ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] SUPERIOR COURT OF NEW JERSEY APPELLATE  DIVISION  DOCKET NO. [...]  STATE OF NEW JERSEY, : CRIMINAL ACTION  Plaintiff-Respondent, : On Appeal from a Judgment of v.  : Conviction of the Superior Court of [...], : New Jersey, Law Division, Atlantic Defendant-Appellant.  : County.  Indictment No. [...]  Sat Below: Hon. [...], P.J.Cr.; Hon. [...], J.S.C.; and a Jury.  Your Honors:  Please accept this letter-brief on behalf of defendant-appellant in lieu of a formal brief pursuant to Rule 2:6-2(b).  TABLE OF CONTENTS  PROCEDURAL HISTORY AND STATEMENT OF FACTS .........................  1 LEGAL ARGUMENT ..............................................................................  1 POINT I SENTENCING DEFENDANT AS A PERSISTENT OFFENDER WITHOUT GRAND AND PETIT JURY FINDINGS OF THE PREDICATE FACTS  VIOLATED DUE PROCESS AND HIS RIGHTS TO A JURY TRIAL.  (14T 21-16 to 29-8)  ..................................................  1 CONCLUSION ..........................................................................................  10  PROCEDURAL HISTORY AND STATEMENT OF FACTS
[directive] 4.3  Requirements to use deadly force.  Strict requirements must be met before an officer may use deadly force.  There are, however, occasions when deadly force is necessary to protect officers and the public.  An officer may use deadly force only when the officer reasonably believes that such action is immediately necessary to protect the officer or another person from imminent danger of death or serious bodily injury.  Officers must adhere to the following:  (a) as discussed in Core Principle Three, when feasible, officers shall attempt to de- escalate situations, issue verbal warnings, or use non-lethal force with the goal of resolving encounters without using deadly force; (b) officers shall not use deadly force if a reasonably available alternative will avert or eliminate an imminent danger of death or serious bodily injury and achieve the law enforcement purpose safely; (c) when feasible, prior to using deadly force the officer shall identify themselves as a law enforcement officer and give a clear verbal warning to the suspect that the officer will use deadly force; and 14
[brief] Exhibit N: Deed from [...] to [...], dated 12/1/66…………..Da479  Exhibit O: Deed from [...] to [...], dated 4/13/72…………..Da484  Exhibit P: Deed from [...] to [...], dated 8/23/74………………Da489  Exhibit Q: Deed from [...] to [...], dated 3/21/77……………Da493  Exhibit R: Deed from [...] to [...], dated 9/21/82…………Da497  Exhibit S: Deed from [...] to [...], dated 11/29/90…………Da501  Certification of [...], filed 11/11/22………………………………Da508  Exhibit A: 2009 Deed of Easement to [...]……………Da524  Exhibit B: Letter from [...], dated 11/11/21…………………………Da544  [...] notice of cross-motion for summary judgment, filed 1/17/23………..Da546  Certification of [...], Esq., filed 1/17/23………………………………Da548  Exhibit A: Judgment filed 9/8/08 in Trunell v. Trust for Harrison…………………………………………………………………………Da552  Volume VI (Pages Da555 – Da652)
[brief] They are 1) - that a confidential relationship existed between [...] and [...] on one side and [...] and [...] on the other; 2) - that no gift was made by [...] of $50,000 to [...], despite a bank gift letter, and despite testimony of the Defendants that it was an engagement gift, as they recalled during trial; and 3) - That the “non-gift” of $50,000.00 had to be returned to [...] and [...] because it was obtained as a form of unjust enrichment, the remedy for which is restitution.
[brief] (2T65:8-66:2).  As Appellant admitted at trial, this voter “couldn’t have cast four votes. ” (2T66:16-17).  That is because the machine only allows a voter to vote for two people.  (2T65:18-22).  Appellant stipulated that there were no other issues with the ballot in question.  (2T26:22-28:14).  And as the trial court found, this machine write-in vote was not doubly cast for [...]—it was a single vote cast for [...].  (2T65:18-22).
[brief] J. 546, 554 (2006) (“The policy of strictly limiting judicial interference with arbitration is intended to promote arbitration as an end to litigation”); Policeman’s Benevolent Ass’n., Local 292 v. Borough of North Haledon, 158 N.J. 392, 402 (1999) (“An action to vacate challenges the underlying validity of the award and disrupts arbitration as a speedy and efficient method of resolving disputes”); and Kearny PBA Local No. 21 v. Town of Kearny, 81 N.J. 208, 221 (1979) (“An arbitrator’s award is not to be cast aside lightly”).  Judicial review of arbitration awards is extremely narrow and limited to the situations outlined in N.J.S.A 2A:24-8.  Daly v. Komline-Sanderson Engineering Corp. 40 N.J. 175, 178 (1963).  Undue means has been construed to mean basing an award on a clearly mistaken view of fact or law.  Local Union 560, I.B.T. v. Eazor Express, Inc., 95 N.J. Super. 219, 227-28 (App. Div. 1967) (emphasis supplied); See e.g. International Ass’n. of Machinists, Lodge 1292, Ind. v. Bergen Ave. Bus Owners’ Ass’n., 3 N.J. Super. 558, 566 (Law Div. 1949) (“The presumption is that an award is usually unassailable, operates as a final and conclusive determination, and, however disappointing it may be, is binding on the parties”; “Every intendment is indulged in favor of the award and it is subject to impeachment only in a clear case” that grounds to vacate the award pursuant to N.J.S.A. 2A:24-8 exist) (emphasis supplied).
[brief] Contrary to Plaintiff’s argument, [...]’s recall of certain Ozurdex® lots due to the possibility that a very small number of units in those lots generated a silicone particulate is not a judicial admission that the Ozurdex® unit at issue was one of the few that generated a particulate.  Plaintiff’s Opposition acknowledges (Opp 20) but never disputes the law in New Jersey (and around the country) cited by [...] (OB 28) holding the fact that a particular product is part of a recalled lot is not competent evidence that the specific product was affected by the issue prompting the recall, much less that the product was defective.  Consistent with this established law, the evidence is that only 2.2% of units in Plaintiff’s lot had the issue prompting the recall. \(^7\)  This undisputed fact requires summary judgment for [...], as no “reasonable man could find [by a preponderance of evidence] that a defect existed” based on only a 2.2% chance.  *Scanlon*, 65 NJ at 590 n.1.
[brief] The Supreme Court went on to explain that “the fairness of a sentence cannot be divorced from consideration of the person on whom it is imposed,” and explicitly held that, in assessing fairness, “the court sentences the defendant as the defendant appears before the court on the occasion of sentencing. ”  Id. at 273 (citation omitted).  Under Torres, then, a full resentencing is required for the sentencing court to consider not only the Yarbough factors but also the aggravating and mitigating factors as [...] stands on the day of the resentencing.  Ibid.  That case makes clear that the consideration of “overall fairness” is a holistic endeavor that implicates the entirety of [...]’s circumstances.  Indeed, in Torres itself the trial court’s failure to comply with its dictates resulted in a “remand for meaningful review and resentencing,” which the Court explained requires “a new resentencing proceeding. ”  Id. at 274 (emphasis added).  [...], then, is similarly entitled to a holistic reevaluation if the matter is remanded for resentencing.  In sum, any remand on the sentencing issues must be a wholesale resentencing that takes into account who [...] is on the day he is sentenced, including the application of mitigating factor four and any ability to pay restitution.  **CONCLUSION**
[directive] Tenga en cuenta también que la pregunta 7 incluye el delito de homicidio preterintencional si el delito subyacente es agresión sexual, así como cualquier delito respecto al cual el juez hace constar en el acta su decisión específica de que, dadas las circunstancias del caso, dicho delito se debe considerar un delito de violencia sexual, o un intento de cometer dichos delitos.  These additional questions need to be answered if you are pleading guilty to the offense of aggravated sexual assault, sexual assault, aggravated criminal sexual contact, kidnapping under 2C:13-1c(2), endangering the welfare of a child by engaging in sexual conduct which would impair or debauch the morals of the child under 2C:24-4a, endangering the welfare of a child pursuant to 2C:24-4b(3), (4) or (5)(a), endangering the welfare of a child pursuant to 2C:24-4b(5)(b)(i) or (ii) (if the offense was committed on or after February 1, 2018), leader of a child pornography network pursuant to 2C:24-4.1 (if the offense was committed on or after February 1, 2018), luring or enticing a child pursuant to 2C:13-6, criminal sexual contact pursuant to 2C:14-3b if the victim is a minor; kidnapping pursuant to 2C:13-1, criminal restraint pursuant to 2C:13-2 or false imprisonment pursuant to 2C:13-3 if the victim is a minor and the offender is not the parent, promoting child prostitution pursuant to
[directive] That statute unambiguously Page 59 [...] Guidelines 2 (2004 Revisions) provides in pertinent part that:  For the purpose of this subsection, a previous conviction exists where the actor has at any time been convicted under chapter 35 of this title or Title 24 of the Revised Statutes or under any similar statute of the United States, this State, or any other State for an offense that is substantially equivalent to N.J.S. 2C:35-3, N.J.S. 2C:35-4, N.J.S. 2C:35-5, N.J.S. 2C:35-6, or section 1 of P.L. 1987, c. 101(C. 2C:35-7).  (Emphasis added.)  It is clear from the text of this statute that the Legislature did not create an exception for temporally remote prior convictions, even though the Legislature on other occasions has done so and has thus indicated its awareness of this issue.  Cf., e.g., N.J.S.A. 2C:43-7.1 (the “three strikes” statute, which includes an express remoteness exemption).  Accordingly, for purposes of determining whether a defendant falls under Criminal History Category IV or V, the date of the prior drug distribution-type conviction is irrelevant.
[brief] (Pa803-Pa804 at T72:5-75:5).  The EEO office instructed [...] to meet with the two individuals separately ([...] and [...]) and instruct them to cease all contact with each other – and she followed these instructions.  (Pa804 at T74:4-77:3; Da52-Da54; Da685 at T46:19-23; T47:6-13; T49:15-22).  During [...]’s meeting, [...] informed [...] that he intended to file an EEO complaint against [...].
[brief] [...]’s parol evidence argument only applies to five of the 14 allegations the jury eventually found.  Even if the Court had excluded the parol evidence, it would only have resulted in dismissal of some of the claims against [...].  Further, Plaintiffs’ claims based on misrepresentations would have survived, because [...] admitted making those same false statements to consumers.  With or without application of the parol evidence rule, dismissal on summary judgment was simply not appropriate in this case.
[brief] The TCA defines “actual” and “constructive” notice as follows:  a.  A public entity shall be deemed to have actual notice of a dangerous condition within the meaning of subsection b. of section 59:4-2 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character.  b.  A public entity shall be deemed to have constructive notice of a dangerous condition within the meaning of subsection b. of section 59:4-2 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.
[directive] This Certification is supplied to the Superior Court, pursuant to the provisions of R. 3:23-9(d) and State v. Storm, 141 N.J. 245 (1995) to provide the court and the prosecutor with all facts that may foreseeably affect the fairness of the proceedings to enable the court to determine whether I may be appointed as an impartial private prosecutor for , the complaining witness in the above matter.  1.  (Please circle the applicable letter).  The complaining witness is: (a) an individual, (b) a business, or (c) an entity with its own police department (please describe):  (please describe):  2.  There is no actual conflict of interest arising from my representation of, and fee arrangement with, the complaining witness.  Check if correct.  If not, please explain:  3.  The prosecutor has elected not to conduct the prosecution.  Check if correct.  If not, please explain:  4.  The defendant is or is expected to be represented by [YES] [NO] [UNKNOWN] counsel.  Notice has been given to defendant’s attorney  [YES]  [NO]  Revised Form Promulgated by Directive #13-08 (10/08/2008), CN 10202-English page 1 of 2
[brief] Defendant argues that [...] created an appearance of bias because he asked [...]’s counsel why the matter was brought before the court when [...]’s parole eligible date was already approaching under the last sentence imposed.  (Db46).  This, according to defendant, shows that the judge expected to impose a similar sentence before hearing arguments.  (Db47).  Defendant also claims that the judge (1) refused to consider evidence of his rehabilitation and failed to make findings on rehabilitation, (2) found his representations to be an insincere attempt at legal gamesmanship, (3) admitted that he did not spend a lot of time reviewing the record, (4) contradicted himself by finding at the second sentencing that [...]’s home environment was worse than defendant’s, then finding at the third sentencing that defendant’s home environment was worse than [...]’s, and (5) improperly considered the heinous nature of the incident in determining the influence of peer pressure, maturity, and likelihood of reoffending.
[brief] Letter dated 1/25/21 from [...] regarding 4/14/2021 hearing [...]  Letter dated 4/26/21 from [...] Regarding hearing scheduled for June 23, 2021  Letter dated May 4, 2021 from [...] regarding hearing scheduled for June 23, 2021  Letter dated June 24, 2021 from [...] regarding hearing scheduled for July 20, 2021  Letter dated June 24, 2021 from [...] regarding hearing scheduled for July 20, 2021
[brief] POINT FOUR THE COURT ERRED IN FAILING TO FIND THAT THE DEFENDANTS DENIED PLAINTIFF OF HIS RIGHTS UNDER N.J.S.A. 10:5-4, 12(D),(E)(F), N.J.S.A. 10:1-2, PLACE OF PUBLIC ACCOMMODATIONS.  (Pa533; Pa534) Pa536; Pa053-Pa055; SeePa505; Pa469).
[brief] After the trial court in this action properly concluded that Plaintiff’s bad faith claim was not barred by the doctrines of res judicata or collateral estoppel, the trial court directed the parties to engage in discovery regarding the entire controversy doctrine – the only theory the trial court determined might theoretically bar the claim.  Discovery on that issue included production of hundreds of pages of documents and two days of deposition testimony.  Following discovery, the trial court then ruled on the issue.  The trial court’s factual findings and credibility determinations were unequivocal – Plaintiff did not possess knowledge of the facts underlying its bad faith until after the First Action:  *I believe what [Plaintiff] says, that the new evidence that supports the second Complaint was as a result of a February ’21 conversation [Plaintiff] had with* [[...]].  . .That’s what his testimony was.  I’m accepting it.  I’m making that finding of fact.  . .  Based on that credibility finding, the trial court correctly concluded that Plaintiff’s claims were not barred by the entire controversy doctrine.  Several months later, this Court rendered a decision in the First Action, affirming the trial court’s denial of Plaintiff’s post-judgment motion to amend because the case was “closed.
[brief] Therefore, the roadway is public property under.  *N.J.S.A.* 59:4-1(c).  Moreover, the pothole constituted a “dangerous condition” under N.J.S.A. 59:4-1(a).  The overall size of the subject pothole was approximately 4-feet in length (measured perpendicular to the roadway) and 12-inches wide (measured parallel to the striping).  (Pa 609)  It is estimated that the deepest portion of the pothole approximates 18-inches long by 12-inches wide by a minimum of 2-inches deep (the depth of the surface course).  (Pa 609).  As [...], P.E. noted in her report, a depression in the ground the size of that pothole would have posed a danger not only to the Plaintiff but to drivers and emergency personnel.  (Pa 313: report of [...].)  Therefore, the pothole constituted a dangerous condition.
[brief] But the Court also shall not order defendant to disclose the requested records pursuant to the common law right of access because they are not common law public documents.  To succeed in this claim, plaintiff must demonstrate that the records he sought were common law public documents.  That’s (1), (2), that he had an interest in the subject matter of the material, and (3) his right to access is balance[d] against defendant’s interest in preventing disclosure.  That’s Keddie, again at 30 - at  Like the language in OPRA, the definition for criminal investigatory records and common law public document is one that is required by law to -- made, maintain or kept on file.  However again, the Court could not find, nor did the parties find any law -- or case law that requires agency emails to be made, maintained, or kept on file.  For this reason the records sought by plaintiff are not common law public documents.  The Court need not address the other two requirements, such as the requirement of the common law to access in all three criterias that are required.  So, if one doesn’t - - if you don’t have one you don’t have to proceed to the other two.  And then, therefore, plaintiff fails to meet the burden of the first.  Thus, the Court shall not order the defendant to disclose the records pursuant to the plaintiff’s common law right of access and the application is designed …  The applied is denied and this matter is dismissed with prejudice.
[brief] [...]  – BAR ID# [...]  [...]  [...]  Attorney for Plaintiff/Appellant [...]  On the brief TABLE OF CONTENTS FOR THE BRIEF Description  Page TABLE OF JUDGMENTS, ORDERS AND RULINGS...........................................  iii  STATEMENT OF ALL ITEMS SUBMITTED ON SUMMARY JUDGMENT........................................  iv  TABLE OF CONTENTS FOR APPELLANT’S APPENDIX ........................................ vi  TABLE OF CONTENTS FOR APPELLANT’S CONFIDENTIAL APPENDIX........................................ ix  TABLE OF AUTHORITIES .................................................................................. x PRELIMINARY STATEMENT ..............................................................................
[brief] (Pa000093–94.)  Immediately above [...]’s electronic signature is an acknowledgment that she had “carefully read” the Agreement, that she understood its terms, and that she was entering in the Agreement “voluntarily. ”  (Pa000093.)  She further acknowledged that she was “not relying on any promises or representations . . . except those contained in” the Agreement.  (Id.)  [...] further acknowledged that she knew she was “giving up the opportunity to have Covered Claims”—i.e., those claims falling under the scope of the disputes covered by the Agreement—“decided by a court or jury,” as well as that she had “been given the opportunity to discuss this Agreement with [her] own attorney” if she wished to do so.
[brief] Q.  And there had been occasions in which you had put your older -- when your older child had woken up, you had put your hand over the older child’s mouth in an effort to get him to sleep.  Is that fair to say?  A.  Yes.  Q.  And the times that you did that with your son, your son did not die from that.  Is that correct?  A.  That's correct.  Q.  So on -- on or about March 8th to March 9th of June, 2019 when you were with your infant daughter, you used that same method to try and put your daughter to sleep.  Is that correct?  A. Yes.  Q.  And you did so because it had not hurt your son, you did not intend on killing your daughter, but you agree that it was reckless that you would put your hand over her nose and mouth in an effort to get her to sleep.  A. Yes.  Q.  You did -- you did review the discovery with your attorney, correct?  A. Yes.  Q.  All right.  And in that you know that there were recorded phone calls between you and your children’s mother, [...], correct?  A. Yes.  Q.  And in those phone calls, you admitted to her that you had, in fact, put your hand over [...] to prevent her from breathing in an effort to put her to sleep.
[brief] PROCEDURAL HISTORY  Petitioner-Appellee, [...] (hereinafter “Petitioner”), filed a Dependency Claim Petition on behalf of himself as surviving spouse and on behalf of their two young sons, [...] (then age 14) and [...] (then age 11).  (See Claim Petition at Ra, Vol. I, pages 1-2).  Respondent-Appellant, the [...] filed an Answer and admitted that Decedent was employed by the Respondent School District but denied that Decedent’s occupational exposure to COVID occurred in the course of her employment.  (Ra, Vol. I, page 3).  Pre-trial discovery took place, expert reports were exchanged, and settlement negotiations were conducted, in which the Court was actively involved.  In the workers’ compensation court, Petitioner filed a Motion to declare Decedent as an Essential Employee under the presumption statute, N.J.S.A. 34:15-31.11 (Pa1), based on her status as a school teacher for Respondent, [...] during the claimed period of occupational exposure.  In Respondent’s filing and throughout all the proceedings, Decedent’s status as a school teacher during that period has never been disputed or contested.  (Ra, Vol. II, page 30).  1  Respondent-Appellant will be referred to as “Respondent” and Petitioner-Appellee will be referred to as “Petitioner. ”  The Workers’ Compensation Judge granted Petitioner’s Motion, finding that Decedent was an essential employee.  (Ra, Vol. III, page 68).  Respondent filed a Motion for Leave to File an Interlocutory Appeal of the Judge’s decision and the Motion for Leave was granted on April 23, 2024.  (Ra, Vol. III, page 73).  Respondent submitted additional briefing and Petitioner now files this timely opposition.
[brief] I  Plaintiff’s interpretation of Model Civil Jury Charge 5.20(B)(2)(b) is unduly narrow and restrictive.  Appellants submit that Model Civil Jury Charge 5.20(B)(2)(b) is not limited to public sidewalks abutting commercial property.  Plaintiff claims that the jury charge with respect to snow and ice removal expressly cites to *Stewart v. 104 Wallace Street Inc.*, 87 N.J. 146, 157 (1981) which is the New Jersey case establishing sidewalk liability for commercial landowners.
[brief] SHOULD THE APPELLATE COURT CONSIDER THE STATE’S ATTENUATION ARGUMENT, IT SHOULD BE REJECTED AS IT IS NOT SUPPORTED BY THE CASE LAW.  The trial court’s decision denying the motion to suppress the motor vehicle stop of the Defendant must be reversed for the same reasons expressed in Appellant’s initial formal brief.  The State’s new founded reliance on the attenuation doctrine is misplaced.  In order to conduct a motor vehicle stop, law enforcement must establish a reasonable suspicion for the seizure.  *State v. Pitcher*, 379 N.J. Super. 308 (App. Div. 2005).  Reasonable suspicion exists where there is a “reasonable and particularized suspicion” to believe that the individual has just engaged in, or was about to engage in, criminal activity.  *State v. Stovall*, 170 N.J. 346 (2002).  “A motor vehicle stop that is not based on a "reasonable and articulable suspicion is an 'unlawful seizure,' and evidence discovered during the course of an unconstitutional detention is subject to the exclusionary rule. ”  *State v. Smith*, 251 N.J. 244 (2022) quoting *State v. Elders*, 192 N.J. 224 (2007).  Thus, contrary to the argument now presented by the State, the motor vehicle stop which led to the discovery of the Defendant as a suspended driver, is indeed suppressible, and the State’s attenuation argument subsumes the same.