ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] He argued the identification procedure was impermissibly suggestive due to system variables (the inherently suggestive showup procedure conducted based on an anonymous source), and the officer's failure to adequately record the procedure, including any pre-identification instructions, violated Rule 3:11 and State v. Delgado, 188 N.J. 48 (2006).  In support of the motion, defendant submitted the incident report, an audio recording of [...]'s testimony before the grand jury, and an audio recording of [...]'s statement.  In her brief, defense counsel stated that she had not received “any showup identification worksheet or report further documenting communications between officers and [[...]] during the procedure,” and the incident report was the only record of the procedure.  The State opposed the motion and argued defendant had failed to meet his burden of presenting some evidence of suggestiveness in a system variable, and even if a hearing were granted, the motion to suppress should be denied because “there [was] overwhelming indicia of reliability. ”  The prosecutor did not submit the worksheet to the trial judge but cited to [...]'s grand jury testimony in which [...] said he was “confident” in his identification, and the officer told him the person they detained may or may not have committed the offense and he was not compelled to make a selection.  The trial judge denied the motion for a Wade/Henderson hearing and found that although “there are various elements of State v. Henderson, which may be argued to the [j]ury,” it was clear from the testimony presented to the grand jury and other submissions that it had “not risen to the level that a hearing is required.
[brief] This testimony amply supports the Board’s finding: “…. that the proposed buildings that would be 67% taller than allowed would be a more intense use than the Planning Board and governing body intended at the subject property[.]”  Ja034.  Contrary to the assertion in Plaintiffs’ Brief, the testimony of Plaintiffs’ traffic expert, [...], does not provide an evidential foundation for an expert opinion that building height is immaterial to traffic generation.
[brief] Given the -- given the fact that the bar of the statute of limitations appears on the base of the Complaint, it can be asserted as a failure to state a claim upon which relief can be granted.  See *Rappeport versus Flitcroft*, 90 N.J. Super. 578 at 581 (Appellate Division, 1966).  The statute of limitations for personal injury, as I said, is governed by N.J.S.A. 2A:14-4\(^4\) in determining when a cause of action for personal injury accrues, the Court must inquire as to when the parties seeking to bring the action is aware of the injury or reasonably should have been aware of the injury.
[brief] (13T: 172-25 to 173-2).  [...] stayed in the car while [...] pursued so that he could wait and see which direction the suspect would go so that he could try to cut off the suspect’s avenue of escape.  (13T: 173-6 to 16).  Shortly afterwards, he heard [...] radio that the suspect was coming back out the way he had gone in, and then [...] got out of the car to assist and saw that his partner had already tackled the suspect.  (13T: 173-19 to 174-13).  He indicated that the man he had helped to pursue was the defendant.
[brief] Columbia, Guam, Puerto Rico, and the federal government prohibit animal fighting generally, or dog or cock fighting specifically; and of those statutes, many of them proscribe conduct substantially akin to that contemplated in N.J.S.A. 4:22-24a(2).10  ---  10  See, e.g., 7 U.S.C. § 2156(a)(2)(A) (“Animal fighting venture prohibition”); Code of Ala. § 13A-12-4 (“Cock fighting”); Alaska Stat. § 11.61.145(a)(3) (“Promoting an exhibition of fighting animals”); A.R.S. § 13-2910.04 (“Presence at cockfight; classification”); A.C.A. § 5-62-120(b)(1)(B) (“Unlawful animal fighting”); Cal. Pen. Code § 597c.
[brief] 34  IV.  THE CERTIFICATION IN OPPOSITION TO OBJECTORS’ MOTION TO ENLARGE THE PERIOD OF TIME IN WHICH TO FILE THE COMPLAINT IN LIEU OF PREROGATIVE WRITS AND EXPAND THE RECORD BELOW WAS BASED UPON FACTS APPEARING IN THE RECORD AND REPLETE WITH RELEVANT, CERTIFIED, EXCERPTS FROM THE TRANSCRIPTS OF THE HEARINGS BEFORE THE ZBA (Not Raised Below by Appellants).  36  V.  THE TRIAL COURT’S JUDGMENT DENYING OBJECTORS’ MOTION TO ENLARGE THE PERIOD OF TIME IN WHICH TO FILE THE COMPLAINT IN LIEU OF PREROGATIVE WRITS WAS PROPER AND NO APPEAL LIES FROM THE TRIAL COURT’S STATEMENT OF REASONS (Not Raised Below by Appellants).
[brief] [Pa203 at ¶ 16].  That is when [...] disclosed that it never had any documentation (Pa175 at ¶ 8), and that its promises to provide non-existent documents were a ruse from the start.  Because efforts to “communicate” with [...] were unsuccessful and demands to “pause whatever work was being conducted” were ignored [Db3, Db12], [...] was forced implement its own non-exclusive security measures to prevent further dumping (which had at that point been continuing without end).
[brief] Plaintiff reported Defendant [...] to her supervisor, [...], the hospital’s COO.  (Pa658 – Pa659).  Plaintiff further reported Defendant [...] to [...], another member of Defendant’s management.  (Pa658 – Pa659).  Following the June 2020 incident, Plaintiff made multiple complaints to Defendants’ Chief People Officer, [...]. (Pa659).  These complaints constitute CEPA-protected activity, whether or not Plaintiff specifically complained about harassment within the meaning of the statute.
[brief] On September 1, 2017, [...] failed to make the annual rental payment due to [...] under the Lease in the amount of $206,045.  [Pa287; Pa140].  At that time, Appellants were negotiating to buy the land from [...].  However, internal strife among Appellants’ investors interfered with Appellants’ ability to raise enough money to purchase the land, or apparently to pay the rent due under the Lease.  [Pa140; Pa286].  Indeed, as Appellants acknowledged, [...]’s “inability to pay annual rent in 2017 was due, in part, to an internal shareholder dispute within the company, principally between [...] and another shareholder named [...] concerning the company’s direction and business strategy. ”  [Pa71].  Appellants admit that in September 2017, it was they who disclosed to the [...] that there was a default in payment of rent under the Lease.  [Pb10].  On September 5, 2017, [...]’s counsel sent a written notice to [...] advising that it was in default of its payment obligations under the Lease.  The notice further informed [...] that it was required to make payment in the amount of $206,045 within ten (10) days from the date of the notice, in accordance with the Lease.  [Pa141; Pa287].  The notice further informed [...] that [...] had the right to terminate the Lease if payment was not received within the indicated time frame.  In the event of termination, [...] would be required to surrender and return the Property to [...].  [Pa141; Pa287].  [...] never made the required payment under the Lease and [...] terminated the Lease on October 17, 2017.  [Pa141; Pa287].  Alex [...], a principal of [...] and [...], admitted that [...] was within its rights to terminate Appellants’ Lease when the annual rental payment was not made.  [Pa141; Pa287].  [...] then formed [...] in 2017 after [...]’s Lease default.
[brief] Most problematic is the proactive objections by ZBA Counsel as to the admissibility of exhibits proffered by Appellants.  While the confusing and aggressive approach to exclude evidence on May 23, 2022 was lost, a sample of a typical exchange was captured as part of another matter before the ZBA also on August 22, 2022 in which Counsel for Appellant was cross-examining that applicant in his capacity as a resident of [...].  (Pa597-Pa616)  [...] seems to have allowed the admission of an 2006 engineering report in the instant matter and again in that matter, and then seems to reverse himself in the midst of provide a rational to exclude other evidence proffered by [...].  Query whether that report is available for the ZBA to consider in this matter.  The verbatim record is clear that [...] was not acting as a legal advisor to the ZBA but was presiding over the meeting.
[brief] (7T33:1-4; 7T39:24-40:3; 7T40:4-42:13).  Defense counsel first stated, “[[...]] relied on [the plaintiff] and her honesty and her accuracy, and I guess they’re asking you to do that too, even though she didn’t come to Court to testify about what happened. ” (7T25:2- 6).  He next stated, “[t]hey didn’t call [...].  They didn’t call [...].  The two people that were actually in aisle 58 on May 30th, 2019, didn’t call either one of them in their case. ” (7T33:1-4).  Then when discussing the analysis of witness credibility defense counsel stated, “[t]he witness’s demeanor on the stand, the presence of any inconsistent or contradictory statements.  Credibility.  You weren’t given an opportunity to judge [the plaintiff’s] demeanor. ” (7T39:24-40:3).  Plaintiff’s counsel objected to these repeated comments.  (7T40:4-42:13).  Although the Trial Court instructed the jury to disregard these statements and that they were not infer why the plaintiff was not present and take anything away from that, the instruction did not erase the prejudicial impact of the statements.  Our Supreme Court has instructed that counsel may not make adverse inference arguments regarding the absence of a witness from trial during summation when an adverse instruction is improper.
[directive] 10 to respond to a call for service.  Rather, the officer may delay activation until they are near the destination.  5.3.1  Except as otherwise expressly provided in Section 6 or any other provision of this Policy, when a BWC is required to be activated by an officer pursuant to this Policy, the device must remain activated throughout the entire encounter/event/episode and shall not be de- activated until it is concluded (e.g., the BWC-equipped officer has left the scene; all civilians involved in the encounter have left the scene; the officer has informed the dispatcher or a supervisor that the event has concluded; the event is “closed” on the department’s computer-aided dispatch (“CAD”) system, etc.).
[brief] 17  State v. Lewis, 185 N.J.  363 (2005) ............................................................................. 39  State v. Terry, 430 N.J. Super. 587 (App. Div. 2013) .................................................. 45  Velop, Inc. v. Kaplan, 301 N.J. Super. 32 (App. Div. 1997) .................................................................  19  Whirlpool Props., Inc. v. Dir., Div. of Tax'n, 208 N.J. 141 (2011) .................................................................................. 18, 21 Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001)  ......................................................................................  48  Zorba Contractors, Inc. v. Hous. Auth., City of Newark, 362 N.J. Super. 124 (App. Div. 2003) ............................................................  19 Statutes N.J.S.A. 2C:21-20 ............................................................................................... 4 N.J.S.A. 2C:21-4.6 ............................................................................................. 35 N.J.S.A. 2C:41-4 ...............................................................................................
[brief] In this regard, the trial court held as follows:  A formal accounting is not required in every case.  Pursuant to Rule 4:87-1(b), an accounting may be ordered in appropriate circumstances.  And N.J.S.A. 3B:17-2 also provides for an accounting to be ordered, but it certainly doesn’t require an accounting in every case.  1T17:25–1T18:5.  Additionally, the trial court held that Rule 4:87-1(b) gives the court the discretion to order an accounting in “appropriate circumstances. ”  1T4:16–17; 1T5:2–4; 1T17:25–1T18:5.  On June 7, 2023, Plaintiff filed a Motion for Reconsideration.  (Pa456–65).  In his motion, Plaintiff argued that the trial court had misapplied the law governing an interested party’s right to compel an accounting, erred in determining that Defendant’s filings constituted an informal accounting, and made erroneous determinations of fact.  On June 26, 2023, Plaintiff filed a Reply Certification of [...] in further support of the Motion.  (Pa473–82).  At the oral argument on July 14, 2023, counsel for Plaintiff argued that a court may be subconsciously biased to believe a court-appointed fiduciary and cited to the trial court’s prior statement that “the suggestion that [Defendant] converted Plaintiff’s property is simply outrageous.
[brief] THE JUDGE FAILED TO ASSIGN A BURDEN OF PROOF BEYOND A REASONABLE DOUBT TO THE JURY’S ANSWERING OF THE “YES/NO” INTERROGATORIES ON THE VERDICT SHEET; MOREOVER, THE USE OF SUCH INTERROGATORIES, PARTICULARLY FOR THE STANDARD ELEMENTS OF A CRIME, ARE IMPROPER UNDER STATE V. SIMON.  (NOT RAISED BELOW)...........................................................................  58  POINT IX  IF OTHERWISE UPHELD, THE THEFT CONVICTION SHOULD BE MODIFIED TO A DISORDERLY-PERSONS OFFENSE; COMMON SENSE DICTATES THAT THE LEGISLATURE DID NOT INTEND A STATE-EMPLOYEE IDENTIFICATION CARD TO CONSTITUTE  A “PUBLIC RECORD, WRITING, OR INSTRUMENT” THAT, WHEN MERELY RETAINED INAPPROPRIATELY, CAUSES THE EMPLOYEE TO BE GUILTY OF COMMITTING A THIRD-DEGREE CRIME, PUNISHABLE BY UP TO FIVE YEARS IN PRISON, RATHER THAN A MERE DISORDERLY-PERSONS OFFENSE.  (RULING AT 20T 11-25 TO 16-1)  ...........................................................................  62  CONCLUSION ..................................................................................................................
[brief] Moreover, the forensic evidence, although discussed, was not pivotal to the State’s case.  Defendant does not dispute that [...] was murdered with the wine chiller; and allegedly her discovery of the body caused her flight.  Thus, the forensic evidence merely affirmed what defendant acknowledged.  In contrast, the jury heard about defendant’s confession, her flight, and her lies.  The jury was also properly instructed that they held ultimate authority as fact-finders and were not obligated to accept expert testimony.  Thus, the few remarks by forensic experts, when considered within the broader context of their testimony and the trial itself, do not rise to the level of plain error.
[brief] *Ibid.* (citing N.J.S.A. 10:5-14.1).  That supplied ample legal basis for the State to seek, and for the court to award, an order maintaining the status quo while the DCR administrative action proceeds.  *Ibid.*  The trial court also found the State had a reasonable probability of success on the merits of its LAD claims.  The court found the State was likely to prevail in arguing that the Amended Policy violated the LAD’s prohibition on disparate treatment: the new policy, by its terms, adopted a different notification policy for transgender, gender non-conforming, and non-binary students than for their cisgender peers.
[brief] ”  The Borough has done nothing to modify or amend its zoning ordinances in any way since that Order was entered, and it is therefore inappropriate to suggest that the Borough is attempting to obstruct affordable housing through local zoning decisions.  In fact, the Redeveloper was well aware of the zoning in place for the property located at [...] when it purchased the property in 2019.  It should, therefore, not be heard to complain that the Borough has maintained the existing zoning ordinances that the Redeveloper, the Court and the Special Master were all well aware of at the time Your Honor entered the Order.
[brief] A governing body’s consistency determination “is entitled to great weight and deference. ”  Id. (quoting Manalapan, 140 N.J. at 383); see also Fallone, 369 N.J. Super. at 560-61 (presumption that “municipal governing bodies will act fairly and with proper motives and for valid reasons”) (quoting Kramer v. Bd. of Adj., Sea Girt, 45 N.J. 268, 296 (1965)).
[brief] TABLE OF CONTENTS | Section | Page | |------------------------------------------------------------------------|------| | TABLE OF JUDGMENTS, ORDERS, AND RULINGS | iii | | TABLE OF CITATIONS | iv | | PRELIMINARY STATEMENT | 1 | | PROCEDURAL HISTORY | 2 | | COUNTERSTATEMENT OF FACTS | 3 | | ARGUMENT | 14 | | POINT I | | | DEFERENTIAL STANDARD OF REVIEW (Pa73-Pa74; 3T35-4 – 3T49-9) | 14 | | POINT II | | | NOTICE WAS PROPER UNDER THE MUNICIPAL LAND USE LAW (Pa74; 3T35-4 – 3T38-5) | 16 | | POINT III | | | THE [...] SATISFIED THE CRITERIA FOR A USE VARIANCE AND THE ZONING BOARD PROPERLY EXERCISED ITS DISCRETION IN GRANTING THE SAME (Pa74; 3T38-10 – 3T49-9) | 19 | POINT IV  THE ZONING BOARD PROPERLY CONSIDERED THE SPECIFICS OF THE MASTER PLAN AND ZONING ORDINANCE (Pa74; 3T46-21 – 3T48-3).  ...........................................  25 POINT V THE ZONING BOARD’S DECISION WAS PROPERLY MEMORIALIZED (Pa110-Pa112; 3T39-18 – 3T49-9).  .................................  26 POINT VI  THE THIRD COUNT OF THE COMPLAINT WAS PROPERLY DISMISSED (Da1-Da24; 3T4-1 – 3T4-14)...........................................  28 CONCLUSION.  .................................................................  30  TABLE OF JUDGMENTS, ORDERS, AND RULINGS
[brief] Appellants only challenged the Ordinance in their Complaint, not the designations.  (Pa126 at ¶¶11-16; Pa90; see gen. Pa46-53.)  This is no surprise, as those determinations were made by October 13, 2020, over three years prior, and Appellants were well outside any time to challenge such decisions.  See R. 4:69-6(b)(3); N.J.S.A. 40A:12A-6(b)(7) (45-days); 240 Half Mile Rd., 2022 N.J. Super. Unpub. LEXIS 1002, *28-29 (affirming dismissal of untimely complaint filed 442 days after designation); Coal. for Friendly Envtl. Expansion, Inc. v. Bor. of Magnolia, 2011 N.J. Super. Unpub. LEXIS 2258, at *20 (App. Div. Aug. 22, 2011) (affirming dismissal of three-year “belated challenge to the initial redevelopment designation”); see also PADNA, 413 N.J. Super. at 335 (estopping belated challenge); Cliff v. City of S. Amboy, 2008 N.J. Super. Unpub. LEXIS 340, at *10 (App. Div. Aug. 8, 2008) (affirming dismissal of late challenge).
[brief] 587a–600a.  Though [...] and [...] were the only Members of [...], neither ever saw nor executed, on behalf of [...], the [...]-MTDC Assignment.  433a (178:9–179:14); 533a–534a (30:24–34:10).  However, Plaintiffs, pursuant to the representations of [...] and [...], were made to spend substantial funds in contractual payments in pursuit of the [...]-MTDC Assignment.  562a–568a.  Notwithstanding that [...] and [...] contacted Plaintiffs and had in person meetings with Plaintiffs months prior to the formation of [...] and the execution of the McTague-[...] Agreement, [...] and [...] had [...] (a long-time friend of [...] and [...]) on behalf of [...], the “flipper”, enter into the McTague-[...] Agreement.
[brief] PCAST Report at 105.\(^4\)  These supposed individual characteristics are only evident under a microscope.  Thompson at 9.  In a case such as this one, the examiner fires a test bullet from the suspect gun and compares the bullets and casings recovered from the tests to the bullets and casings recovered from the scene.  (11T 45-15 to 46-16)  He first determines if the class characteristics demonstrated by the firearm and ammunition are shared.  Thompson at 9.  If so, the examiner moves on to consider individual characteristics under a microscope.  Ibid.  If the examiner finds “sufficient agreement” between the individual characteristics seen in the two sets of ammunition, he declares a match and concludes that the ammunition found at the scene came from the suspect gun.
[brief] For the first prong, irreparable harm, the court noted that, while “money damages isn’t an irreparable harm,” potential lenders for the development would know about [...]’s declaration of taking in a condemnation proceeding should it be allowed to proceed, and this would “cast a shadow . . . on being able to move forward with development” (id. at 52:15-16, 24-53:1).  The court stated that Plaintiff’s claim was not unsettled pursuant to the second Crowe factor, because “the legal right and the legal obligations under the Mount Laurel doctrine are pretty clear” once the determination had already been made that [...] was not constitutionally compliant (id. at 53:24-25).  The court also noted that it had not “heard anything indicating, other than that the town wants this to be commercial, that it’s environmentally not appropriate, that nothing can be built here.  Obviously, the town wants something to be built here of a commercial nature” (id. at 53:19-23).  The court emphasized that, although the developer might not get “everything they want” or even “anything that they want” in the ensuing case proceeding, the procedural posture of the action after the Non-Compliance Order was such that [...] “absolutely cannot condemn property where a builder says I want to build a residential housing project with an affordable housing component” (id. at 54:2, 2-3, 22-23).  In limiting [...] from taking further action or effort towards designating a redeveloper for the property, the court held that this relief was granted for the same reasons, noting that “the structure of how a Mount Laurel case moves forward, which is different [than a lot of other lawsuits] as specifically laid out by the New Jersey Supreme Court” (id. at 55:20-23).
[brief] Rosales, 202 N.J. at 567.  [...] stated that he believed the portion of her statement regarding [...] killing his family because it was corroborated by a hearsay text message that wasn’t introduced in the State’s case in chief.  (13T:54-11 to 17).  Specifically, [...] stated that human memory is fallible, therefore, he relied on a hearsay text message that was never introduced in the State’s case in chief to determine whether [...] talked “about harming, shooting, or killing people before the incident. ” (13T:41-23 to 42-9).  Dietz stated, “instead of relying on someone’s memory of events in the past, finding a phone record that captures what words were used, was important evidence. ” (13T:42-10 to 13).  Furthermore, [...] stated that he relied on this hearsay document for the truth of the matter.  (13T:42-10 to 20).  The Court introduced this evidence over the defense’s objection.  (13T:42-24 to 45-21).  Despite [...] testifying, the State did not introduce this text message.  (6T:99-8 to 150-11).  Ultimately, [...] should not have been allowed to opine on the ultimate issue in the matter that he did.  [...] repeatedly testified about the ultimate issue in this case.  (14T:110-8 to 16).  In addition, [...] gave an in-depth of [...]’s State of mind and gave an analysis of what [...] did and why he did it.  (14T:110-21 to 112-9);(14T:115-20 to 23).  For example, based on a thumbnail of an internet search that was on [...]’s phone, [...] testified that [...] was planning to get into a gun fight with the police.  (14T:108-20 to 109-2).  [...] also gave in depth testimony regarding [...]’s ability to appreciate the wrongfulness of his acts.  (14T:113-25 to 114-6).  In addition, [...] took it a step further and called [...] a “mass murderer” and “family annihilator” in front of the jury.  (14T:114-8 to 12).  This type of testimony was unduly prejudicial and unable to be cured by any limiting instruction and was so prejudicial that it denied [...] Kologi his right to a fair trial.
[directive] Examining collateral issues can provide the law enforcement agency and its executive officers with information concerning: (a)  The utility and effectiveness of the agency's policies and procedures.  (b)  The competency and skills of individual law enforcement officers.  (c)  Appropriate topics for in-service training programs.  (d)  The allocation of resources by the law enforcement agency and other municipal agencies.  43  INTERNAL AFFAIRS POLICY & PROCEDURES | August 2020