ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Plaintiff and Appellant [...] (now [...]) (“Plaintiff”) and Defendant and Respondent [...]  (“Defendant”) were married in 1987 and divorced in 1998.  They have two children: [...] (“Edward, Jr.”), born in 1991; and [...] (“Emily”), born in 1994.  The parties' 1998 Judgment Of Divorce (Pa389) provided for joint legal custody of the children and granted plaintiff residential custody.  In relevant part, the JOD required defendant pay $180 per week in child support, and the parties equally share payment of the children's unreimbursed medical expenses.  The JOD also provided the parties “shall consult with each other” concerning where the children will go to college, 1  The procedural history and statement of facts were intentionally combined as they are inextricably intertwined.
[directive] Exceptions and exclusions.  Nothing in Sections II.A or II.B shall be construed to restrict, prohibit, or in any way prevent a state, county, or local law enforcement agency or official from:  1.  Enforcing the criminal laws of this state.  2.  Complying with all applicable federal, state, and local laws.  3.  Complying with a valid judicial warrant or other court order, or responding to any request authorized by a valid judicial warrant or other court order.2  4.  Participating with federal authorities in a joint law enforcement taskforce the primary purpose of which is unrelated to federal civil immigration enforcement.  5.  Requesting proof of identity from an individual during the course of an arrest or when legally justified during an investigative stop or detention.  6.  Asking an arrested individual for information necessary to complete the required fields of the LIVESCAN database (or other law enforcement  2  As noted earlier, a “judicial warrant” is one issued by a federal or state judge.  It is not the same as an immigration detainer (sometimes referred to as an ICE detainer) or an administrative warrant, both of which are currently issued not by judges but by federal immigration officers.
[brief] [41a ¶¶ 1–3].  The Defendants’ driveway runs southeasterly alone the line separating the parties’ properties as shown below:  [Excerpt from 234a].  At the time Defendants acquired their property, a railroad tie planter box blocked the northeast half of the rear of the driveway while the southeast half of the rear of the driveway was completely open, as depicted in the photograph below.  [Excerpt from 350a; see 206a at 27:5–13 (confirming D-15 (350a) depicted the appearance of the driveway at the time Defendants purchased their property)].  The Chancery Division acknowledged that the planter “was not fully covering the whole area. ”  [T46:24–25].  As long as Defendants’ driveway remained in that condition, surface water that accumulated on the driveway flowed southeasterly along Defendants’ property and through their backyard until it reached Canoe Brook, which runs across the east side of both parties’ properties.  [340a ¶ 29; 140a at 63:19–22].  Defendant [...] admitted that, before modifying the driveway, he had observed water flow “[f]rom the top of the street down to the back of the driveway” and “go towards the back of [his] property. ”  [213a at 55:2–19].  In or around April 2021, Defendants had their driveway repaved, the planter removed, and a Belgium block border curb installed around the perimeter of the driveway with gaps at each rear corner.  [48a ¶ 42; T45:11–19].  The photograph below depicts the curb at the rear of Defendants’ driveway following these modifications:  [Excerpt from 347a; 207a at 32:23–33:1 (confirming this photograph depicts Defendants’ driveway after it was paved)].  After Defendants renovated their driveway and installed the gapped curb, Plaintiff personally witnessed rainwater flow from Defendants’ front yard and driveway, through the gap in the curb at the northeast rear corner of the driveway, and onto Plaintiff’s property.  [339a–340a (¶¶ 20–28), 147a–148a (93:14–94:4, 94:22–95:9)].  During a hurricane that hit the area, Plaintiff stepped outside and personally observed a stream of water flow from Defendants’ property through that gap onto his property.  [140a at 62:16–63:18].  The parties do not dispute that Defendants’ driveway slopes toward the gap in the curb at the rear northeast corner, as reflected in the maps below taken from the report of Defendants’ expert [...].  The figure on the left shows the direction of downward slope on a survey as the properties stood before Defendants’ modifications to the driveway, and the figure on the right shows the direction of downward slope on a survey as the properties stood after Defendant’s modification to the driveway.  [Excerpt from 285a].  [Excerpt from 287a].
[brief] | Case: | Page(s): | |----------------------------------------------------------------------|----------| | Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, Bureau of Homeowner Prot., New Home Warranty Program, | 5,6 | | 186 N.J. 5, 16 (2006) | | | Bowden v. Bayside State Prison, | 6 | | 268 N.J. Super. 301, 304 (App. Div. 1993) | | | Campbell v. Dep't of Civil Serv., | 6 | | 39 N.J. 556 (1963) | | | Competello v. LaBruno, | 15,16 | | 2005 WL 1637907 (D.N.J. July 12, 2005) | | | Greenwood v. State Police Training Ctr., | 6 | | 127 N.J. 500 (1992) | | | In re Camden County Police Dept. Pilot Program, | 9 | | 2014 WL 3928418 (N.J. Super. Ct. App. Div. Aug. 13, 2014) | | | In re Carter, | 6 | | 191 N.J. 474 (2007) | | | In re Davis, | 12 | | 2007 WL 2262921 (N.J. Super. Ct. App. Div. Aug. 9, 2007) | | In Re Martinez, 403 N.J.Super. 58 (2008).........................................................8  In re Musick, 143 N.J. 206 (1996)..................................................................6  In re Peck, 2011 WL 242023 (N.J. Super. Ct. App. Div. Jan. 27, 2011)..............10,11  Matter of Acosta, 2021 WL 1344026 (N.J. Super. Ct. App. Div. Apr. 12, 2021).............6  Mazza v. Bd. of Trs., 143 N.J. 22 (1995)....................................................................6  Newark v. Natural Res. Council, 82 N.J. 530 (1980)....................................................................6  Statutes, Rules, and Other Authorities: Page(s): N.J.A.C. 4A:4-4.8........................................................................passim N.J.A.C. 4A:1-1.2........................................................................8  N.J.A.C. 4A:10-1.1....................................................................13,14,15,16  N.J.S.A. 11A:1.2.......................................................................9  TABLE OF RESPONDENT’S CERTIFIED APPENDIX  Competello v. LaBruno, 2005 WL 1637907 (D.N.J. July 12, 2005)…………………………………RA01  In re Camden County Police Dept. Pilot Program, 2014 WL 3928418 (N.J. Super. Ct. App. Div. Aug. 13, 2014)………………..RA17  In re Davis, 2007 WL 2262921 (N.J. Super. Ct. App. Div. Aug. 9, 2007)…………………..RA22  In re Peck, 2011 WL 242023 (N.J. Super. Ct. App. Div. Jan. 27, 2011)…………………..RA27  Matter of Acosta, 2021 WL 1344026 (N.J. Super. Ct. App. Div. Apr. 12, 2021)…………………..RA32  PRELIMINARY STATEMENT
[brief] Prop. Inv’rs, | | | 175 N.J. 110 (2003) | 9, 10, 16, 18 | | Belmont Condo. Ass’n, Inc. v. Geibel, | | | 432 N.J. Super. 52 (App. Div. 2013) | 24 | | Camp, Dresser & McKee, Inc. v. Paul N. Howard Co., | | | 853 So. 2d 1072 (Fla. Dist. Ct. App. 2003) | 15 | | Capparelli v. Lopatin, | | | 459 N.J. Super. 584 (App. Div. 2019) | 8 | | Englert v. The Home Depot, | | | 389 N.J. Super. 44 (2006) | 15, 16, 17, 19 | | Estate of D’Avila ex rel. D’Avila v. Hugo Neu Schnitzer E., | Passim | | 442 N.J. Super. 80 (App. Div. 2015) | | | Excelsior Ins. Co. v. Selective Ins. Co. of Am., | | | 696 F.
[brief] 1.  The regulated water does not possess a discernible channel; 2.  **The channel does not contain fishery resources;**  3.  The channel is manmade (not including any water that historically possessed a naturally-occurring, discernible channel, which has been modified by humans); 4.  The channel is fully lined with manmade impervious material such as cement or concrete; 5.  The channel is less than 10 feet in width as measured between the top of bank of each side of the channel; **or** 6.  Spanning the channel under (f) above would not be practicable due to one or more of the following physical constraints: i. Unstable substrate, which would likely undermine any proposed footing within or adjacent to the channel; ii. Irregular channel configuration; iii. Anticipated adverse hydraulic impact to the channel; or iv.  Anticipated adverse impacts to offsite flooding, the environment, or public safety.  [N.J.A.C. 7:13-12.7 (emphasis added). ]  Appellant seeks to mislead the Court by arguing that a showing under N.J.A.C. 7:13-12.7(g)(6) is required.  However, as set forth above, an applicant only needs to demonstrate **one or more** of the conditions listed at (g)1 through 6.
[brief] The Instant Lawsuit**  More than five (5) years later, on September 3, 2021, Plaintiff filed the instant lawsuit (hereinafter referred to as the “Instant Lawsuit”), against the [...] and other members of the Nutley school district, including Defendants [...] and [...], alleging she was subjected to acts of wrongdoing in retaliation for filing the First Lawsuit.  215a, ¶ 31.  Plaintiff’s original Complaint (the “Original Complaint”) in the Instant Lawsuit asserted twelve causes of action, five of which were asserted against Defendants [...] and [...].  25a, ¶¶ 211-280.  Based on the lack of any factual or legal basis for the claims asserted against Defendants [...] and [...], on November 5, 2021, Defendants [...] and [...] moved to dismiss the Instant Lawsuit for failure to state a claim.  188a.  All other defendants likewise moved to dismiss the Instant Lawsuit for failure to state a claim.  72a, 96a, 171a.  Shortly thereafter, on November 18, 2021, Plaintiff filed a First Amended Complaint (the “Amended Complaint”).  210a.  In doing so, Plaintiff withdrew four counts of her complaint, leaving a single cause of action against Defendants [...] (Count Three) and [...] (Count Five) for individual aider and abettor liability under the New Jersey Law Against Discrimination (“NJLAD”).  244a, ¶¶ 232-233; 245a-246a, ¶¶ 236-237.  The factual predicate in support of Plaintiff’s claims against Defendants [...] and [...] remained the same.  Defendants [...] and [...]’s motion to dismiss remained.  III.
[brief] [N.J.S.A. 2A:14-30.]  While New Jersey law permits tacking, whereby the adverse possessor may add the prior possessor’s period of occupancy onto their own in order to meet the statutory time period, the party seeking to avail tacking must demonstrate that both possessors satisfied the required elements.  Stump, supra, 314 N.J. Super. at 563 (holding tacking is only available when the party seeking to avail tacking demonstrates that both possessors satisfied the required elements).  [...] also has the burden of showing clear and positive proof that establishes “not only actual acts of ownership over the property in dispute but also a certain frequency in the performance of those acts, sufficient to amount, in the eyes of the law, to a continuity of [30 or 60 years.]”
[brief] (Pa0148.)  The SAM continued by stating that contaminants were --- \(^2\)  The SAM used the term “dumping” to refer to the release of pollutants at the Site.  This was another issue on which the SAM erred.  Pollutants were released over time from operations at the Site; they were not “dumped”. released at the Site “in two time frames, one from 1958 through 1964 only in AOC 16, and the balance, from 1966 through 1993 at many AOCs[.]” (Pa0148.)  The SAM further recognized that these “release[s] of hazardous material into the soil and groundwater” at the Site constituted the “occurrence” in this case, but that the “continuous migration of the contamination” into the groundwater constituted the “property damage” that he was charged with allocating across an allocation period.
[brief] [...] FAILED TO PROVIDE A STATEMENT AS TO THE OVERALL FAIRNESS OF MR. MANSO’S SENTENCE AS REQUIRED BY LAW.  The sentencing court failed to provide any statement or explanation of the overall fairness of the consecutive sentences as applied to [...].  As the law requires, and Torres made clear, whenever consecutive sentences are imposed the court must provide an explanation of the overall fairness of the sentence to the defendant.  Id. at 272.  This is done because an “explanation of the overall fairness provides a proper record for appellate review of the sentencing court’s discretion. ”  Id.  In [...]’s sentencing there was no discussion of the overall fairness of the sentence to [...].  Rather, the court only justified the imposition of consecutive sentences by reference to the existence of multiple victims.  But this does not address the fairness of the consecutive sentences to [...], who was, in effect being sentenced to life in prison.  Indeed, there was no discussion of the impact of the sentence on [...], who was in his early twenties at the time of the crimes at issue.  The fairness of the sentence to society does not address the overall fairness as required by Yarbough and Torres.  The state's argument that such overall fairness can be determined by the appellate review of the sentencing decision on direct appeal is incorrect.  This argument elides and misunderstands the requirements of Torres.  The point of the remand in Torres was that a determination as to overall fairness cannot be based on conjecture by a subsequent court.  Id. at 273.  Rather, it must be based on a review of the sentencing court's opinion as to overall fairness.  Id.  Further, as the opinion makes clear, the remedy for the lack of a statement as to overall fairness, is not for a reviewing court to craft its own statement of fairness.  Id.  Instead, the matter must be remanded for resentencing with the consideration of overall fairness addressed.  Id.  The reviewing court conceded that there was no statement as to overall fairness.  Accordingly, a remand is necessary for resentencing which addresses the overall fairness of the consecutive sentence.  This evaluation of overall fairness must take into account, not only the victims and need for deterrence, but also [...] himself.  This includes [...]'s young age at the time of the offenses, [...]’s extensive rehabilitation over his past twenty-five years of incarceration, during which he has been a model prisoner and positive role model for all those around him.  Because there was never a consideration of the overall fairness of [...]’s sentence [...] was denied his due process rights to be sentenced under a correct understanding of the law.  Accordingly, [...]’s sentence was imposed illegally and his matter must be remanded for resentencing.
[brief] Moreover, Hoboken’s assessment of the Unit, as testified to by [...], was based on the replacement “cost” method, and such assessment was reduced thirty percent (30%) due to [...]’s protected tenancy based upon [...]’s review of the property record card for the Unit and information from Hoboken’s assessor.  6T:20:9-21:13; 30:9-14; 33:20-24; 35:17-19; 40:17-22, 44:18, 54:20-23.  Notwithstanding [...]’s contrary statements, Hoboken’s assessment was not based upon the Unit being a condominium with no protected tenancy.  Further, in 2016, Hoboken’s equalization ratio was 74.18%, equating to an adjusted value of $545,430 for the Unit.  Ultimately, [...] did not calculate its equity in the Unit based upon either Hoboken’s equalized assessment ($545,430), nor the Unit’s appraised value ($622,500), and the Court did not adopt either.
[brief] State v. Schenkolewski, 301 N.J. Super. 115, 137 (App. Div.), certif. denied, 151 N.J. 77 (1997).  Because of the independence of the grand jury, courts should be reluctant to intervene in the indictment process.  State v. Hogan, 144 N.J. 216, 228 (1996).  While dismissal of an indictment is left to the discretion of the trial court, this discretion should be exercised only on “the clearest and plainest ground” and where the “insufficiency is palpable. ”  Id. at 228-29; State v. Graham, 284 N.J. Super. 413, 416 (App. Div. 1995), certif. denied, 144 N.J. 378 (1996); State v. Morrison, 188 N.J. 2, 12 (2006).  “[A] prosecutor enjoys broad discretion in presenting a matter to the grand jury.
[brief] 12  [...]’s discriminatory policy requiring [...] to only market to “Asian accounts” is indicative of this unequal bargaining power.  Pa122; Pa137-141.  [...]’s flippant remark that [...] “clearly do[es] not simply accede to [...] USA’s wishes” is particularly insulting in light of the decades of discriminatory policies, that [...] has imposed on [...].  Pb42.  Thus, to protect these businesses, *Passaic* requires more to ensure mutual assent and full understanding about waiving one’s rights to the courthouse, particularly when such rights are guaranteed by statute.  *See Garfinkel v. Morristown Obstetrics & Gynecology Assocs., P.A.*, 168 N.J. 124, 132 (2001) (“waiver of statutory rights must be clearly and unmistakably established”) (citations omitted).
[brief] [...] attempts to rescue his NJCRA claims against the State Defendants he sued in their official capacity by suggesting that those claims fit within the narrow window for claims for non-monetary relief that may be brought under *Ex parte Young*, 209 U.S. 123 (1908), or what [...] calls the “Officer Suit Fiction. ”  See (Pb32; Pb46; Pb63).  The attempt fails, based on well-established law.
[brief] The Strategic Decision to Depose Defendant Mazawey in the Lease Litigation Had Far Reaching Effects on His Defense in the Instant Action  Defendant [...] was deposed in the Lease Litigation on November 7, 2019, a year before Plaintiff undertook a lawsuit against Defendant Mazawey.  At this deposition, Defendant Mazawey was questioned extensively by both counsel for [...] and Plaintiff regarding his knowledge of the facts and events involving the lease negotiations between [...] and Plaintiff.  He was questioned about who he communicated with at the Plaintiff organization with respect to the negotiations and execution of the lease.  (Pa1054,T99:15-25).  There were in depth probative questions about the terms and requirements of the lease.  (Pa1058-Pa1060).  Plaintiff’s counsel could have obtained the same information which Defendant Mazawey was questioned about in his deposition from his own client.
[brief] On pages 46 – 51 of his deposition, see Kimm Cert., Pa2885-91, defendant [...] engages in the litigation equivalent of a “triple somersault” concerning the NDA signed by his agents for benefit of him and his companies, the [...].  He admits that NDA’s are routinely used to share proprietary information in the solar energy field; admits that he himself had prepared and used NDA’s; that he was a voluntary party to the NDA entered into with [...], and admits that the NDA was to be used in “offering to purchase the project at that time?”
[brief] (2T10-5 to 15).  At that time, [...] = Defendant’s brief  Da = Defendant’s appendix  1T = Transcript of Motion, October 27, 2015  2T = Transcript of Motion, December 23, 2015  3T = Transcript of Motion, August 24, 2018  4T = Transcript of Motion, June 24, 2019  5T = Transcript of Plea, May 12, 2020  6T = Transcript of Sentence, October 17, 2022
[brief] The Second Circuit explained:  [T]he FDCPA enlists the efforts of sophisticated consumers like [...] as “private attorneys general” to aid their less sophisticated counterparts, who are unlikely themselves to bring suit under the Act, but who are assumed by the Act to benefit from the deterrent effect of civil actions brought by others.  *[...] v. Healthcare Fin. Servs.*, 516 F.3d 85, 91 (2d Cir. 2008).  Hence, a consumer who received but did not read a misleading collection letter may recover statutory damages.
[brief] The PCR court also improperly engaged in credibility determinations concerning the certifications without any testimony from the witnesses, which is also contrary to Porter, supra.  The defendant’s certification, Verified PCR Petition supported by multiple certifications placed material issues of fact in dispute that trial counsel was paid to obtain the services of several experts, which he knowingly misrepresented to the defendant they would be called on his behalf for the trial.  [...], a licensed private investigator, provided a certification averring that he interviewed [...], a former employee of the [...].  Mr. McCullar stated that he worked for the [...] from 2016 to 2017 as the director of the hotel’s front office at the time.  Also, he did not recall being contacted to testify, provide documentation and/or to produce any tangible evidence such as surveillance videos relating to a legal matter in the State of New Jersey.  Mr. McCullar further advised that Mr. Rusin should contact the Human Services or Legal Compliance Team if any further assistance was needed.  Mr. Rusin established that after review of the PCR file, that trial counsel attempted to serve a subpoena on the [...], and that the proper Hilton Hotel to be served was the [...], [...], which was clearly on the receipt/invoice the defendant provided to trial counsel.
[brief] Courts cannot "write in an additional qualification which the Legislature pointedly omitted in drafting its own enactment," Craster v. Bd. of Comm'rs of Newark, 9 N.J. 225, 230 (1952), or "engage in conjecture or surmise which will circumvent the plain meaning of the act[.]"  In re Closing of Jamesburg High School, 83 N.J. 540, 548 (1980).  The court’s "duty is to construe and apply the statute as enacted."  Ibid.  A court should not "resort to extrinsic interpretative aids" when "the statutory language is clear and unambiguous, and susceptible to only one interpretation…"
[brief] In his PCR petition, though, defendant reframed his argument as one of ineffective assistance of counsel and rehashed his argument challenging the constitutionality of the warrant.  (Da126).  Since PCR petitions are not “an opportunity to relitigate matters already decided on the merits,” McQuaid, 147 N.J. at 483; Afanador, 151 N.J. at 50, the PCR court’s finding was correct and should not be disturbed on appeal.
[brief] There was no condition which rendered the Property “obsolescent,” “dilapidated,” or any other term used in the LRHL which was “detrimental to the safety, health, morals, or welfare of the community. ”  This was plainly demonstrated by [...], and the Planning Board record is completely devoid of any credible evidence to the contrary.  The [...] and related testimony at the hearing fell far short of meeting the substantial evidence standard.  For example, as outlined in the Roberts Memorandum, the [...] did not document any fire, building, or health code violations that would substantiate the Property’s alleged substandard conditions.  (Ja285).  Contrary to Malanga, the [...] lacks any substantial evidence demonstrating that the Property’s condition caused actual detriment to the community. (Ja105).  Merely enumerating the need for maintenance or repair of the remaining structures on the Property falls short of proving actual detriment.  This point was reinforced by Malanga, which clarified that “needed repair work does not necessarily establish actual harm. ”  253 N.J. at 322.  Moreover, the police calls and incidents cited in the [...] cannot be directly linked to the Property’s layout or condition.  (Ja287)  These shortfalls are detailed extensively in the Roberts Memorandum and were testified to by him at the February 7, 2024 hearing.  (Ja330).  When faced with this damning counter evidence, the Planning Board tellingly chose not to question [...] or to elicit rebuttal testimony from [...].  (Ja405).  Having failed to meet the evidentiary standard established by the New Jersey Supreme Court, Plaintiff is likely to succeed on its claim that Defendants’ adoption of the Condemnation Resolutions was arbitrary, capricious, and/or unreasonable, thereby invalidating [...]’s ability to condemn the Property.