 30, 31, 34, 35, 37, 41-43, 50, 4-20-22 at 6-53)  Mother and her husband transferred some of the insurance proceeds to a special [...].  As the beneficiaries of the insurance proceeds, they had the right to use, invest, or transfer the money to any account they chose.  However, despite it being irrelevant to the probate issues, Estranged Wife and her counsel explored the [...] and persuaded the Trial Court to order the release of funds from the trust in violation of Wyoming law.  (Tr. 7-30-21 at 15, 27, 37, 43, 8-10-21 at 22, 27, 10-28-22 at 11, 13, 30, 31, 41, 50, 2-7-22 at 17-19, 24, 43, 10-28-22 at 11, 13, 30, 33, 41, 50, 11-16-21 at 34, 35, 55, 56, 2-11-22 at 13, 15)
[brief] [...] was able to confirm that Defendant and he were the ones captured on several surveillance images introduced at trial depicting the pair leaving the Ramada at around 7:24 p.m. and returning at around 9:36 p.m. (30T 205-21 to 208-13).  [...] testified that he drove a Nissan Rogue to transport Defendant and himself to a nearby apartment where they walked to the Hampton Gardens at 7:24 p.m.  He then went back to the vehicle and parked in the back of the Hampton Gardens.  (30T 210-13 to 217-12, 281-25 to 282-24).  [...] said that Defendant had [...]’s “trap phone” with the number ending in 1702 at the time, and that this phone received a text message from [...] asking [...] to open the door.  (30T 216-8 to 219-19).  [...] narrated the contents of call records reflecting calls between Defendant and he immediately prior to the murder during which [...] was sitting in the Nissan and Defendant was watching [...].  In one such call, [...] called Defendant after Defendant had repeatedly tried to call him, and Defendant asked [...] when he would show up in person to which [...] lied and said he was nearby when he was actually in the back parking lot.  (30T 220-14 to 223-23).  At around 9:00 p.m., Defendant returned to [...], who was still in the Nissan, reporting that he “got” [...], and the two of them drove back to the Ramada Inn.