ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Sanchez v. Fitness Factory Edgewater, LLC, 242 N.J. 252 (2020) .......................  7 State v. Ferguson, 238 N.J. 78 (2019) ......................................................................  6  Sun Co., Inc. v. Zoning Bd. of Adj. of Borough of Avalon, 286 N.J. Super. 440 (App. Div. 1996) .................................................................  10  Williams v. N.J. State Parole Bd., 255 N.J. 36 (2023) ........................................  10  Zabilowicz v. Kelsey, 200 N.J. 507 (2009) ............................................................  8  Statutes N.J.S.A. 40:48-2.12s3 ..........................................................................................  7 N.J.S.A. 40A:12A-5 ..........................................................................................  3, 4, 5, 8 N.J.S.A. 55:19-78 ..............................................................................................  3  PRELIMINARY STATEMENT
[brief] The [...] UDO permits waivers in an instance wherein the applicant provides proof of hardship:  The rules, regulations and standards set forth in this section shall be considered the minimum requirements for the protection of the public health, safety and welfare of the citizens of the Township.  However, if the applicant can clearly demonstrate that, because peculiar conditions pertaining to the subject parcel, the literal enforcement of this section is impracticable or will exact undue hardship, the Planning Board may permit such exemption(s) and waiver(s) as may be reasonable within the general purpose and intent of the rules, regulations and standards established by this section.  (UDO Sec. 18-601) (Da239)  (Emphasis added)  The Supreme Court in Lang v. Zoning Bd. of Adjustment, 160 N.J. 41 (1999) has made clear that personal hardship as to variance relief is irrelevant to the statutory standard for hardship under N.J.S. 40:55D-70(c), and that the correct focus must be on whether the strict enforcement of the ordinance would cause undue hardship because of the unique or exceptional conditions of the specific property.
[brief] As noted above, the presumption was never rebutted; indeed, [...] never received any comments regarding consistency of the Project with the Areawide WQM Plan, despite having the opportunity to do so, and as such could not consider nor create a record relating to such concerns prior to permit issuance.  Even now, [...] does not point to an inconsistency with any specific Areawide WQM Plan or TMDL.  Instead, [...] relies on rule proposal summary language; specifically, a statement in the rule proposal that “[i]f a WQM plan has additional requirements, or a wasteload allocation in an adopted TMDL has been established, these must also be addressed” for consistency, (Ab22), to argue that [...] was required to “make a record” of TMDLs for this FHACA permit, and that considering TMDLs for this FHACA permit is “the only sensible reading of the rules. ” (Ab17; Ab22-23).  But the WQMP rules have no such TMDL-record-generating requirement relating to WQMP consistency.
[brief] In *State v. Roth*, 95 N.J. 334 (1984), the New Jersey Supreme Court established a three-part analysis for appellate review of a sentencing decision.  The court must determine: 1) whether the correct statutory sentencing guidelines and presumptions have been followed; 2) whether there is substantial evidence in the record to support the court’s application of those guidelines; and 3) whether in applying those guidelines to the relevant facts, “the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors. ”  Id. at 365-66.  On review, an appellate court should not substitute its judgment for that of the trial court.  State v. Burton, 309 N.J. Super. 280, 290 (App. Div. 1998), certif. denied, 156 N.J. 407 (1998) (citing Roth, 95 N.J. at 365).  The test is not whether a reviewing court would have reached a different conclusion on what an appropriate sentence should be; it is rather whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review.  Id.  The appellate court shall review the aggravating and mitigating factors and “modify defendant’s sentence upon his application where such findings are not fairly supported on the record, see N.J.S.A. 2C:44-7, but only where the sentencing court has made a clear error in judgment that would shock the judicial conscience of the reviewing court. ”  Roth, 95 N.J. at 364.  The trial court must examine the aggravating factors, but the consideration of the mitigating factors remains discretionary.  State v. Setzer, 268 N.J. Super. 553, 567-68 (App. Div. 1993); certif. denied 135 N.J. 468 (1993).  If there is a preponderance of aggravating factors, the court may impose sentence up to the maximum degree of the offense.  If there is a preponderance of the mitigating factors, the court may sentence down to the statutory minimum.  Roth, 95 N.J. at 359.
[brief] They also mischaracterize Plaintiffs' arguments as a mere "disagreement" with the [...]'s (Township) decision to adopt Ordinances No. 2022-15 and No. 2022-17.  This could not be further from the truth.  Plaintiff's agreement with the Township and the Planning Board's decision is neither here nor there.  Plaintiffs' contention is that Defendants violated both the spirit and clear mandate of the Local Housing Redevelopment and Housing Law (LRHL).  There are clear requirements in the LRHL that evidence the goal of the legislature to ensure municipalities adopt sound land use policies and, at the same time, provide the public with clear reasoning as to why certain ordinances were adopted.  While a municipality has discretion in the ordinances it adopts and the reasons for doing so, that discretion is not unfettered.  In addition, that discretion does not shield a municipality from complying with the clear statutory mandates of the LRHL.  Here, the municipality did not follow the requirements of the LRHL and for that reason, Plaintiff respectfully requests this Court remand and reverse the trial court's grant of summary judgment in favor of Defendants.
[brief] \(^2\)  As the record before the trial court showed, people came up to [...] and told him in early August 2019 that there were people crossing the dune in the area in front of the [...] property, and [...] personally observed multiple people crossing from the [...] property over the [...] property where [...] fencing had recently been installed.  (Pa317-Pa318)  There was thus more than sufficient reason for [...] to believe that the [...]s were accessing the beach via the unauthorized walkover, as they had openly done before without [...]’s consent.  Conversely, there was no reasonable basis to think anyone other than the [...]s would have been using this particular area to access the beach, as to do so they would have had to first walk across the [...]s’ property.  After [...] personally observed what he believed at the time to be either a [...] family member or one of their friends going \(^2\) Plaintiffs argue that the trial court should have only read the allegations in the proposed amended complaint and should have ignored all of the facts and information in the motion record – including facts and information submitted by Plaintiffs themselves.
[brief] Instead, the Court only awarded $50,000.00 to [...] and [...].  Under the logic of *Moses v Moses*, the Court below missed the opportunity to correct a wrong.  [...] abused his confidential relationship with the in-laws by placing his own name on the deed and not theirs.  When the Court rendered its summary judgment decision, the Court wrote that no contract was formed at all, and dismissed Plaintiffs’ count for breach of contract.  Somehow at trial, where no one argued joint venture, that is what the Court concluded.
[brief] The orders submitted in support of the motion are relevant as they show [...]’s conduct in the underlying litigation and the tactics he has undertaken.  [...]’s discovery tactics directly support the underlying motion as the orders demonstrate that Carindale’s intentions are not to obtain relevant discovery but rather to harass and intimidate innocent third parties.  (12a-16a; 18a-33a)  Therefore, it is respectfully submitted that the trial court’s order should be reversed.
[brief] The School did produce in evidence a 1972 Zoning Variance and Site Plan for the Lot 5 School (then being expanded), that approval/plan did not provide --- either in the Resolution or the Site Plan --- for any use of the School courtyard for any parking, either by School vehicles or off-site parking for Lot 8 staff/attendees.  The 1972 School Site Plan/Variance records (Da13-22) established the [...] participated, made no assertion of a Lot 8 parking use or right on Lot 5, and actually agreed and represented that there was availability for School Lot 5 parking requirements on nearby properties then owned by the [...], as Lot 5 was deficient for the School’s own parking needs (Da13-22).  The [...] asserts that its off-site parking use of the School Lot 5 is a currently “permitted” use on Lot 5, because parking standards are specified for “places of worship” under Section 18-905 (Da266) and for “public and private schools” under Section 18-906 (Da268).  Parking for a principal use on a lot/parcel has always been deemed a customary accessory use on that same Lot, See Chatham v. Donaldson, 69 N.J. Super. 277 (App.Div.1961).  The [...] assert that its off-site parking on Lot 5 is a current permitted use is because parking is a permitted accessory use for a school and place of worship.  However, an “accessory use” must be located on the same Lot as the principal use it is supporting.
[brief] Accordingly, not only was [...]’s documentary “evidence” completely silent in relation to the exact type, quantity and price of material that was allegedly purchased from [...], but the depositions of [...]’s representatives were equally unenlightening as to [...]’s burden of sufficiently proving its alleged six-figure damages.  But these same depositions, however, were highly informative and speak volumes regarding the corporate culture and pertinaciously slipshod practices that perversely nurture a broken business system that was averse to proper recordkeeping and discovery compliance, all of which the legal process requires for any proper and meritorious legal actions to be filed.  Through the words and testimony of [...]’s two corporate mouthpieces, it was [...]’s broken “system” and toxic culture that was ultimately incapable of complying with the most basic demands of the discovery process.  This same rage and fear fueled tunnel vision blindly lead to the wasteful filing of an utterly non-meritorious and drawn-out legal action fueled by arrogance, chutzpah and blind fury, and a disreputable and misbegotten effort to use and abuse the legal process as a blunt instrument of submission to [...]’s arbitrary and capricious demands.  Accordingly, the Order of the Law Division granting [...] summary judgment should be affirmed.
[brief] 1T – trial transcript, April 4, 2023; 2T – trial transcript, April 5, 2023; 3T – trial transcript, April 6, 2023, Volume I; 4T – trial transcript, April 6, 2023, Volume II; 5T – trial transcript, April 18, 2023; 6T – trial transcript, April 19, 2023; 7T – trial transcript, April 20, 2023; 8T – motion transcript, October 12, 2023; 9T – motion transcript, December 14, 2023.  PRELIMINARY STATEMENT  Defendant was convicted of second-degree theft by deception following a seven-day jury trial.  The evidence showed that defendant accepted $750,000 from six investors in exchange for 30% ownership in a franchise of [...] ([...]), a restaurant, in [...], when defendant in fact only owned 5% of that franchise.  Defendant also did not have the authority to sell shares without the consent of his business partner, which he did not have.  Defendant then used the investors’ money to pay off personal debts.  Barely a week following his conviction at trial, defendant filed a motion for a new trial based on newly discovered evidence.  In support of the motion, defendant alleged that he had discovered franchise agreements, signed by him, showing that a business owned by his sister was the sole franchisee for the [...] location.  Defendant testified that he discovered these franchise agreements—which were contained in his own emails—in just about an hour.  Ignoring the fact that he could have conducted the same search at any time during the four years between the indictment and trial, the trial judge found that the documents could not have been discovered with reasonable diligence.  The trial court also ignored a plethora of evidence—on the face of the documents, in testimony from the other signatory to them, and through defendant’s own contradictory actions—that the franchise agreements were obviously fraudulent.  While the trial judge addressed and dismissed the other signatory’s testimony that [...] could not locate any copy of these documents, the judge failed to consider the credible evidence adduced at trial that the agreements were more than likely forged.  Finally, the documents would not have changed the outcome of trial, as they did not show that defendant owned more than 5% of the franchise that he sold, much less that he had the right to sell those shares.  And one of the documents—which again did not address ownership of the [...] franchise—was cumulative of evidence presented at trial.  Because the so-called newly discovered evidence on which defendant based his motion did not satisfy any of the prongs for a new trial, the trial court’s order granting a new trial should be reversed and defendant’s conviction reinstated.  STATEMENT OF PROCEDURAL HISTORY
[brief] Rather, the State argues that any “potentially inappropriate remarks” from [...] constituted only harmless error because they were followed by corrective instructions from the trial court.  (Sb10, 20-24)  However, only one of the numerous improper identifications was addressed by the Court, following video S-38.  For the remainder of the videos where [...] identified the shooter, there was no corrective instruction.  As discussed in [...]’s original briefing, several of those videos – S-37, S-39, and S-41 – were critical to the State’s case.  (Db10)  Video S-37 in particular was essential because it was the only video that purported to show the shooter entering and exiting the Chevy.  (Db26)  The court provided no corrective instruction when [...] explained that she was pointing to the portion of S-37 that showed “the individual getting out of the vehicle…wh[om I] believe to be the shooter.  (5T245-3 to 22)  That fact was in dispute, and could only have been based upon an inference drawn from other facts in evidence, in violation of Watson factors three and four.  (Db20-22)  And because there were significant evidentiary gaps in the State’s case, [...]’s uncorrected, improper narration testimony constituted plain error requiring reversal.  As discussed, the State offered no firearm, no motive, and no eyewitness to the shooting itself, and the only consistent description of the suspected shooter was that he wore some type of gray clothing.  (Db25 – 26)  Accordingly, the video footage was needed in order to fill these evidentiary gaps by purporting to connect the shooter to the Chevy Malibu.  But even then, the video was too blurry and indistinct for it to speak for itself.  The State thus needed [...] to provide her own interpretation of the video: that it showed the shooter exiting the Chevy.  Because the detective’s interpretation of the video was both essential to the case and improperly admitted, it deprived [...] of a fair trial, requiring reversal.  POINT II
[brief] Before the trial even began, the assistant prosecutor knew that [...] was now, for the first time, in a position to make an in-court identification of defendant.  He failed to tell defense counsel what he had learned and not until she had opened and cross-examined the first two State's witnesses did he tell her of this extraordinary change in the posture of the State's case.  That delay is a violation of the discovery rules in criminal cases.  *Rule* 3:13-3(g) obligates the State to “promptly notify the other party or that party's attorney of the existence” of “additional material. ”  Unquestionably, delaying the disclosure until openings and two witnesses' testimony had been completed does not comport with the Rule's requirement of prompt notification.
[brief] [...] testified that the inclusion in the deed of general all-encompassing provisions conveying “. . . all the estate, right, title, interest, property, claim and demand whatsoever of the said party of the first part of, in, and to the same, and of, in and to every part and parcel hereof” shows that the [...] intended to convey whatever right, title and interest it held in the Property (including the Quinlan Tract) to [...].  See 6T, p. 36.  This interpretation is consistent with common sense.  In [...]’s view, [...] intended to convey all of its rights in the uplands to its agent/employee [...], but intended to retain its ownership rights in the Quinlan Tract even though this land was underwater and it had no practical way to access the riparian lands if did not retain rights in the uplands.
[brief] New arguments raised by [...] on appeal should be disregarded and are irrelevant to the trial court’s determination that the Ordinance is preempted by state law.  [...] raises new arguments on appeal that were not raised below, arguing that the trial court erred in its interpretation of N.J.S.A. 48:2-23, N.J.A.C. 14:5-7.1, and N.J.A.C. 14:3-8.5(d).  None of these regulations and statute are applicable to the trial court’s determination of whether the Ordinance is preempted by state law and were not relied upon by the trial court in its preemption analysis.  Consequently, [...]’s arguments are irrelevant to the judgment of the case and should be disregarded by this Court.
[directive] The forfeiture law also provides that the entity prosecuting the case shall divide the forfeited property or any proceeds resulting from the forfeiture with any other law enforcement agency that participated in the surveillance, investigation, arrest or prosecution resulting in the forfeiture.  Distribution of forfeited property or any proceeds among participating agencies will be in proportion to that agency's contribution to the case.  Such forfeited property and proceeds shall be used solely for law enforcement purposes.  Destruction of Property.  "Prima facie contraband" may be destroyed after entry of judgment or dismissal of the criminal proceeding, including the appeal process, if it can serve no lawful purpose or it presents a danger to the public health, safety or welfare.  In any case involving a bulk seizure of a controlled dangerous substance, the prosecuting authority may apply to the trial court for an order to destroy all or some portion of the seized substance before the completion of criminal proceedings.  If the law enforcement agency has such a bulk seizure and wants to destroy it, the agency should contact the prosecutor handling the case.  Documentary exhibits shall be destroyed only after the clerk of the court has posted a notice in the county describing the exhibit and indicating the date after which the exhibit will be destroyed.
[brief] Applying New Jersey law, the arbitration provision of the Wholesaler Agreement is void and unenforceable.  As is the case for any agreement, the Supreme Court of New Jersey has determined that “any contractual waiver-of-rights provision must reflect” that the parties “clearly and unambiguously” agreed to its terms.  Atalese v. U.S. Legal Services, Group, L.P., 219 N.J. 430 (2014).  Where a party is waiving their right to pursue claims in a court, such waiver must be clearly and conspicuously stated and assented to by the contracting party.  Id. at 447.  More recently, as determined by the Appellate Division in [...], these same principles apply even to sophisticated parties entering a commercial contract if the parties do not possess comparatively equal bargaining power.  See [...] v. [...], 474 N.J. Super. 498 (App. Div. 2023).  Specifically, in [...], the Appellate Division determined that the County entered into an arm’s length agreement with [...] concerning the County’s self-funded health benefit plan.  Id. at 496-97.  However, the Appellate Division made clear that Atalese and its progeny “focus on the unequal relationship between the contracting parties or the adhesional nature of the contract when holding an arbitration agreement could not be enforced without an express waiver of the right to seek relief in a court of law. ”  Id. at 503.
[brief] 7.  I also tried to contact [...] several times during this time period, but my phone calls and email communication went unanswered.  ([...] later told me he had not returned my calls because he had been in consecutive trials on two cases.)  8.  After I received a copy of the proposed Order from [...], I told [...] that subject to minor revisions (which [...] accepted), Defendant had no objection to the entry of the Order, provided that it was entered by the Court without modification.
[brief] Landlord’s brief confirms there are no real material facts in dispute.  Landlord does not dispute, for instance, that the Lease required it to pay Tenant $730,000 over the course of six annual installment payments as reimbursement for the substantial build-out work Tenant did on the property before the Lease commenced.  Landlord does not dispute that it elected to skip two of these installment payments, and to forgo paying interest on a third--amounting to more than a quarter-million-dollar windfall to Landlord--and did so based on Tenant’s temporary monetary default that, undisputedly, has since been cured.  Landlord identifies no language in the Lease that justifies this permanent forfeiture.
[brief] Docket No. [...] TEAM 02  Dear [...]: [...], Esq., attorney for Respondent/Cross Appellant [...], joins in on the brief on behalf of Defendants/Respondents/Cross Appellants  [...] and [...] filed by [...], Esq. on October 11, 2023.  Thank you.  Respectfully submitted, [...] [...]  [...], Esq.  JJB/ab cc.  [...], Esq. (via E-Courts and email)  [...], Esq.  (via E-Courts and email)  [...], Case Manager (via E-Courts and email)  [...]  By: [...], Esquire (ID#:022301979)