ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Defendant moves for leave to appeal from the motion court’s order granting the State’s motion to admit defendant’s statement.  Defendant contends the statement is not admissible under N.J.R.E. 404(b) and that the statement cannot be adequately sanitized by any redaction or jury instruction.  (Db9-15).  “Trial court decisions concerning the admission of other-crimes evidence should be afforded ‘great deference,’ and will be reversed only in light of a ‘clear error of judgment. ’”  State v. Gillispie, 208 N.J. 59, 84 (2011) (quoting State v. Barden, 195 N.J. 375, 390-91 (2008)).  “The admissibility of such evidence is left to the sound discretion of the trial court, as that court is in the best position to conduct the balancing required under Cofield due to its ‘intimate knowledge of the case. ’”  Ibid. (quoting State v. Covell, 157 N.J. 554, 564 --- 3 Point I of the State’s brief addresses Points II and III of defendant’s brief.
[brief] Defendant next cites *Leang v. Jersey City Bd. of Ed.*, 399 N.J. Super. 329 (App. Div. 2008), *aff’d in part, rev. in part on other grounds*, 198 N.J. 557 (2009) for the position that where a judge expresses opinions on credibility issues on a summary judgment motion, the case should be heard by a different judge on remand.  However, in *Leang*, the Appellate Division remanded and specifically directed the matter be assigned to a different judge than the one who decided the summary judgment motion.  “Where a judge resolves disputed issues of fact based on opposing certifications without an evidentiary hearing and expresses opinions respecting credibility, the matter should be remanded to another judge. ”  *Id.*, at 380.  Unlike *Leang*, the Trial Court did not make credibility issues on the parties’ competing affidavits submitted for their partial Summary Judgment Motions.
[brief] Pa134  Oral Decision 10/2/2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3T | Cases | Page | |----------------------------------------------------------------------|------| | Berninger v. Board of Adjustment of Midland Park, | 15 | | 254 N.J. Super. 401 (App. Div. 1991), aff'd o.b., 127 N.J. 226 (1992) | | | Bressman v. Gash, 131 N.J. 517 (1993) | 16 | | Burbridge v. Mine Hill Twp., 117 N.J. 376 (1990) | 15 | | CBS Outdoor v. Lebanon Planning Bd., | 15 | | 414 N.J. Super. 563 (App. Div. 2010) | | | Cell v. Zoning Bd. of Adjustment of West Windsor Twp., | 15 | | 172 N.J. 75 (2002) | | | Cell S. of N.J. v. Zoning Bd. of Adjustment, 172 N.J. 75 (2002) | 20 | | Clifton City BOE v. Clifton City Zoning Bd. of Adjustment, | 25 | | 409 N.J. Super. 389 (App. Div. 2009) | | | Dunbar Homes, Inc. v. Zoning Bd. of the Twp. of Franklin, | 14 | | 233 N.J. 546 (2018) | | | Grabowsky v. Twp. of Montclair, 221 N.J. 536 (2015) | 14 | | Jock v. Zoning Bd. of Adjustment of the Twp. of Wall, | 15 | | 184 N.J. 562 (2005) | | | Kaufmann v. Planning Bd. for Warren Twp., 110 N.J. 551 (1988) | 16 | | Klug v. Bridgewater Planning Bd., 407 N.J. Super. 1 (App. Div. 2009) | 25 | | Medical Ctr. at Princeton v. Princeton Twp. Zoning Bd., | 15 | | 343 N.J. Super. 177 (App. Div. 2001) | | Morris County Fair Housing v. Boonton Twp., 220 N.J. Super. 388 (Law Div. 1987), aff’d, 230 N.J. Super. 345 (App. Div. 1989) ..................................
[brief] Est. of Cordero ex rel. Cordero v. Christ Hosp., 403 N.J. Super. 306, 312 (App. Div. 2008) (internal quotations omitted).  [...] makes the unsupported claim that no proof exists that [...] shopped for [...] on the date Plaintiff was injured.  Yet, the record indicates otherwise.  Two (2) receipts produced by [...] revealed that the products purchased on the day of Plaintiff’s incident were made at the [...] Hackensack location utilizing [...]’s [...] account.  (Pa72-Pa74)  [...] has not presented any proof to cast doubt that [...] was making purchases on behalf of [...].  Furthermore, [...] mistakenly contends that Plaintiff did not rely on [...]’s representations as being an alleged employee of [...].  After [...] struck Plaintiff with his overloaded U-boat, he made various representations regarding his affiliation with [...], which justified both [...], and, in turn, Plaintiff’s reliance upon the fact that he had the authority to purchase products on [...]’s behalf.  This caused both parties to perceive that [...]’s negligent acts were the responsibility of [...].
[brief] There, the Supreme Court determined it was unfair for the defendant to have his suppression motion denied when his co-defendant’s motion had been granted, and the hearings were substantially identical.  *Id.* at 195-96.  Part of why the Court determined the inconsistent results were unfair was because the defendant was unable to join his co-defendant’s motion to suppress due to no fault of his own.  *Id.* at 195.  Thus, the Court reversed the defendant’s judgment of conviction and remanded the matter for entry of an order of suppression.  *Id.* at 196-97.  For the reasons set forth above, these concerns about fairness are not applicable here.  In fact, the Court warned about its concerns in applying collateral estoppel in situations like this, as it “would create an incentive for codefendants to schedule their motions consecutively so as to capitalize on a favorable ruling.
[brief] Defendant submits this reply brief to Plaintiff’s opposition brief that resorts to misrepresentations and deflections which prove it is bereft of any opposition to Defendant’s opening brief.  In short, the Special Civil Part resurrected a complaint it dismissed three years prior for lacking jurisdiction that was still lacking when it was reinstated.  That court did so solely because it wanted to enforce a fee arbitration decision it had no jurisdiction over.  Its decision even questions whether it could have done what it did because R 1:20-A-3(e) directs Plaintiff to file a R 4:67 plenary action in the Law Division to enforce an arbitration decision—not reinstate a void complaint.  Plaintiff refused to file under R 4:67 because he wanted to prevent Defendant from filing an answer, counterclaims and affirmative defenses regarding Plaintiff’s legal malpractice and frauds discovered at the fee arbitration hearing.  The Special Civil Court further erroneously made decisions in that case it lacked jurisdiction over, to the point of taking money in escrow pending this appeal.  All of that violates the three principles or general rules from the Saffer case: (1) the negligent attorney is precluded from recovering his attorney fee and the total amount of the malpractice claim recovery goes to the plaintiff.  (2) ordinarily, an attorney may not collect attorney fees for services negligently performed, and (3) “in addition, a negligent attorney is responsible for legal expenses and attorney fees incurred by a former client in prosecuting the legal malpractice action. ”  *DiStefano v. Greenstone*, 357 N.J. Super. 352,357 (App. Div. 2003).  Furthermore, *Saffer v Willoughby* directs a trial court to stay an arbitration award when malpractice is raised because the “fee awarded is often tightly intertwined with the legal malpractice, posting of a bond or cash as a condition of the stay should not ordinarily be required. ”  *Saffer*, at 260.  The transcript in this appellate record shows Defendant informing of the legal malpractice discovered at the fee arbitration hearing and arguing *Saffer* and the *Hunnel* case (see opening brief), but the lower court ignored the law, told Defendant to file a separate legal malpractice action which is contrary to *Saffer, Hunnel*, and the entire controversy doctrine, then ordered Defendant to escrow the money pending appeal.  The May and October, 2022 Orders in the trial court must be vacated and all orders and other directions made after the trial court dismissed the case in August 2019 that say anything other than the case was dismissed must be vacated, and the case must be dismissed as there is no subject matter or personal jurisdiction.  **LEGAL ARGUMENT**
[brief] State Police Retirement Board Final Decision 9/27/23……………………………Pa9  State Police Retirement Board Initial Decision 6/13/23…………………………Pa24  PROCEDURAL HISTORY  On or about July 8, 2019, the Bill Ricci Rescue, Recovery, and Cleanup Operations Act (hereinafter referred to as the “Ricci Act”) was signed into law.  On or about March 3, 2023, [...], along with many others, filed his Eligibility Registration Form to register his presence at Ground Zero under the Ricci Act, along with a Request for Amended Benefits Form, Affidavit, and Petition.  Pa30.  Pa56.  Pa58.  Pa60.  On or about May 2, 2023, the Division of Pensions administratively denied [...]’s appeal and the matter was transmitted to the State Police Retirement Board.  Pa65.  On or about June 13, 2023, the State Police Retirement Board issued an initial decision to deny [...]’s request to register for the Ricci Act.  Pa24.  On or about July 18, 2023, [...] appealed the Board’s initial decision and requested an administrative hearing.  Pa16.  The Board denied an administrative hearing and issued a Final Agency Decision on September 27, 2023.  Pa9.  This appeal ensued.
[brief] \item  \textsuperscript{21}  See Saffos (approving 5x multiple); Baker (6x multiple); \textit{McGinnis v. Am. Home Mortg. Servicing, Inc.}, 901 F.3d 1282, 1290 (11th Cir. 2018) (5.9x multiple); \textit{Saccameno v. Ocwen Loan Servicing, LLC}, No. 15 CV 1164, 2019 WL 1098930, at *31-32 (N.D. Ill. Mar. 1, 2019) (5:1x multiple); \textit{John Ernest Lucken Revocable Tr. v. Heritage Bancshares Grp., Inc. }, No. 18-3012, 2018 WL 7821656 (8th Cir. Nov. 14, 2018) (8:1x multiple); \textit{Yung v. Grant Thornton, LLP}, 563 S.W.3d 22, 72 (Ky. 2018) (4.1x multiple); and \textit{First Gov’t Lease Co. v. Nw. Scott Cty. Volunteer Fire Dep’t}, 2018 Ark. App. 419, 17 (2018), reh’g denied (Oct. 31, 2018) (8:1x multiple).  \item  \textsuperscript{22}  As noted herein above, this Court’s prior panel’s strict application of the SOL reduced [...]’s damages by over $23 million, including a reduction in the amount of $3,133,028, representing his 25% share of partnership funds purloined by the [...] prior to October 1, 2003.  \end{itemize} damages “should be loud enough to be heard, [as the] “wrongdoer must feel the sting of an appropriately sized punitive damage penalty. ”  Id. at 219-20.  POINT II
[brief] Secondly, it was proper for the court not to instruct the jurors on second-degree robbery.  Both defendant’s and codefendant’s counsel below specifically stated they were not seeking a lesser-included charge for second-degree robbery to be included, and the trial court agreed.  (6T 155:24-156:6).  “A trial court's decision to charge on a lesser-included offense is governed by N.J.S.A. 2C:1–8(e). ”  State v. Alexander, 233 N.J. 132, 142 (2018).  The trial court cannot charge a jury on an included offense unless a rational basis exists for a verdict convicting the defendant of the included offense.  Ibid. (citing N.J.S.A. 2C:1–8(e)).  The New Jersey Supreme Court has explained, “‘whether the lesser offense is strictly ‘included’ in the greater offense ... is less important ... than whether the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser.
[brief] 2  Respondents attempt to argue their position regarding the case in chief, which is inappropriate in the Respondents’ Statement of Procedural History and Statement of Facts, and also irrelevant to the resolution of this Appeal.  3  PPa refers to Petitioners’ Appendix.  4  RB refers to Respondents’ Appellate Brief.  5  Pa refers to Respondents’ Appendix.  On or about November 14, 2023, [...] filed a Notice of Appearance in the matter.
[brief] Through its “secondary gain” analysis, it appears the Sentencing Court was opining that because [...] could reasonably anticipate a benefit from behaving well in prison and participating in programming, it could not view his prison record and program participation as evidence that he was not likely to commit another offense or that he did not need to be deterred.  Simply put, this use of the term “secondary gain” appears nowhere in any scientific or criminal justice literature.  Furthermore, such an assertion flies in the face of the aforementioned recognition by the Parole Board, the Supreme Court, and this Court that participation in institutional programming and an infraction-free record support a finding that an inmate is not likely to commit another offense.  Thus, the Sentencing Court’s use of the term “secondary gain” was baseless, “impermissible speculation”—not “competent evidence.
[brief] (15T 149-6 to 11)  Police Officer [...] testified that on February 2, 2017, at 1:29 p.m., almost two years before [...] died, defendant’s mother [...] reported [...] “missing,” and that [...] was eventually located at the mental hospital in Elizabeth four days later.  (17T 157-23 to 159-8; 17T 170-21 to 171-1)  When Wertheim went to the [...]’ home while [...] was missing, [...] allowed Wertheim to look through [...]’ bedroom and Wertheim noticed a backpack, laptop, and camera in plain view; the items were not hidden.
[brief] In his letter to the Court of 2/7/2022 (DA445) Appellant cited Probation’s improper re-institution of SSA garnishment (DA446).  Appellant’s letter of 5/7/2022 (DA450) to Probation cited improper garnishment of SSA benefits in violation of the Court’s Order of 4/4/2022.  Appellant’s letter of 5/11/2022 (DA453) cited over $6,000 of continued improper garnishment of SSA benefits and violation of the Order of 4/4/2022.  Appellant’s letter of 6/2/2022 (DA456) cited numerous Probation account errors and the failure of Probation’s 3/17/2022 “accounting” to acknowledge $54,500 in payments made by Appellant in 1998-1999.  Appellant’s letters of 6/6/2022 (DA459), 6/13/2022 (DA462), 6/27/2022 (DA465) and 7/21/2022 (DA468) likewise cite continued improper garnishment of income and SSA benefits in violation of the Order of 4/4/2022 under an erroneous NJ support account number which was not Appellant’s.  No response was received from Probation or the Court.
[brief] The OAG also claims that [...] definitely viewed the footage at the scene.  What [...]'s actual testimony is at 1T80-25 to 1T81-3:  Q.  * * *  Now, when you responded to the scene, did you review the videos at the scene?  A. Maybe.  Q.  Before downloading?  A.  Before downloading? No.  At some point thereafter, [...] reviewed only an unknown part of the video:  Q.  So, you reviewed the videos, correct?  A.  Part of it, yes.  (1T82-7 to 1T82-8)  As for the record supplementation at OAGb6, the prosecutor repeatedly advised the jurors that [...] was employed by the bodega where the shooting occurred (1T23-7 to 1T24-2; 2T69-14 to 2T69-16), and where the video footage was taken (1T75-1 to 1T75-9; 1T76-14 to 1T76-15).  The video does not show the actual shooting even if it shows [...].  Which is why the supposedly "[i]naccurate" (1T81-18) date/time stamp is problematic.  **REPLY TO AMICI LEGAL ARGUMENT**
[brief] A44 (the filing of the Answer reinstated Defendant [...]’s Answer, which had been stricken on April 14, 2024).  On October 4, 2023, Plaintiffs again filed a motion to strike Defendant [...]’s Answers and Defenses for failure to comply with the October 7, 2022 Order.  On October 20, 2023, during argument, the Court scheduled a Case Management Conference for November 8, 2023 to discuss all purportedly outstanding discovery responses from Defendants [...] and [...].
[brief] These schedules, P-48 ([...]) and P-50 ([...]) in evidence, were referred to as “Exhibit S” during the trial and were the factual predicate for the Plaintiffs’ claims against defendants.  25T84-13 to -20.  At 6:57 p.m. on June 25, 2014, a few hours after the parties created P-50, [...] emailed [...] appraisals for several of [...]’s properties.
[brief] 10  Campbell v. New Jersey Racing Comm’n, 169 N.J. 579 (2001) .............................................................................  9-10  Cardinale v. [...], 458 N.J. Super. 260 (App. Div. 2019) ..............................................7-8, 12-15, 19 Diaz v. Board of Trustees  Police and Firemen’s Retirement System, A-3619-21, Unpub. (App Div. 11/21/23)  ...........................................20  Gerba v. Bd. Of Trs., PERS, 83 N.J. 174 (1980)  ............................................................................. 10, 9  In re Adoption of N.J.A.C. 17:1-6.4, 454 N.J. Super. 386 (App. Div. 2018)  ..............................................  16-17  M.R. v. Board of Trustees, PFRS, 2020 N.J. Super. Unpub. LEXIS 615 (App Div. April 6, 2020)  ............  8, 12-16  Moran v. [...], 438 N.J. Super 346 (App. Div. 2014)  ..................................................  20  Mount v. Bd. of Trs., P.E.R.S., 133 N.J. Super. 72 (App.Div.1975) .......................................................  10  Richardson v. [...], 192 N. J. 189 (2007) ............................................................................. 20 Russo v. Bd. Of Trs., Police & Firemen’s Ret. Sys., 206 N.J. 14 (2011) ............................................................................. 10 Smith v. Dep’t of Treasury, Div. of Pensions & Benefits, 390 N.J. Super. 209 (App. Div. 2007) .................................................. 10 St. Vincent’s Hosp. v. Finley 154 N.J. Super. 24 (App. Div. 1977) .................................................. 11 State Statutes and Rules N.J.A.C. 17:1-6.4 .............................................................................. 3, 8, 16, 17, 19, 20 N.J. Court Rules, R2:6-1(a)(1) ................................................................. 1 N.J.S.A. 43:16A-6 .................................................................................. 16 N.J.S.A. 43:16A-8 .................................................................................. 3, 6, 7, 9, 12-16, 19, 20 INTRODUCTION Petitioner-Appellant [...], a former police officer with the [...] (“Paterson”), appeals from the Final Administrative Decision of Respondent the [...] (“the Board”), which denied his request to apply for accidental disability retirement benefits (“AD”) (PA152-PA155).
[brief] While our primary brief did erroneously refer to [...] as one of the four, the intended reference was to [...], a founding member of the firm with more experience than [...] and a higher billing rate ($725).  (Da24 at ¶¶72, 75; Da233).  Founding partner [...] (336.9 hours), partners [...] (1,266) and [...] (2,583.6) and, firm chairman [...] (958.2) collectively account for 93.8% of the total 5,485.1 hours sought.  (Da107; Da153).  \(^7\)  Plaintiffs’ brief cites to Da20 to claim, “based on filings in [...]’s divorce proceedings, [...] incurred more than $2 million to the [...] and [...] since their retention in 2018/2019” (Pb 24); but Da20 contains only a line in Plaintiff’s counsel’s certification that says the same thing.  The “filings” and “disclosures” referred to in the brief and certification were not attached, so the claim cannot even be evaluated.
[brief] See *Taddei v. State Farm Indem. Co.*, 401 N.J. Super. 449, 459 (App. Div. 2008); *Malick v. Seaview Lincoln Mercury*, 398 N.J. Super. 182 (App. Div. 2008) (the verdict was molded in accordance with the high-low agreement).  In general, a jury verdict should be transformed into a judgment when the Plaintiff can recover only a “sum certain. ”  See *Ciechanowski v. New Jersey Mfrs. Ins. Co.*, 2009 N.J. Super. Unpub. LEXIS 2045, *14-15.  Lastly, it is not the Appeellant who incorrectly asserts that Appealle “agrees” that the Bankruptcy Court correctly applied “judicial estoppel. ”
[brief] In *Latteri v. Mayer*, 2018 U.S. Dist. LEXIS 85926, at *6* (D.N.J. May 22, 2018) (Pa82), the District Court denied defendant debt collector’s motion to dismiss the Complaint wherein plaintiff alleged FDCPA violations based on defendant’s attempts to collect an alleged debt while unlicensed as a consumer lender under the FDCPA.
[brief] [...] Paid The Authority Approximately $300,000 Annually To Manage And Operate The Project Garage (5) 5T; June 29, 2022 (Bench Trial Decision); (6) 6T; March 12, 2024 (Bench Trial Decision).  Although [...] did not receive any revenue from the Project Garage, it paid to build the facility and covered all operating expenses.  The Redevelopment Agreement required [...] to pay [...] an Operating Fee of $24,000, in monthly installment payments, plus $75 per parking space in excess of 300 spaces for managing the garage.  Da108 (§ 8.5(b)).  That Operating Fee escalated each year, benchmarked to the consumer price index.  Id.  To put this in context, the Project Garage contained 657 spaces and, as such, [...] was required to—and did—pay [...] an annual Operating Fee of $50,775, which was adjusted for inflation each year.  Pa418-419.  In addition to the being required to pay the Operating Fee, [...] was also responsible for paying “all direct payroll and benefits of Authority personnel and all other direct costs and expenses associated with the operation and maintenance of the Project Garage, including, but not limited to, insurance and security costs. ”  D108-109 (§ 8.5(b)).  On average [...] paid [...] $300,000 annually relating to the operations of the Project Garage.  C.
[brief] In that case, a board member was accused of surrendering her independent judgment “by contributing money to a GoFundMe page . . . in support of full day kindergarten, visiting a fundraising booth . . . to collect donations in support of full day kindergarten, and by being photographed with members of a Facebook group named ‘[...].’”  *Id.* at 2.  The Commission granted the respondent’s motion to dismiss the complaint, determining that merely providing evidence that the respondent was a proponent and supporter of full day kindergarten was not sufficient to demonstrate an ethics violation.
[brief] The Board also contrasted [...]’s computer-generated renderings, which the Board found not to be probative, with the pre-development onsite sound studies and computer modeling done by Plaintiffs’ sound expert, [...], which is regularly compared to post development sound studies to confirm actual compliance with sound regulations and to confirm the reliability of the modeling.  Ja029.  In sum, the Board’s factual findings concerning the testimony and evidence presented by each of the key expert and fact witnesses whose testimony was relevant to gauging the intensity and visual impact of the proposed 50 ft. tall warehouses are amply supported by the record.  The Board’s findings with regard to the credibility of these witnesses, the weight to be given to their testimony and evidence, and the conclusions to be drawn from their testimony and evidence (including most significantly that the proposed taller warehouses would be more intense uses than warehouses of conforming heights) are reasonable.