ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Such considerations take on added significance in this case because the proposed use is permitted in the adjoining municipality of [...].  The fact that [...] allows the use may suggest that the property in [...] is uniquely suited for the proposed use.  [Kohl v. Fair Lawn, 50 N.J. 268 (1967)].  In exercising its own zoning responsibilities, [...] is obligated to give significant weight to the zoning ordinance and plan of the adjacent municipality, [...], as well as to the character and uses of surrounding property in both [...] and [...].  [Id. at 73 (emphasis added)].  Here, Defendant was “obligated to give significant weight to the zoning ordinance and plan of the adjacent municipality,” [...].  A simple substitution of the municipalities in Ferraro with the towns in this matter illustrates the obligation that Defendant ignored.  In Ferraro, 70% of the property was in [...], and 30% in [...].  Id. at 63.  Here, 77% of the development is in [...], and 23% in [...].  4T 8:5-25; 9:1; see also FN4.  In Ferraro, [...], the municipality with the much smaller piece of land, denied a (d)(1) use variance, even though the proposed use was permitted in [...], the larger portion of the tract.  Ferraro, 119 N.J. at 73.  Here, [...], the municipality with the much smaller section of land to be developed, denied a (d)(1) use variance, even though the proposed use was permitted in [...], the larger portion of the tract.  Ja045; Ja085-Ja095; 4T 8:5-25; 9:1.  Based on these similarities alone, Defendant’s failure to provide “significant weight” to [...]’s zoning ordinance and plan becomes clear, and warrants reversal.
[brief] Specifically, the person must be told that he “has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. ”  *Miranda*, 384 U.S. at 479.  In *Rhode Island v. Innis*, 446 U.S. 291, 302–303 (1980), the United States Supreme Court reaffirmed the principle originally noted in *Miranda* that a freely volunteered statement is admissible notwithstanding the failure to advise the suspect of his constitutional rights.
[brief] Also, again, as guided by [State v.] Feaster,[156 N.J. 1 (1998)], it would be a bit misleading to redact those portions of the statement, given where they are in the stream of conversation, which again, was another characteristic that the court referred to in Kucinski.  ...  And I find that ... this is exactly the situation we have in this case where it was certainly the Defendant’s invocation of his right not to want to answer certain questions as part of a stream of speech.  And as guided in Feaster to redact those would certainly lead ... could potentially mislead the jury as to the statement as a whole as to how the questioning went about, and certainly could be, again, raise questions in the jury’s mind as to if ... the defendant was providing these statements, you know, why were there not questions about -- why was the defendant not asked questions about this specific instance.
[brief] (2T76 to 78)  The surgery helped, but the symptoms of dizziness, vertigo, lightheadedness and vision problems eventually returned.  (2T79 to 80)(2T75-9 to 15; 2T165-24 to 166-11)  [...] performed another surgical procedure involving insertion of a tube in the inner ear to relieve the fluid build up on July 7, 2009.
[brief] He was retained by the defense to conduct an independent medical examination and to prepare a report relating to injuries alleged by [...] that resulted from her accident of July 4, 2018.  He was provided with records of her medical history as well as materials relating to the accident.  He noted her extensive history of medical ailments that included having “very weak bones” and a history of prior compression fractures and concluded that “… as a result of my review of the records and the history and the physical examination, it was my opinion that she did not sustain any permanent injury as a result of the accident of July 4, 2018. ” (3T103-9 to 108-14).  On cross-examination, [...] stated that his physical examination of [...] “could have been ten minutes” and qualified that by adding “… the history and exam was probably more like twenty minutes. ” (3T112-10 to 18).  He was referred to his curriculum vitae which indicated extensive experience in the treatment of sports injuries including fractures of the knee, hip, wrist, elbow and shoulder.  Little mention is made of any training or treatment relating specifically to the spine.  (3T139-12 to 153-25).  In response to questioning about his experience in spine surgery, he stated he had done “a couple” in the last year, and ten in the past five years.  (3T132-1 to 5).  He agreed that “it’s possible” that [...] could have aggravated some nerve issues in her back as a result of her fall on concrete on July 4, 2018, but opined that she did not sustain a permanent injury.  (3T136-4 to 23).
[brief] (8T 79-13 to 21)  The Court gave absolutely no basis for this proposition, dogmatically asserting it as if its truth were undeniable.  Thus, this assertion amounted to “an impermissible presumption” not “‘supported by competent, credible evidence in the record’” because it was not grounded in “expert testimony, or the defendant's criminal history, lack of remorse, premeditation, or other competent evidence.
[brief] Travel by a policeman, fireman, or a member of a first aid or rescue squad, in responding to and returning from an emergency, shall be deemed to be in the course of employment.  Employment shall also be deemed to commence when an employee is traveling in a ridesharing arrangement between his or her place of residence or terminal near such place and his or her place of employment, if one of the following conditions is satisfied: the vehicle used in the ridesharing arrangement is owned, leased or contracted for by the employer, or the employee is required by the employer to travel in a ridesharing arrangement as a condition of employment.  Employment shall also be deemed to commence, if an employer provides or designates a parking area for use by an employee, when an employee arrives at the parking area prior to reporting for work and shall terminate when an employee leaves the parking area at the end of a work period; provided that, if the site of the parking area is separate from the place of employment, an employee shall be deemed to be in the course of employment while the employee travels directly from the parking area to the place of employment prior to reporting for work and while the employee travels directly from the place of employment to the parking area at the end of a work period.
[brief] Cases 62-64  Main St., L.L.C. v. Mayor & Council of City of Hackensack, 221 N.J. 129 (2015)  .................................................................  42  Adams v. Delmonte, 309 N.J. Super. 572 (App. Div. 1998) .................. 32, 33  Bonnabel v. Twp. of River Vale, 2013 N.J. Super. Unpub. LEXIS 1598 (App. Div. 2013)  ................................................................. 26, 27  Bruno v. Borough of Shrewsbury, 2 N.J. Super. 550 (1949)  ..................... 22 Cashin v. Bello, 223 N.J. 328 (2015) ....................................................  19 City of Plainfield v. Courier News, 72 N.J. 171 (1976) ..............................  22 CKC Condo. Ass'n, Inc. v. Summit Bank, 335 N.J. Super. 385 (App. Div. 2000) ...........................................................................  11 Colter v. Township of Pilesgrove, 393 N.J. Super 377 (App. Div. 2007)..  18, 21 Concerned Citizens of Livingston v. Twp. of Livingston, 2018 N.J. Super. Unpub. LEXIS 1356 (App. Div. 2018) ........................................ 26, 27 Concerned Citizens of Princeton, Inc. v. Mayor & Council of Borough of Princeton, 370 N.J. Super. 429 (App. Div. 2004) ............................... passim Damurjian v. Bd. of Adjustment of the Tp. of Colts Neck, 299 N.J. Super. 84 (App. Div. 1997) .................................................................  37  Estate of Dolente v. Borough of Pine Hill, 313 N.J. Super. 410 (App. Div. 1998) ...........................................................................  32  Gregory v. Borough of Avalon, 391 N.J. Super. 181 (App. Div. 2007) .... 36, 41 Hirth v. City of Hoboken, 337 N.J. Super. 149 (App. Div. 2001)  ............. 20, 21 Hopewell Valley Citizens' Grp., Inc. v. Berwind Prop. Grp. Dev. Co., L.P., 204 N.J. 569 (2011)  ........................................................................ passim  In re Plan for the Abolition of the Council on Affordable Hous., 214 N.J. 444 (2013)  ..................................................................................................................
[brief] The State respectfully asks this Court to affirm.  As the New Jersey Supreme Court continues to reaffirm, appellate review of sentencing is “deferential, and appellate courts are cautioned not to substitute their judgment for those of our sentencing courts. ”  State v. Case, 220 N.J. 49, 65 (2014) (citing State v. Lawless, 214 N.J. 594, 606 (2013)).  See also State v. Miller, 205 N.J. 109, 127 (2011); State v. Cassady, 198 N.J. 165, 180 (2009).  Indeed, if there is such adherence to the Code’s sentencing scheme by a trial court, “its discretion should be immune from second-guessing. ”  State v. Bieniek, 200 N.J. 601, 612 (2010).  See also State v. Jabbour, 118 N.J. 1, 5 (1990) (holding that, if a trial court follows the sentencing guidelines, an appellate court ought not second-guess the sentencing court’s decision); State v. Roth, 95 N.J. 334 (1984).
[brief] 6  The trial court had prepared a proposed 404(b) limiting instruction but when the court asked defense counsel whether counsel wanted that instruction, counsel said, “No. ”  (28T183-4 to 19)  Counsel’s explanation—that she was not requesting the charge because [...] had a reason for not giving a buccal swab—made absolutely no sense, especially because she (a) did not articulate to the court [...]’s actual explanations given at the time of the motion to compel and (b) did not elicit any evidence of any explanation from any witness. to her.  When an unrecorded, oral statement allegedly made by the defendant is introduced at trial, the jury must be given two instructions: (1) that the jury should receive, weigh, and consider such evidence with caution due to the risk of inaccuracy; and (2) that the jury must, if they determine the defendant’s statement is not credible, disregard the statement completely.  *State v. Hampton*, 61 N.J. 250 (1972); *State v. Kociolek*, 23 N.J. 400, 421 (1957); *N.J.R.E.* 104(c).  The reason we require this jury instruction is due to “the generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer. ”  *Kociolek*, 23 N.J. at 421.  Here, while the court gave a partial *Hampton/Kociolek* charge after [...]’s testimony (34T184-7 to 185-1) and again during its final charge (39T25-7 to 23), the court omitted the following crucial portions of the model jury charge:  In considering whether or not the statement is credible, you should take into consideration the circumstances and facts as to how the statement was made, as well as all other evidence in this case relating to this issue.  If, after consideration of all these factors, you determine that the statement was not actually made, or that the statement is not credible, then you must disregard the statement completely.  If you find that the statement was made and that part or all of the statement is credible, you may give what weight you think appropriate to the portion of the statement you find to be truthful and credible.  [Model Criminal Jury Charge, “Statement of Defendant—Allegedly Made” (Rev. June 14, 2010).]  The court’s final instructions also failed to include the portion of the model jury charge specifying the alleged oral statement to which the jury should apply the charge.  (39T25-7 to 23)  This likely confused the jury, as the court’s charge on “Alleged oral statement of the defendant” immediately followed a charge regarding Defendant’s recorded statement (39T22-16 to 25-7).  By failing specify that the jury should apply this charge to [...]’s testimony and failing to include the portion of the charge specifically directing the jury to completely disregard the statement if it found that the statement was not made, the trial court’s “omission [wa]s ‘clearly capable of producing an unjust result. ’”  State v. Jordan, 147 N.J. 409, 425 (1997) (quoting R. 2:10-2).  POINT IV
[brief] | | | Applied Underwriters Captive Risk Assurance Co., Inc. v. N.J. Dep’t | 35 | | of Banking & Ins., | | | 472 N.J. Super. 25 (App. Div. 2022) | | | Boller Beverages, Inc. v. Davis, | 43, 44 | | 38 N.J. 138 (1962) | | | Bosland v. Warnock Dodge, Inc., | 39 | | 197 N.J. 543 (2009) | | | Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., | 34 | | 419 U.S. 281 (1974) | | | Chase Bank U.S.A., N.A. v. Staffenberg, | 40 | | 419 N.J. Super. 386 (App. Div. 2011) | | | City of Newark v. Nat. Res. Council, Dep’t of Env’t Prot., | 27 | | 82 N.J. 530 (1980) | | | Crema v. New Jersey Dep’t of Env’t Prot., | 45, 46, 47 | | 94 N.J. 286 (1983) | | | Dep’t of Labor v. Titan Constr. Co., | 45, 46 | | 102 N.J. 1 (1985) | | | DiProspero v. Penn, | 40 | | 183 N.J. 477 (2005) | | | E. Bay Drywall, LLC. v. Dep’t of Labor & Workforce Dev., | 28 | | 251 N.J. 477 (2022) | | In re Election Law Enf’t Comm’n Advisory Op. No. 01-2008, 201 N.J. 254 (2010) ...........................................................................................................28 In re Farmers’ Mut. Fire Assurance Ass’n of N.J., 256 N.J. Super. 607 (App. Div. 1992) ..................................................................................43, 44 Friedler v. Gen. Serv. Admin., 271 F. Supp. 3d 40 (D.D.C. 2017) .......................................................................................34 Genworth Life Ins. Co. v. the State of N.H. Dept. of Ins., 174 N.H. 78 (2021) ...............................................................................................................42, 43 Gilleran v. Twp. of Bloomfield, 227 N.J. 159 (2016) ...............................................................................................................39 In re Herrmann, 192 N.J. 19 (2007) ................................................................................................................27 In re Issuance of a Permit by Dep’t of Envtl. Prot. to Ciba-Geigy Corp., 120 N.J. 164 (1990) ...............................................................................................................32 In re Lead Paint Litig., 191 N.J. 405 (2007) ...............................................................................................................39
[brief] *Id.*, at 204; see also *F.P.P.E. Consulting Eng’rs, Inc. v. Morda*, 2009 N.J. Super. Unpub. LEXIS 419, at *12 (App. Div. Feb. 25, 2009) (reversing judgment and remanding back to trial court for a plenary hearing to determine whether the parties intended to release future malpractice claims).  Defendants agreed to limit the 2015 Settlement to all claims “that were, have been or could have been, now, in the past, or in the future, asserted or alleged in”  *[...]*, and to claims “that relate to” *[...]* (see Pa0042, at ¶1.29).
[brief] Finally, when asked during her deposition if there is anything else Plaintiff believed evidenced race discrimination by Defendants, she responded that other than the above-referenced student-initiated complaints pertaining to teachers’ conduct, “No.  Not to my knowledge. ”  (Pl. Tr. 279:14-24).  Given the undisputed evidential record, no reasonable jury could infer any racial animus motivated Defendants in their actions regarding Plaintiff.
[brief] POINT II  THE FAILURE OF THE TRIAL COURT TO ADEQUATELY APPRAISE [sic]  THE JURY OF THE NECESSITY OF RETURNING  A SEPARATE VERDICT AS TO EACH DEFENDANT IN THE TRIAL OF TWO BROTHERS WAS ERRONEOUS AND PREJUDICIAL, NECESSITATING REVERSAL.  U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10.  (Not Raised Below)  POINT III  THE TRIAL COURT'S JURY CHARGE AS TO CIRCUMSTANTIAL  EVIDENCE WAS HIGHLY PREJUDICIAL, NECESSITATING REVERSAL.  U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR. 10.  (Not Raised Below)
[brief] An Ocean County grand jury returned Indictment [...] charging defendant, [...], with third-degree Possession of a Controlled Dangerous Substance in violation of N.J.S.A. 2C:35-10a(1) (counts one, three, four, five, and six); second-degree Possession with Intent to Distribute a Controlled Dangerous Substance in violation of N.J.S.A. 2C:35-5a(1)/2C:35-5b(2) (count two); and third-degree Possession with Intent to Distribute a Controlled Dangerous Substance in violation of N.J.S.A. 2C:35-5a(1)/2C:35-5b(3) (count seven).  (Da1-5).  Defendant filed a motion to suppress the evidence seized during the search of his vehicle, which the Honorable [...], J.S.C., heard on October 29, 2021.  (1T).  Judge Collins denied defendant’s motion in a written opinion and Order dated February 7, 2022.  (Da6; Da11).  Thereafter, on July 17, 2023, defendant appeared before the Honorable [...], J.S.C., and pleaded guilty to count two of the indictment, second-degree Possession of a Controlled Dangerous Substance with Intent to Distribute.  (2T; Da18-25).  In exchange for his guilty plea, the State agreed to recommend ten years of imprisonment with no period of parole ineligibility and to request a dismissal of the remaining counts of the indictment at sentencing.  (2T4-6 to 10).  On November 3, 2023, prior to sentencing, the State noted that because defendant was mandatory extended-term eligible, the ten-year prison term was the minimum allowed for a second-degree crime.\(^1\) (3T9-1 to 3).  Judge Rahill nonetheless downward departed from the plea agreement, sentencing defendant to seven years in prison with no period of parole ineligibility and imposing the appropriate fines, fees, and penalties.  (Da25; 3T13-19 to 24).  She also dismissed the remaining counts of the indictment and the disorderly-persons offense that was attached to his original complaint.  (Da25).  Defendant filed a notice of appeal seeking a reversal of the denial of his motions to suppress, or in the alternative, a resentencing.  (Da29-32).
[brief] *Id.* at 446-47.  Here, [...] and [...] testified to facts which permitted the jury to draw its own conclusion as to whether defendant committed the offense of aggravated assault, describing, for example, how defendant threw punches.  Likewise, the State presented several video exhibits depicting defendant’s assault on the officers.  Similar to whether the defendant in *Trinidad* committed official misconduct by falsifying his report, whether or not defendant committed aggravated assault on the officers in this case was “demonstrabl[e],” id. at 447, based on the video evidence.  In turn, the jury was well-equipped to reach its own conclusions about whether defendant was guilty of aggravated assault.  Further, the fact that the jury acquitted defendant of the third-degree aggravated assault of [...] and instead convicted him of the lesser-included offense of fourth-degree aggravated assault under count one, suggests that the jury was not swayed by the officers’ testimony about why they were arresting defendant.  As such, defendant did not suffer any prejudice.
[brief] THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING [...]’S CROSS-MOTION FOR SANCTIONS (Pa3430)  [...]’s cross-appeal seeks reversal of the trial court’s denial of its Cross-Motion for sanctions for Appellants’ refusal to withdraw their Motion.  “A trial judge’s decision to award fees pursuant to R. 1:4-8 is addressed to the judge’s sound discretion, and will be reversed on appeal only if it ‘was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment. ””  McDaniel v. Man Wai Lee, 419 N.J. Super. 482, 498 (App. Div. 2011) (internal citations omitted).
[directive] Although there are complaints against officers that are legitimate and based upon facts, others are contrived and maliciously pursued, often with the intent to mitigate or neutralize the officer’s legal action taken against the complainant.  The law enforcement agency must fully and impartially investigate the former, while taking a strong stand to minimize the latter.  The law enforcement agency should notify the County Prosecutor in any case where a complainant has fabricated or intentionally misrepresented material facts to initiate a complaint of officer misconduct.
[brief] THE TRIAL COURT FAILED TO APPLY NEW JERSEY RETROACTIVITY LAW AND IGNORED OVERWHELMING FEDERAL FCA PRECEDENT FAVORING PROSPECTIVE APPLICATION.  (Ja1–3; 4T)  The trial court’s ruling fails to address—and is directly contradicted by—well-established New Jersey precedent governing the retroactivity of statutory amendments.  Moreover, the trial court’s ruling does not even mention the substantial federal FCA precedent rejecting retroactive application of an identical amendment to the federal FCA, upon which the NJFCA is modeled.  The Legislature intended the NJFCA to “track[] the federal law,” and thus New Jersey courts look to federal FCA precedent to interpret the New Jersey statute as well.  Brennan, 454 N.J. Super. at 620 (quotation marks omitted).  Matching the interpretation of the federal FCA is unquestionably required when the applicable language of the two statutes is the same.  Ibid.  A.
[brief] The defendant’s reliance on State v. Oguta, 468 N.J. Super. 100 (App. Div. 2021), is not persuasive.  Oguta involved a “relatively rare set of facts requiring a self-defense jury instruction when a defendant is charged with unlawful possession of a weapon…”  Id. at 103.  The defendant in Oguta testified that he had the knife for a legal purpose: to cut up boxes at his job.  Id. at 110.  He testified that he intended to go to work on the day of the incident, which is why he was carrying the knife, and he spontaneously pulled out the knife when he was attacked.  Id.  Unlike the defendant in Oguta, the defendant in this case did not testify that she possessed the sharp object for any legitimate purpose.  Thus, no jury instruction on self-defense was necessary for the unlawful possession of a weapon charge for the sharp object.
[directive] Grand Jury Standards  Promulgated by Directive #23-06 (December 22, 2006)  Page 7 of 18  1.  YOU MUST BE A RESIDENT OF ______________ COUNTY  2.  YOU MUST BE A US CITIZEN  3.  YOU MUST BE AGE 18 OR OLDER 4.  YOU MUST NOT HAVE BEEN CONVICTED OR PLED GUILTY TO AN INDICTABLE OFFENSE.  5.  YOU MUST BE ABLE TO READ AND UNDERSTAND ENGLISH.  6.  YOU MUST BE PHYSICALLY AND MENTALLY ABLE TO PROPERLY PERFORM THE FUNCTIONS OF A JUROR, NOTING THAT THE JUDICIARY WILL, WITH ADVANCE NOTICE, PROVIDE REASONABLE ACCOMMODATIONS  CONSISTENT WITH THE AMERICANS WITH DISABILITIES ACT.  IF SELECTED, A JUDGE WILL FULLY INSTRUCT YOU REGARDING YOUR RESPONSIBILITIES AS A GRAND JUROR.
[brief] Plaintiff also suggested that [...]’s credibility was undermined by supposed testimony “about consciously intermingling company funds with personal funds and falsifying documentation about the company for potential investors”, citing 3T83:24-86:5.  However, the testimony cited does not state the former, which [...] did not do, and actually contradicts the latter, as [...] tried to explain to [...]’ counsel at trial how pro forma employment agreements were used in due diligence packages.  In sum, plaintiff has offered no basis whatsoever to attack the Court’s strong credibility findings in favor [...] and [...].  Their testimony should be accepted as credible evidence.