ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Cf: Lisa Pesci v. [...], A-0952-23 (App. Div. Sept 20, 2024) (Pra107) (slip op at p. 10-11) (“[A] municipality may not enter into a contract absent compliance with N.J.S.A.40A:4-57.  The statute requires a municipality to appropriate money for municipal expenditures associated with specific contractual obligations.  The statute expressly provides “[a]ny contract made in violation hereof shall be null and void.  . . .”)  Here, the trial court erroneously granted defendants global summary judgment.
[brief] “[O]n remand[,] the trial court should qualitatively evaluate the aggravating and mitigating factors, explaining that evaluation on the record in sufficient detail to permit appellate review. ”  Towey, supra, 114 N.J. at 84.  The robbery and attempted shoplifting convictions are affirmed.  The third-degree shoplifting conviction is vacated and the matter is remanded for entry of judgment of conviction for fourth-degree shoplifting and resentencing on all counts.  We do not retain jurisdiction.
[directive] Standardized Recordkeeping and information Sharing.  So as to improve recordkeeping and access to information on delinquency and juvenile offenders, a Juvenile Records and Information Working Group shall be established which shall consist of representatives from the Division of Criminal Justice, Division of State Police, Association of Chiefs of Police, County Prosecutors Association and the Juvenile Delinquency Commission.  The Juvenile Records and Information Working Group shall develop recommendations to the Attorney General regarding reasonable standardized law enforcement data collection and reporting procedures, recordkeeping practices and information sharing procedures, including recommendations concerning the development of a centralized repository of law enforcement information relating to juvenile matters, as authorized by the Code of Juvenile Justice.  The Working Group's recommendations to the Attorney General shall take into account and seek to minimize any additional administrative burdens upon law enforcement agencies and officers.
[directive] a.)  In the case of inmates confined in State correctional facilities, the Department should forward notice of the projected expiration date within thirty (30) days in advance of said date.  b.)  In the cases of State inmates confined in county jail facilities, the Department should forward notice of the projected expiration date within three (3) days of being notified by county jail staff of the expiration date.  The State Department of Corrections should, in the cases of inmates committed to the custody of the Department of Corrections, notify the appropriate County Prosecutor's Office of the intended release from custody of an inmate for any reason other than parole.  Notice should be provided prior to release of the inmate.  A copy of said notice should be provided to the State Parole Board.
[brief] (where both the trial court and Appellate Division rejects the argument that a homeowner in a private housing community was not regulated by amendments to the declarations of covenants adopted after they took title and instead determined that the reasonableness test would be applied to these amendments).  Unlike our case, *Cape May Harbor* pertains to an amendment to a duly recorded Declaration of Covenants and Restrictions (Declaration).  The Declaration, executed by the initial developer of the community, was filed in the Cape May County Clerk's office in 1995.  *Id.* at 61.  *[...]* and her husband purchased a vacant lot in the community in June 2000.  In its original form, the Declaration contemplated the leasing of homes and boat slips and the covenants imposed certain restrictions on leasing.  *Id.* at 62.  By its terms, the Declaration could be amended only by a vote of at least 67% of all members of the Association.  *Id.* at 63.  By the summer of 2009, *[...]* asked the association if she could lease her home for the summer season on a weekly basis.  This prompted the association to meet and ultimately amend the declaration to prohibit seasonal leasing in September 2009.  *Id.* at 63.  The Court found that the amendment did not constitute an impermissible restriction on the alienation of a fundamental property right, satisfied the test of reasonableness, and was enforceable against the aggrieved homeowner.  Because these dedications were duly recorded prior to purchase and they provided for amendments with notice and 67% approval, the court analyzed the case based upon a “reasonableness standard.
[brief] The Appellate Division applies a *de novo* standard of review on appeals from the trial court’s dismissal of an action for failure to state a claim upon which relief can be granted.  See *Stop & Shop Supermarkets Co. v. Cty. of Bergen*, 450 N.J. Super. 286, 290 (App. Div. 2017).  The decision to dismiss or stay a second-filed action on the basis of comity generally lies within the trial court’s discretion.  *Sensient Colors, Inc. v. Allstate*, 193 N.J. 373, 390 (2008).  In determining whether or not the trial court has abused that discretion, the reviewing court may consider, *inter alia*, whether the trial court considered “all relevant factors” or rested its decision on “irrelevant or inappropriate factors. ”  *Flagg v. Essex Cnty. Prosecutor*, 171 N.J. 561, 571 (2002).  Moreover, it is “well-settled that appeals are taken from orders and judgments and not from opinions, oral decisions, informal written decisions, or reasons given for the ultimate conclusion. ”  *Do-Wop Corp v. City of Rahway*, 168 N.J. 191, 199 (2001).  **LEGAL ARGUMENT**
[brief] The Eleventh Circuit’s split *en banc* decision concluded there was no subject matter jurisdiction but did not undermine the panel decisions that the complaint stated a claim for violation of § 1692c(b).  *Hunstein v. Preferred Collection & Mgmt. Servs.*, 48 F.4th 1236 (11th Cir. 2022).  Where a decision is vacated on other grounds, its undisturbed decision remains as precedential authority.
[brief] (1T18-12 to 14; 1T19-8 to 9).  Defendant leaned onto the frame and then leaned through the window with at least one arm for a few seconds.  (1T19-8 to 9; 1T59-10 to 21).  After a short conversation, defendant walked away and got back into his own vehicle and drove to the front of the store and entered the store with his wife.
[brief] | | | Lautek Corp. v. Image Bus. Sys. Corp., | 1, 2, 3 | | 276 N.J. Super. 531 (App. Div. 1994) | | | Meshinsky v. Nichols Yacht Sales Inc., | 4 | | 110 N.J. 464 (1988)  | | | Rova Farms Resort, Inc. v. Inv’rs Ins. Co., | 1, 2, 3, 4 | | 65 N.J. 474 (1974)  | | ## Rules and Other Authorities: | Rule | Page | |----------------------------------------------------------------------|------| | R. 4:42-11 | 1, 2, 4, 5 | ARGUMENT ON REPLY
[brief] The stringent oversight regulation requires financial security bonds, retention or employment of an LSRP, and an environmental plan for remediation.  N.J.S.A. 58:10C-27.  Defendants continue with the economic and regulatory burdens of the property while Plaintiff – given the option to close – instead gambled to see if the trial judge’s decision will be overturned.  While we recognize Plaintiff’s right to appeal, its failure to apply for a stay of the remedy ordered acts to benefit Plaintiff while economically and legally harming Defendants.
[brief] Waiver is a fact-sensitive inquiry.  In *Cole v. Jersey City Medical Center*, our Supreme Court cited timeliness, defendant’s participation in the proceedings and prejudice as factors to be determined in the waiver analysis.  215 N.J. 265 (2013), citing the Third Circuit decision in *Hoxworth v. Blinder, Robinson & Co.*, 980 F.2d 912 (3d Cir. 1992).  An additional consideration required by *Cole* is whether the delay is part of the party’s litigation strategy.  Absent efforts to assert a defense, the plaintiffs have not been fairly apprised of [...]’s defenses to this action.  *White v. Karlson*, 354 N.J.Super. 284 (App. Div. 2002).  Here, [...] has pursued both arbitration and litigation.  In actuality, it is not arbitration, per se, that [...] seeks.  [...] has only doggedly pursued expensive, third-party arbitration through [...] with its intended finality, waivers and preclusion of court remedies.  [...] refused to participate in and derailed arbitration pursuant to R. 4:21A-1.  (Dr86)  It has had it both since the beginning of this litigation.  It continues to thumb its nose at the Court Rules with no consequences whatsoever.  It has prejudiced the Plaintiffs, defined in this context as “inherent unfairness – in terms of delay, expense or damage to a party’s legal position. ”  *Cole* at 282.  [...] has inflicted delay, unnecessary expenses and diverted the focus of this litigation from the continuing losses sustained by Plaintiffs to its unconscionable Contract.
[brief] He explains his methodology in detail at paragraphs 25 through 33 of his report.  Pa707-708.  He concludes:  “Thus, in my professional opinion, for the reasons set forth herein, the only material financial consequence of this PILOT agreement is to cause a substantial cost-shift of the regional school funding burden away from [...] and on to the property taxpayers of [...] and [...].  The PILOT agreement will have no material impact (positive or negative) on the financial feasibility of the Project. ”  Pa707, par 34.
[brief] Exhibit 2, Exhibit A to Report of [...], undated, filed May 31, 2018  Exhibit 2, Exhibit B to Report of [...], undated, filed May 31, 2018  Exhibit 2, Exhibit C to Report of [...], undated, filed May 31, 2018  Exhibit 2, Exhibit D to Report of [...], undated, filed May 31, 2018  Exhibit 2, Exhibit E to Report of [...], undated, filed May 31, 2018  Exhibit 2, Exhibit F to Report of [...], undated, filed May 31, 2018  Exhibit 2, Exhibit G to Report of [...], undated, filed May 31, 2018  Exhibit 2, Exhibit H to Report of [...], undated, filed May 31, 2018  Exhibit 2, Exhibit I to Report of [...], undated, filed May 31, 2018  Exhibit 2, Exhibit J to Report of [...], undated, filed May 31, 2018  Exhibit 2, Exhibit K to Report of [...], undated, filed May 31, 2018  Exhibit 2, Exhibit L to Report of [...], undated, filed May 31, 2018  Exhibit 2, Exhibit M to Report of [...], undated, filed May 31, 2018  Exhibit 2, Exhibit N to Report of [...], undated, filed May 31, 2018  Exhibit 3, Report of Examination of [...], P.E., dated January 18, 2018, filed May 31, 2018 (omitted here – see 289a)
[brief] That constitutes a ministerial act.  By law, “a ministerial duty is one that ‘is absolutely certain and imperative, involving merely the execution of a set task, and when the law which imposes it prescribes and defines the time, mode, and occasion of its performance with such certainty that nothing remains for judgment or discretion. ’”  Fuhrman v. Mailander, 466 N.J. Super. 572, 592 (App. Div. 2021) (quoting Vas v. Roberts, 418 N.J. Super. 509, 522 (App. Div. 2011)).
[directive] N.J.S.A.  Specifically, 2C:58-23(I) provides:  (1)  A petition for a temporary extreme risk protective order filed against a law shall be filed enforcement officer the law enforcement agency which the in in officer employed.  The law enforcement officer or employee receiving the is of petition shall advise the petitioner the procedure for completing and signing a petition.  of (2)  Upon receipt the petition, the law enforcement officer's employer shall immediately initiate internal affairs investigation.  an of (3)  The disposition the internal affairs investigation shall immediately be whether served upon the county prosecutor who shall make a determination to refer the matter to the courts.  if Attached the petition form you want to file a petition for an extreme risk protective order is against a law enforcement officer.  To file the petition, you must complete the form and provide it to the law enforcement agency where the law enforcement officer employed.  If you have is any questions, you can contact that law enforcement agency or the county prosecutor's office.
[brief] [...] and [...] next claim that [...]’s settlement of the [...] litigation was a voluntary payment, so [...] cannot recover its indemnity payment from [...] and [...] even if they were responsible to pay under the CCIP Policy.  [...] Db49.  [...]’s claim is supported by principles of conventional subrogation, equitable subrogation, and public policy.  [...]’s and [...]’ Policies contained exclusion endorsements for wrap-up insurance programs.  As a result, although [...] and [...] believed their wrap-up exclusion applied, [...] and [...] proceeded prudently in an abundance of caution to protect their insured, [...], through a defense and indemnification of the [...] litigation, while preserving their rights at every turn to hold [...] and [...] responsible for such defense and indemnification.  The settlement agreement and release from the [...] litigation contained references to [...]’ and [...]’s preservation of their claims.  In contrast, [...] and [...] improperly denied coverage and thus required [...] to proceed on its own.  New Jersey law is clear that, when one insurer pays an obligation that a second insurer should have paid, the first insurer has a legal right to recover those payments from the second insurer under principles of conventional and/or equitable subrogation.
[brief] ”  “The term ‘approximate’ is not defined in the statute.  Thus, we look to the dictionary for a definition.  The dictionary defines ‘approximate’ as ‘nearly correct or exact: close in value or amount but not precise. ’”  Wells Fargo Bank, N. A. v. Young, 2019 WL 1568090, at *2 (App. Div. Mar. 20, 2019), Pa48 (quoting Approximate, Merrian Website Online Dictionary (last visited April 1, 2019).
[brief] In that “builder's remedy” lawsuit, the court recognized that the designation of a Special Master was a mechanism utilized in the specific context of Mt. Laurel lawsuit where a municipality was found to have failed to comply with its fair share housing obligations under the Mount Laurel doctrine.  Cranford supra 445 N.J.Super. at 232-233.  In Cranford, the Appellate Division rejected the municipal entities’ arguments that the trial court abused its discretion in appointing a special hearing officer.  The Court found that the Township had already agreed to the same process in a prior builder’s remedy settlement; there was no objection to the appointment of the special hearing officer; that the appointment itself was authorized under Mount Laurel II; the appointment of the special hearing officer was warranted by the Township’s “record of obstructing affordable housing projects and the planning board’s past hostility to a much more limited plan; and the delay caused by the Township in refusing to grant needed permits for the developers’ project.
[brief] More bewildering is Respondent’s argument that there is no harm because [...]’s notes were produced prior to trial.  This argument completely undermines our broad discovery Rules and the State’s ongoing Brady obligations.  If this Court was to adopt this line of reasoning it would in essence allow the State to withhold evidence that is favorable to a defendant’s pre-trial motions so long as they provide the favorable evidence prior to trial and after the motions have been decided.
[brief] On January 17, 2024, Plaintiff moved to compel (the “Motion to Compel”) the German Defendants and [...] to produce [...] for a deposition.  [...] opposed the Motion to Compel, pointing out that (i) [...] already produced a corporate representative ([...]) in response to Plaintiff’s October 30, 2023 notice of deposition, (ii)  [...] also produced defendant [...], a director of [...], for a deposition concerning the same topics on which Plaintiff seeks to depose [...], and (iii) [...] does not have control over [...].  March 22, 2024 Transcript at 15:6-16:19.  --- 3  The transcript of the March 22, 2024 hearing before the Honorable [...] (the “March 22 Transcript”) was filed by Plaintiff via eCourts on May 15, 2024 in the matter bearing Docket No. [...], [...].  On March 25, 2024, the trial court issued a written Order denying Plaintiff’s Motion to Compel (the “March 25 Order”) for the reasons set forth in the trial court’s decision on the record on March 22, 2024.
[brief] The one-year deadline pursuant to this subsection is from “the date of the denial” of the PCR petition.  This rule provides, “Notwithstanding any other provision ins this rule, no second…petition shall be filed more than one year after…the date of the denial of the first … application for post-conviction relief where ineffective assistance of counsel that represented the defendant on the first … application for post-conviction relief is being alleged. ”  *N.J. Court Rule* 3:22-12(a)(2)(C).  The language of Rule 3:22-12 (a)(2)(C) is not specific to the denial by the trial court, as compared to the five-year deadline under R. 3:22-12(a)(1), which specifies five years from the date of the judgment of conviction that is being challenged.  *N.J. Court Rule*  3:22-12(a)(1).  A second or subsequent PCR petition, therefore, should not be considered “denied” until the conclusion of the appellate process, similar to the one-year deadline to file a habeas petition, which is one year from the denial by the State’s highest court.  See 28 U.S.C.S. § 2244(d)(1)(A)  “(1)  A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.  The limitation period shall run from the latest of— (A)the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;”)  It logically follows that the R. 3:22-12(a)(2)(C) one-year deadline be akin to the one-year deadline set forth in habeas rules, as the post-conviction process is New Jersey’s “analogue” to the habeas process.  See State v. Jones, 219 N.J. 298, 310 (2014) (“In New Jersey, PCR is our analogue to the federal writ of habeas corpus. ”) (citing State v. Afanador, 151 N.J. 41, 49 (1997); Preciose, 129 N.J. at 459).  Interpreting the rule to mean conclusion of appellate review also provides for judicial efficiency.  As it stands, many timely second PCRs are held in abeyance while the first PCR appeal remains active in the Appellate Division.  PCR courts are unsure how to proceed as the PCR appeal pends, with no rule guiding the proper handling of a second PCR.  This lack of guidance in the rules is especially difficult when the second PCR petition often contains overlapping issues to the first PCR appeal.  It is a waste of judicial resources to have separate concurrent matters in different courts about the same subject matter.  In fact, the Court Rules do not permit this same overlap to occur where a direct appeal is pending, and a first PCR is filed.  See R. 3:22-3 (a PCR petition may not be filed while a direct appeal is pending.)  This Court should reconsider its interpretation of Court Rule 3:22-12(a)(2)(C) to clarify that second and subsequent PCR petitions must be filed within one year of the conclusion of direct review of the first PCR, akin to federal habeas law.
[brief] TABLE OF AUTHORITIES ........................................................................................................ iii  PRELIMINARY STATEMENT .................................................................................................1  LEGAL ARGUMENT..................................................................................................................2  I.  This Court Should Apply Shaw and Hold that Defendants Are Not Exempt from Liability Under the CFA ......................................................2  A.  Shaw is the More Recent, Better Reasoned Opinion.............................2  II.  Under Shaw, Defendants are not Learned Professionals Entitled to Immunity From the CFA .................................................................5  III.  [...]’s Arguments on Failure to State a Claim Are Improperly Raised and Should Not be Considered ..................................................8  CONCLUSION ............................................................................................................................8
[brief] It is well-settled that on appeal deference is given to credibility findings.  “A reviewing court must accept the factual findings of a trial court that are ‘supported by sufficient credible evidence in the record. ’”  State v. Mohammed, 226 N.J. 71, 88 (2016) quoting State v. Gamble, 218 N.J. 412, 424 (2014).  In furtherance of this, “appellate courts should ‘not disturb the factual findings and legal conclusions of the trial judge’ unless convinced that those findings and conclusions were ‘so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.
[brief] Proof of a single incident of unconstitutional activity is not sufficient to impose liability under *Monell*, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policy maker.  Otherwise, the existence of an unconstitutional policy and its origin must be separately proved.  But where the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality and the causal connection between the policy and the constitutional deprivation.
[brief] The Traffic Stop Of [...] Was Not Supported By Reasonable And Articulable Suspicion That [...] Was Engaging In Criminal Activity.  The trial court also erred in ruling that the warrantless stop of [...]’s car was justified.  “Warrantless seizures and searches are presumptively invalid as contrary to the United States and the New Jersey Constitutions. ”  State v. Pineiro, 181 N.J. 13, 19 (2004) (citing State v. Patino, 83 N.J. 1, 7 (1980)).  “[T]he State bears the burden of establishing that any such stop or search is justified by one of the well-delineated exceptions to the warrant requirement. ”  State v. Shaw, 213 N.J. 398, 409 (2012) (internal quotation marks and citation omitted).  One exception is the investigatory stop of a motor vehicle.  State v. Alessi, 240 N.J. 501, 517-18 (2020).  To justify such a stop, “[t]he State must show the stop was ‘based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity. ’”  Id. at 518 (quoting State v. Mann, 203 N.J. 328, 338 (2010)).  Although the reasonable suspicion standard is not as demanding as that of probable cause, it is not satisfied by an officer’s “inarticulate hunches” that criminal activity may be afoot.  Alessi, 240 N.J. at 518 (internal quotation marks and citation omitted).  Rather, “[t]here must be ‘some objective manifestation that the suspect was or is involved in criminal activity. ”  *State v. Arthur*, 149 N.J. 1, 8 (1997) (quoting *State v. Thomas*, 110 N.J. 673, 678 (1988)).  The totality of the circumstances must be considered, and the court must “balance[] the State’s interest in effective law enforcement against the individual’s right to be protected from unwarranted and/or overbearing police intrusions. ”  *State v. Nyema*, 249 N.J. 509, 528 (2022) (quoting *State v. Privott*, 203 N.J. 16, 25-26 (2010)).  Here, police knew very little about [...] prior to stopping his car.
[brief] When the ALJ on an issue of both fact and law and statutory interpretation reverses an agency made up of mainly laymen this should intensify this Court’s scrutinization of this appeal and the reasons given for reversal of the agency’s decision.  This case as the ALJ indicates the Board failed to marshal facts in the record correctly and compounded their errors by misinterpreting case law and the statutes that are remedial which it governs over.  Appellant now seeks appellate review before this Court seeking basic fairness, justice, and protection as a member of the [...], and requests permission to file his meritorious application for retirement disability so it can be decided upon the merits.