ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Perhaps indicative of the immateriality and shortcomings of [...]’ arguments in opposition to [...]’s appeal, is [...]’s verbatim assertion of the arguments that failed in its motion for summary disposition.  Throughout this opposition brief, [...] asserts the same ineffective argument that was previously rejected - the jury’s finding that [...] is 100% at fault for the plaintiff’s injuries somehow precludes contractual indemnification.  Despite \(^1\) [...] briefly disputes a certain statement within the Procedural History section of [...]’s (“[...]”) brief of October 14, 2024: [...] states that [...] “argued against allowing [...] to participate at trial. ”  (TPDb7)  That is a mischaracterization of O.A Peterson’s position.  (See, Da460; 2T53:12-25, 2T54:1).  Rather, [...] was acknowledging an effect of the trial court’s conclusion that the indemnification provision between [...] and [...] was ambiguous.  already having been addressed, [...] will take this opportunity to demonstrate that, not only is [...]’ argument without merit, but it highlights [...]’ confusion of the basis of [...]’s appeal.  As [...] pointed out on numerous occasions throughout its Appellate Brief and responses to [...]’ Motion for Summary Disposition, the basis of [...]’s appeal is the Law Division’s erroneous ruling that the indemnification clause entered into by and between [...] and [...] was ambiguous.  Unfortunately, the Law Division’s ruling on ambiguity created a domino effect, one that essentially forced [...]’ dismissal from this case, leaving [...] as the sole party to which liability could have been apportioned by the jury.
[brief] [Pa67].  Plaintiff submitted an affidavit and photographs showing the location of Plaintiff’s fall and the condition of the area Plaintiff alleges to have fallen.  [Pa68].  In Plaintiff’s affidavit, Plaintiff declares the first two photographs “fairly and accurately depict the condition” where the incident occurred.  [Pa68].  The referenced photographs do not show a pothole but clearly show a crack in the pavement which was circled by Plaintiff.  [Pa68].  Moreover, Plaintiff avers the two photographs “accurately depict the general location where the incident occurred. ”  [Pa68].  Those photographs show Plaintiff pointing to an ostensibly smooth spot on the ground where no pothole, defect, nor condition of any kind is visible.  [Pa68].  At Plaintiff’s deposition, Plaintiff was presented with a screenshot of the area, as it was at the time of Plaintiff’s fall, previously identified in Plaintiff’s affidavit.
[directive] reporting any that provided to public, available the made be can data this how and when determining of victims.  the identities protect to anonymized be personal must data and Training Programs, Outreach Relations, Community VII. agencies— all enforcement law assault victims, sexual of needs better the serve  To local police Offices, and Prosecutor's County Justice, of Criminal Division including the assault sexual prosecuting investigating and for practices best on current departments—must stay what and crimes sexual assault to how report on public better the educate must also They cases.
[directive] c.  Undercover school operations should not necessarily be limited to schools falling within any particular region or demographic setting (i.e., e.g. rural, suburban, urban center, etc.,) or any particular district factoring group (i.e., a composite measure of socioeconomic status within a geographic area).  Rather, subject to the availability of resources, undercover school operations should be proposed and conducted in accordance with the provisions of this Executive Directive in any and all schools where the designated law enforcement and school officials determine that such operations would be beneficial.
[brief] Marioni v. Broadway, Inc., 374 N.J. Super. 588, 598-600 (App. Div. 2005).  The Chancery Division’s opinion fails to justify its determination and lacks several aspects of the analysis required by Marioni, supra.  As discussed supra, the Chancery Division applied, but failed to set forth, an alternative definition of “effectuate” that defied its plain and ordinary meaning.  Additionally, the Chancery Division’s opinion failed to explain how compelling severance would not be harsh or oppressive to the Township or leave Plaintiff without an adequate remedy as required by Marioni, supra.  Critically, the Chancery Division’s opinion also fails to account for the substantial benefit Plaintiff still received under the Agreement – the opportunity resign in good standing as a result of the Township agreeing to dismiss any disciplinary charges filed or contemplated alleging that Plaintiff was unfit for duty.  Unfortunately, Marioni, supra, is just the tip of the iceberg in demonstrating both that Plaintiff was not entitled to specific performance and the inadequacy of the Chancery Division’s opinion.
[brief] Use variances run with the land and relate to specific parcels of land—it does not matter that the cell tower only occupies a small portion of the Property.  As explained in the Cox treatise:  Assuming that a variance has been granted, and that the property owner has commenced utilization of the property in accordance with the terms of the variance granted, the property nonetheless may remain subject to certain limitations expressed or implied affecting its future use.  Where a d variance has been granted, for example, any future site plan or subdivision should generally be considered only by the zoning board of adjustment.  With both "c" and "d" variances, however, there is at least an implied condition in some cases that no substantial change will be made to the property without further application to the board which granted the variance and this is particularly so where a plot plan (not necessarily a formal site plan) was submitted to the board and the proposed layout was an important consideration in the grant of the variance.  Cox & Koenig, at § 28-4.1, p. 424 (emphasis added).  Plaintiffs propose a substantial change to the Property by swapping the agricultural farmland use that existed at the time the cell tower variance was approved with a warehouse development.  The warehouse use is subject to the Board’s review both as a second principal use at the Property and as it relates to the cell tower’s original variance approval.  Without d(1) use variance relief, Defendant Board could not approve Plaintiff’s application.  For this reason alone, the trial court’s decision to remand this matter back to the zoning board for an interpretation and use variance hearing (as needed) was correct and should be affirmed by the Court.
[brief] Here, however, requestor did not prevail because of his failure to request the “information” under Section 3b.  As discussed in Point I, infra, requestor only sought “records” and, thus, the municipal response fully conformed with OPRA.  The leading case of Mason v. Hoboken, 196 N.J. 51, 73 (2008) provides that in order to prevail, a litigant must establish that there is a causal nexus between an OPRA suit and the agency’s response.  Here, there is no causal nexus, nor has there been a finding that [...] or its records custodian violated OPRA.  Mason, supra at 78-79, held that a "fact-sensitive inquiry on a case-by-case basis, evaluating the reasonableness of, and motivations for, an agency's decisions" was required in determining whether to award counsel fees.  Review of the trial court's decision does not reveal any such analysis.  It ignored the distinction between the "records" requested and the "information" not sought. \(^3\)  It believed it was obligated to do so under the remand order of the Appellate Division.  (Da113-115).  However, the remand order gave the trial court wide discretion.  It did not hamstring the trial court in evaluating whether there was a violation of OPRA that established the causal nexus of Mason.  Indeed, without finding a violation, the order on reconsideration merely concluded that plaintiff had prevailed and was thus entitled to counsel fees.  (Da115).  --- \(^3\)  The trial court's original ruling acknowledged that distinction when it stated, "plaintiff did not seek information, only records.  The records custodian need not read anything into the request.  MAG Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J. Super. 534, 546 (App. Div. 2005)."  (Da66)  In Spectraserv, Inc. v. Middlesex County Utilities Authority, 416 N.J. Super. 565, 577-579 (App. Div. 2010), the court acknowledged that the rule awarding counsel fees applied, but only if a proper OPRA request had been made.  However, it held that Spectraserve’s OPRA requests were overly broad and generalized and therefore improper under OPRA, and that that was sufficient to deny the request for counsel fees, notwithstanding the ultimate production of approximately 150,000 documents.  See, also, N.J. Builders Ass’n. v. N.J. Council on Affordable Housing, 390 N.J. Super. 166, 179 (App. Div.); certif. denied, 190 N.J. 394 (2007).  Here, the OPRA request was improper in that it did not seek “information”.  The order to disclose the “information” did not come from the request, but rather on the remand order from the trial court.  Inasmuch as [...] complied with the OPRA request, any other relief did not originate from a valid OPRA request (i.e., to disclose the “information”).  Therefore, plaintiff failed to establish that its suit was the catalyst for the disclosure of the unrequested “information”.  Accordingly, the trial court’s award of counsel fees must, respectfully be reversed and the case dismissed.
[brief] Similar to Harleysville, which also adopted the Karlinski standard (or test), at the heart of this appeal is the policy’s “expected or intended” injury exclusion.  In Harleysville, the court was forced to decide a single claim whether the injury was expected or intended; whereas, in the instant case there were multiple occurrences or potential claims and the court failed to consider each occurrence separately when determining the insurer’s duty to defend.  In the SOR (Pa396), the trial court essentially concluded that the intent element in the “counts” of assault and harassment are not acts that constitute an accident under the policy.  However, the court failed to explain its rationale and overlooked the first count which was labeled “intentional interference with contractual relations”.  Regardless of how the counts were labeled, each count in the complaint alleged that, “Defendant has wantonly, willfully and intentionally disrupted the ongoing contractual relationships…”
[brief] Eyewitness identification evidence must be scrutinized carefully.  (11T:109-9 to 110-13).  The judge reminded the jury that “there are risks of making mistaken identifications” due to flaws in human memory:  “Although nothing may appear more convincing that a witness’s categorical identification of a perpetrator, you must critically analyze such testimony.  Such identifications, even if made in good faith, may be mistaken.  (11T:110-14 to 111-23).  The judge specifically advised the jury of the various estimator variables, see Henderson, 208 N.J. at 261-272, that can impact identifications, see (11T:112-11 to 115-12), and concluded the instruction as follows:  In evaluating the … reliability of a witness’s identification, you should also consider the circumstances under which any out of court identification was made, and whether it was the result of a suggestive procedure.  In that regard, you may consider everything that was done or said by law enforcement to the witness during the identification process.  You should consider the following factors.  You may consider whether the witness was exposed to opinions, descriptions, or identifications by other witnesses, to photographs or newspaper accounts, or to any other information or … influence, that may have affected the independence of his or her identification.  Such information can affect the independent nature and reliability of a witness identification and inflate the witness’s confidence in the identification.  You are also free to consider any other factor based on the evidence or lack of evidence in the case that you consider relevant to your determination whether the identifications were reliable.  … you may consider the factors that I have discussed as you assess all of the circumstances of the case, including all of the testimony and documentary evidence, in determining whether a particular identification made by a witness is accurate and thus worthy of your consideration as you decided whether the State has met its burden to provide identification beyond a reasonable doubt.  …  The ultimate issue of the trustworthiness of an identification is for you to decide.  (11T:115-13 to 117-4).
[brief] At trial, I testified that nowhere within any of the published tournament announcements was any mention ever made anywhere that there would be a limitation that a player could only receive one prize per event.  (1T4:2-7, 1T6:4-12)  And in response to the trial court’s questions, the defendants’ witness, [...], openly admitted to this fact.  [...] further admitted that the only place where this prize limitation was published was in the official [...] rule book, which had only been available to players whom had chosen to purchase the rule book separately.  (1T5:1-18, 1T11:7-13, 1T15:4-17)  --- 4  But since my schedule never significantly became any less hectic, about two weeks before the 6-year statute of limitations was to elapse, I wrote to [...] again trying to resolve the issue amicably, stating that I really did not want to take this court, unless he left me no other choice.  However he never responded to that email, so at the very last minute I filed this case.
[brief] ”  State v. Lamb, 218 N.J. 300, 315 (2014).  It is axiomatic that consent must be given voluntarily, and not under duress or coercion.  Ibid.; State v. Chapman, 332 N.J. Super. 452, 466 (App. Div. 2000).  “The heart of [New Jersey’s] voluntariness analysis hinges on whether an individual has knowingly waived his or her right to refuse consent. ”  State v. Hagans, 233 N.J. 30, 40 (2018).  Consent is a factual question determined from the relevant circumstances.  State v. Koedatich, 112 N.J. 225, 264 (1988), cert. denied, 488 U.S. 1017 (1989); State v. Williams, 461 N.J. Super.  80, 103 (App. Div. 2019), certif. denied, 241 N.J. 92 (2020).  The Supreme Court in State v. King set forth various non-exhaustive factors to guide a trial judge’s analysis of whether consent was voluntarily given.  44 N.J. 346, 352 (1965); see Hagans, 233 N.J. at 39; Williams, 461 N.J. Super. at 103-04.  Factors potentially indicating coerced consent include, (1) that consent was made by an individual already arrested; (2) that consent was obtained despite a denial of guilt; (3) that consent was obtained only after the accused had refused initial requests for consent to search; (4) that consent was given where the subsequent search resulted in a seizure of contraband which the accused must have known would be discovered; and, (5) that consent was given while the defendant was handcuffed.  _Hagans_, 233 N.J. at 39; _King_, 44 N.J. at 352-53.  The factors potentially indicating voluntariness of consent include, (1) that consent was given where the accused had reason to believe that the police would find no contraband; (2) that the defendant admitted his guilt before consent; and, (3) that the defendant affirmatively assisted the police.  _Hagans_, 233 N.J. at 39-40; _King_, 44 N.J. at 353.  As made clear in _Hagans_, the above factors are “not commandments, but ‘guideposts to aid a trial judge in arriving at his conclusion.
[brief] On July 6, 2022, defense counsel wrote to [...] to inform him that the Board was in the process of attempting to retrieve the documents and again asked for tax documents and the Warrant.  On July 12, 2022, defense counsel spoke with [...] advising that the fee checks had been drafted, documents were being gathered and that the Warrant to Satisfy was still needed.  This conversation was confirmed in writing on July 13, 2022.  During the course of the conversation, [...] advised that [...] refused to supply the Warrant of Satisfaction.  In the July 13, 2022 correspondence, defense counsel suggested that [...] could retain possession of the Warrant until Judgment was satisfied.  That suggestion was also rejected.  Further attempts to comply with the terms of [...]’s Order were not responded to, and Plaintiffs filed the motion to enforce litigant’s rights.
[brief] SUPERIOR COURT OF NEW JERSEY  APPELLATE DIVISION  DOCKET NO. [...]  STATE OF NEW JERSEY, : Criminal Action :  ON APPEAL FROM AN ORDER : SUPPRESSING EVIDENCE : ENTERED BY THE : SUPERIOR COURT OF NEW v. : JERSEY, LAW DIVISION, : PASSAIC COUNTY  [...], : INDICTMENT NO. [...]  Defendant-Respondent.  Sat Below: Honorable [...], J.S.C.
[brief] (5T:10-16 to 19) (PSR 3)  Because the homicide was committed very close in time to the robbery and at the same location, the entire incident constituted a single period of aberrant behavior, weighing heavily in favor of concurrent sentences.  [...]’s felony murder conviction indicated that the jury had found that the felony and the killing were closely connected in time, place, and causal connection, making up parts of one continuous transaction.
[brief] For example, was [...] ever told that the primary strategy of the defense in this case is for the [...] to throw him under the proverbial bus and to use him as a fall guy by claiming he failed to follow a clear and concise company directive and repeated radioed instructions, and by claiming that he failed to show up for two safety meetings wherein the prohibition against driving dump trucks through the police turnaround was specifically discussed?  Was [...] ever informed that he could have defended his municipal court charges instead of pleading to the illegal U-Turn offense as charged?  Was [...] ever informed that he would have an at-fault motor vehicle collision on his record that resulted in the death of another human being?  Was [...] ever informed that a large monetary judgment could be entered against him in this civil suit that, even if it was ultimately paid by the [...], would be on his record and could affect his credit rating and other personal financial matters?  Was [...] ever informed of the fact that the jury’s determination of liability in this matter would be a matter of public record that he could have to explain to potential future employers?  Most importantly, was [...] ever informed to consult with a separate attorney regarding the conflict/adversity of interest issue?  The certification that [...] prepared for Defendant [...] to sign fails to address the foregoing issues and its silence loudly suggests that [...] was not given a full understanding of the risks posed by [...]’s conflicted representation of both him and his employers in this lawsuit.
[brief] On August 29, 2019, Sheriff’s Officers [...] and [...] were on patrol in Somerset County.  (1T9-12 to 10-10, 10-23 to 11-3, 15-23 to 24).  The officers were in a “low profile” patrol vehicle, meaning that the car was visible as a patrol vehicle, but the lettering was faded and no lights were on the roof.  (1T12-19 to 13-22).  As Kromar’s field training officer, Manzo was driving Kromar around the county and showing him how to make traffic stops, interact with citizens, and complete paperwork.  (1T11-2 to 12-18, 15-25 to 16-2, 43-4 to 14, 44-6 to 12, 45-8 to 46-1).  Manzo instructed Kromar to call out motor vehicle violations and would advise Kromar whether or not he agreed.  (1T12-10 to 12, 16-5 to 7, 44-24 to 45-7).  From 8:30 a.m. to the early afternoon, the officers had made approximately ten traffic stops.  (1T15-10 to 15, 46-4 to 17, 52-1 to 7).  Around 1:30 p.m., the officers were in Green Brook Township driving westbound on Route 22, a four-lane highway with a barrier separating the two eastbound and two westbound lanes.
[brief] (State v. Garcia, 195 N.J. 192, 202 (2008)(quoting Taylor v. Illinois, 484 U.S. 400, 408 (1988)).  Defendant similarly argues that the State possessed exculpatory evidence or otherwise refused to perform tests which would exonerate defendant.  (Pb14 to 15; see Brady v. Maryland, 373 U.S. 83, 87 (1963)(holding that a prosecutor’s withholding of material evidence favorable to a defendant violates due process).
[brief] 1  STATEMENT OF FACTS  1  LEGAL ARGUMENT  5  I.  DEFENDANT’S CONVICTION FOR DWI SHOULD BE REVERSED BECAUSE THERE WAS SUFFICIENT CREDIBLE EVIDENCE IN THE RECORD THAT THERE WAS REASONABLE DOUBT.  (Raised below: Da1; Da40; 1T4:1-15)  5  CONCLUSION  9  TABLE OF JUDGMENTS, ORDERS & RULINGS
[brief] Ibid.  On February 11, 2019, [...] Esq. of [...] was substituted as counsel for the Defendants-Respondents.  Ibid.  On or about July 30, 2021, Ms. O’Hearn withdrew as counsel for Defendants-Respondents and [...], Esq. of [...] was substituted as counsel for Defendants-Respondents.  Ibid.  Despite the withdrawal of Ms. O’Hearn, [...] has remained counsel for the Defendants-Respondents since February 11, 2019.  Ibid. filing of the designated trial counsel notice.  (Da7).  He performed no substantive work in the defense of this consolidated matter.  Ibid.  All substantive work was performed by Ms. O’Hearn, Ms. Dohn, and [...].  Ibid.  Ms. Dohn and [...] continue to represent all Defendants-Respondents.  Ibid.  On July 3, 2024, [...] filed a Motion to Disqualify [...] as counsel for Defendants-Respondents.
[brief] 3T67:10-19.  He is asked about the $161,000 in commissions that he received, and if that $161,000 is included in the $732,070.39, which was on the P&L instead of the $587,000.00.  [...] said that this was included.  3T67:10-19.  Later as this line of questioning continues those total receipts for that same year, 2019, amount to $839,000.00.  3T69:7-18.  [...] was asked about the legal fees number which the P&L stated was for $318,570.00, which differed from the lessor number above.  3T70:19-72:3.  [...]’s response to questions about these numbers and the settlement payments was that, “But -- but you know, again, you know we’re talking about literally thousands of numbers here, and I have to look at more detailed backup to really remember what occurred.  Okay?”  3T72:6-15.  Neither [...] nor the documents submitted into evidence fully accounted for the $1.028 million dollar settlement.
[brief] On January 12, 2012, Detective [...] of the [...] was conducting surveillance near a T-Mobile store located on Parsonage Road in Edison.  Detective [...] was conducting surveillance near a Radio Shack and Verizon Wireless in Wick Plaza in Edison.  Detective Todd testified he observed a black Buick drive near the T-Mobile store.  After a few minutes, the passenger, described as African-American, approximately five feet and eleven inches, wearing a black baseball hat and a black-hooded sweatshirt and black gloves, exited the car.  A second man, also described as African-American, approximately five feet and eight inches, wearing a black baseball cap, black-hooded sweatshirt, and gray jacket, also exited the vehicle.  Detective Todd stated he observed the taller man talking on his cell phone at the same time the driver was on his cell phone.  Detective Todd believed they were speaking to each other.  Detective Todd also observed the Buick pull into a driveway adjacent to a building on Parsonage Road.