ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Although it amounts to a constitutional seizure, an investigatory stop is valid if the officer has “particularized suspicion . . . meaning ‘[t]he stop must be reasonable and justified by articulable facts; it may not be based on arbitrary police practices, the officer’s subjective good faith, or a mere hunch. ’”  State v. Shaw, 237 N.J. 588, 612 (2019) (citing State v. Chisum, 236 N.J. 530, 545 (2019) and quoting State v. Coles, 218 N.J. 322, 343 (2014)).  “There 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)).  [...] and [...] conducted an investigatory stop of [...] when they ordered him not to move.  See State v. Williams (Williams II), 410 N.J. Super. 549, 554-55 (App. Div. 2009) certif. denied, 201 N.J. 440 (2010) (finding it “undisputed” that defendant was subject to an investigatory stop when police ordered him to stop); State v. Crawley, 187 N.J. 440, 444-45, 450 (2006) (holding defendant was subject to an investigatory stop after police said, “Police. Stop. I need to speak with you”); State v. Stovall, 170 N.J. 346, 355 (2002) (confirming that a person is seized when “a reasonable person would have believed that he [or she] was not free to leave”).
[directive] A.  The law enforcement agency requesting the unsealing shall obtain an order from the wiretap judge authorizing the transportation of the wiretap tapes intact to the trial judge and the unsealing of the container by the trial judge.  B.  Only the trial judge shall break the seal on the container and thereafter said judge shall assume continuous responsibility for the container and tapes until they are resealed following their use in the judicial proceeding.  C.  Upon completion of the judicial proceeding the trial judge shall reseal the tapes and documents in the container pursuant to Guideline 5 and order the law enforcement agency that originally requested the unsealing to retain the container pursuant to Guideline 6.
[brief] 2  As required by Rule 1:36-3, the undersigned certifies that he is unaware of any contrary unpublished opinions.  PROCEDURAL HISTORY AND COUNTERSTATEMENT OF FACTS  Appellant, [...], appeals from two trial court orders concerning Defendants, [...], [...], [...], and [...] (collectively “the State Defendants”): a February 15, 2023, order dismissing his civil rights complaint with prejudice (Pa65-66), and an April 14, 2023, order denying his subsequent motion for reconsideration.  (Pa124-Pa125).  Mosley also appeals from a December 1, 2023, order that granted summary judgment to co-defendants [...], [...], and [...] (collectively “Edison Defendants”).  (Pa263-Pa264).  Factual Background
[brief] Although it talks in terms of “intensity” and not explicitly off-site traffic, it is clear that the Board used that potential impact to deny the Application.  While zoning boards of adjustment may consider potential off-site traffic impacts, those concerns are only one factor for the denial of even a use variance.  See Dunkin’ Donuts of N.J., Inc. v. North Brunswick Planning Bd., 193 N.J. Super. 513, 514-15 (App. Div. 1983).  Couching traffic concerns in terms of intensity does not permit the Board to ignore that the use is permitted—a use envisioned for the Property.  Even if it did, as provided ad nauseam above, the requested height variance does not de facto equate to increased traffic.  From a traffic generation perspective, square footage, not height, is the independent variable.  See 3T 26:3-21; 31:19-25 through 33:1-3; 4T 58:6-11; see also Sections III(B)(1) & IV(A)(1).  Similarly, the Board’s attempt to disguise traffic concerns in terms of intensity fails to recognize that the proposed driveway is 1.5 miles from the Florence-Columbus Road and Route 130 intersection; that said intersection is solely within State and County jurisdiction; and 80% of the traffic generated from the project will travel away from Florence and never reach that intersection.  (2T 7:20-25; 8:1-3; 5T 111:18-25).  The Defendant had substantial credible evidence before it that the height of a warehouse does not impact traffic generation, and that the taller buildings would be consistent with the 1999 Master Plan.  It had no evidence to the contrary.  Accordingly, the Board’s equally heavy reliance upon the theory that height is a proxy for intensity of use, is wholly devoid of evidentiary support.  The Board’s decision was arbitrary, unreasonable and capricious, and must be reversed.
[brief] [...] had his badge around his neck when he approached defendant and informed him of [...]’s observations and the CDS-related investigation they were conducting.  (1T76-18 to 23).  He then patted defendant down and informed him of his Miranda rights.  (1T85-8 to 11).  Defendant “responded that he understood his rights” and was willing to cooperate.  (1T76-23 to 77-20; 1T85-16 to 17).  [...] testified he then, “asked him if he had anything in the car which he shouldn’t be in possession of.  . . .  He told me there was a small amount of cocaine in the back. ” (1T89-8 to 12).  And both [...] and defendant testified that defendant told the officers anything found in the car was his.  (1T91-25 to 92-1).  These admissions, in conjunction with [...]’s observations, immediately escalated the suspicion to the probable cause required to search defendant’s vehicle.
[brief] In concluding that such redaction was not warranted, the trial court relied on State v. Kucinski.  227 N.J. 603 (2017).  There, our Supreme Court held that defendant did not invoke his right to remain silent by responding “[a]h, let’s not talk about that part,” “we’ll forget about that part,” “it doesn’t matter,” and “I don’t remember” in response to certain questions.  Id. at 623.  The Court explained that the defendant had “waived his right to remain silent” at the outset of the interview, and that these responses were “not an attempt to end the dialogue, but rather [] part of an ongoing stream of speech. ”  Id. at 622-23 (citation omitted).
[brief] *Vineland Const. Co. v. Twp. Of Pennsauken*, 395 N.J. Super. 230, 256 (App. Div. 2007).  An action is arbitrary, capricious, and unreasonable when it is a “willful and unreasoning action, without consideration and in disregard of circumstances. ”  *Seaview Harbor Realignment Comm., LLC v. Twp. Comm. of Egg Harbor Twp.*, 470 N.J. Super. 71, 95 (App. Div. 2021) (citing *D’Anastasio Corp. v. Twp. of Pilesgrove*, 387 N.J. Super. 247, 251 (Law Div. 2005); see also *CBS Outdoor, Inc. v. Borough of Lebanon Planning Bd./Bd. of Adjustment*, 414 N.J. Super. 563, 578 (App. Div. 2010) (“The court’s authority and duty is to review the record before the Board in order to determine whether the Board’s decision was adequately supported by the evidence”).  Where two conclusions may be reached, a decision is valid “when exercised honestly and upon due consideration, even though it may be believed that an erroneous conclusion has been reached. ”  *Worthington v. Fauver*, 88 N.J. 183, 204-05 (1982).  The Borough made a reasoned decision to adopt the Ordinance based on all the evidence before it.  Because [...] cannot demonstrate that the Borough’s decision was “arbitrary, capricious, or unreasonable,” this Court should affirm the Trial Court’s Order.
[brief] THE TRIAL COURT PROPERLY SANCTIONED PLAINTIFFS FOR THE FILING OF THE 2020 COMPLAINT AND PROPERLY AWARDED THE COOPER LEVENSON DEFENDANTS’ ATTORNEYS’ FEES (190a-203a; 209a-232a)  After being served with plaintiffs’ frivolous 2020 Complaint, the [...] defendants issued a R. 1:4-8 letter to plaintiffs’ counsel on April 24, 2020 demanding the withdrawal of the Complaint filed before this Court.  (SDa 1).  However, plaintiffs refused to do so, leading to the proper dismissal of the 2020 Complaint and the granting of attorneys’ fees and sanctions.
[brief] --- ⁹  Respondent hereby adopts the Transcript Designations footnoted in Appellant’s Brief at page five (5).  A charge conference was held on October 5, 2023, relative to the Jury Charge that would be instructed at the conclusion of the case; anticipatedly the following day, October 6, 2023.  (3T: 295:02 – 326:06).  During said conference, the Court heard argument relative to Appellant’s request for a non-standard jury charge, specifically “If a driver is operating his/her car as would a reasonably prudent person under the circumstances, he/she is not to be held negligent merely because his/her car skidded or slid, resulting in damage or injury to another.
[brief] Before doing so, the court must find a “direct and unavoidable conflict exists” that is both “patent and sharp. ”  The court must be convinced that the other regulations “deal specifically, concretely, and persuasively with the activity, “implying a legislative intent not to subject parties to multiple regulations that…will work at cross-purposes. ”  *Lemelledo* at 270.  [...] argues that language in the RETA “triggers” RETA’s superiority over the CFA.
[brief] ”).  The Settlement Agreement does not contain a covenant not to sue because the parties did not need one.  The plain language of the Settlement Agreement includes a release of claims about amendments, claims about fees, “[...]-related” claims, and claims that settlement class members could bring “in the future. ”  Settlement Agreement, § 1.29 (Pa000044).  A covenant not to sue would be superfluous, a finding contrary to contract construction principles.  Cf. Josefowicz, 32 N.J. Super. at 590 (requiring a court to give “every part” of a contract meaning to accomplish the contract’s purpose).  The more reasonable—and correct—interpretation of the unambiguous language in Sections 1.29, 2.1, and 5.2 is that the settlement class released all claims accruing in the future that “relate to” [...], amendments, or fees.
[brief] ”  The Trial Court was also correct in not accepting Plaintiff’s argument that there is a distinction between a “claim” and an assignment of the “proceeds of a claim”.  The Trial Court reasoned that “neither the New Jersey Supreme Court or Appellate Division have rendered any decision as to the distinction between claims and proceeds and thus, this Court must follow the general rule that a claim for damages in tort is not assignable before judgment regardless of whether the language concerns a claim or proceeds. ” (T1 9:2 – 8).  Plaintiff cited to one case before the Trial Court to make the distinction between the assignment of a “claim” versus the assignment of the “proceeds of a claim. ”  The plaintiff cited to Granata v. Broderick, 4456 N.J. Super. 449 (App. Div. 2016) affirmed, 231 N.J. 135 (2017) for the proposition that a plaintiff may pledge to debtor of a security interest in any future recovery in an action.  The Trial Court correctly reasoned that this case does not apply because N.J.S.A. 2A:25-1 was not discussed in that case.  Furthermore, the Trial Court noted that Granata involved an assignment under the UCC and there was no evidence in this case that there was compliance with the UCC.  The Trial Court in this matter did thorough research to find additional case law, not cited by the plaintiff, that might support the plaintiff’s argument that there is a distinction between an assignment of a ‘claim’, and the assignment of the ‘proceeds of a claim”.
[brief] Counsel’s “theme” was repeated throughout opening and closing despite knowing that Defendants played no role in determining whether to go to trial and regardless of all parties’ right to submit validly contested disputes to juries for resolution.  After advising the jury that it was its duty to make right what Defendants had refused to do, Plaintiff presented specific examples of harms for which Defendants had avoided responsibility.  Thus, over Defendants’ objection, Plaintiff made a lost wage claim without providing expert proofs to distinguish his admittedly unrelated and disabling medical conditions from any injury sustained in the accident.  In addition, despite his expert’s failure to opine that he required treatment subsequent to February 2021, during his testimony, Plaintiff “blurted out” that he recently had begun treating with a chiropractor, surprising both the defense and his own attorneys.  His subsequent testimony that he had not sought treatment sooner because he did not have insurance coverage was equally problematic and inconsistent with the fact that no medical expense claim had been made on his behalf.  Nonetheless, if it viewed the case in the manner directed by Plaintiff’s counsel during his opening statement and again on closing, the jury was led inevitably to conclude that Defendants had wrongfully deprived Plaintiff of both earnings and the ability to obtain medical care.  Linking those claims to Defendants’ alleged refusal to accept responsibility clearly had the capacity to inflame the passions of the jury, set them against the Defendants and deprive them of a fair trial.  The Defendants suffered as great, if not greater, prejudice when Plaintiff’s counsel was permitted to make a time-unit argument without having advised the defense in advance of his intention to do so.  As a result, the Defendants were deprived of any opportunity to counter Plaintiff’s argument that the time-unit calculation was “one of the few ways available to contextualize the extent of a personal injury,” practically guaranteeing that the jury would choose to use it to calculate its non-economic damage award.  Wherever the fault lay for the failure to apprise the defense of Plaintiff’s intention, it did not lie with the defense, and the trial court’s determination to permit the argument rather than “punish” the Plaintiff unfairly added to the advantage already enjoyed by Plaintiff as the party closing last.  The errors outlined above lead inexorably to the conclusion that the jury’s “unexpected” verdict was the product of such improper and irregular influences as to constitute a miscarriage of justice.  Thus, and as more fully set forth in the Points of Argument addressing each of them, it respectfully is submitted that those errors require that the orders and judgments being appealed be reversed and a new trial ordered.
[brief] See, Allstate v. Lajara, [...].  The [...] intervened in the case and after years of extensive discovery of parties, --- \(^6\)  See, [https://www.nj.gov/oag/insurancefraud/report/oifp-ar-2018-complete](https://www.nj.gov/oag/insurancefraud/report/oifp-ar-2018-complete) non-parties and numerous financial institutions, in 2016, after a six-month trial, [...] was found to have laundered $3.29 million in cash, paid for the referral of patients, performed unnecessary testing to increase his financial position, and over-diagnosed patients to manufacture a basis to refer for additional testing and procedures for which he received kickbacks.  See, CAIFa0001-0048.7  Judgement was entered against him for $699,799 in compensatory damages and $2,295,300 in attorney’s fees and costs.
[brief] Toll Bros., Inc. v. [...], 173 N.J. 502, 557-58 (2002).  f.  The Trial Court’s Assertion That The Redeveloper Should Have Sought Alternative Relief Through A Variance Overlooks The Municipality’s Claim That There Was No Mechanism Available For Variance Relief By A Zoning Board, Rather The Only Option Was The Municipal Council Amending The Redevelopment Plan (13a, 21a)  The trial court asserted the Redeveloper could have pursued alternatives including variance relief.  The law is clear that there is no requirement to first seek, and be denied, zoning approval before obtaining relief from the Court.  In, Toll Bros., 173 N.J. at 559, the Supreme Court categorically rejected the municipality’s argument that the developer of affordable housing was required to “first seek approval for its development from the Township, thereby denying it the opportunity to hear the application. ”  Instead, the developer had no obligation to “apply[] to the Planning Board,” including because it was “not a good candidate for variances” considering the size and shape of the property.  Following Toll Bros, the Appellate Division in [...], 445 N.J. Super. at 228, rejected the claimed need to “exhaust any local administrative remedy. ”  When the municipality “instructed [developer] [...] to submit its proposal to the Planning Board,” the trial court “properly rejected the Township’s claim that [...] failed to exhaust administrative remedies by making a rezoning application to the Board. ”  Id.  The Appellate Division affirmed, holding the “Township’s arguments on this point are without sufficient merit to require further discussion. ”  Id.  Moreover, as set forth above here, the trial court overlooked that the Redeveloper did seek a variance, but [...] took the position that no variance relief was possible under the existing redevelopment plan.  It held any hearing on a variance in abeyance until such time as the [...] council changed the zoning ordinance or redevelopment plan.  The “alternative” proposed by the Court was already pursued and futile; it was no basis to deny relief.
[brief] The certification of the Bank’s employee [...], stating she has personal knowledge of [...]’s general business practices with respect to account opening or maintenance of deposit and checking accounts (Pa 26, Par. 3) does not state what these general business practices were or that they were followed in this instance.  The preparation of the application was not within her personal knowledge.  She admits that some of the information she sets forth in her certification was provided by persons working under her direction and supervision (Pa 27, Par. 4).  Why wasn’t any affidavit submitted to the court by the Bank employee who serviced [...] when he opened the replacement account?  The Bank did not state that person was unavailable.  When one looks at the history of lax practices of [...] in opening accounts set forth in the numerous cases cited in Plaintiff’s initial brief (Pb 13-15) and the way [...] was treated by [...] in servicing his original account and the replacement account, it can be readily inferred that any such affidavit would have only been adverse to [...]’s position.  [...] believes it does not have to advise its customers of the nature of what they are signing because Bank customers must fend for themselves.  There is a difference between stating that the relationship between a Bank and customer is one of debtor-creditor governed by contract and the proposition that it is common knowledge that when a customer opens an account he knows he is signing a contract with an arbitration agreement.
[brief] Per Litton Industries, Inc. v. IMO Industries, Inc., 200 N.J. 372, 387-88 (2009), RPC 1.5(a) requires an evaluation of the following factors when considering whether an attorney’s fee is reasonable in any context: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; (8) whether the fee is fixed or contingent.
[brief] Only four pages of the resolution are devoted to the testimony of [...]’s witnesses, while the majority of the Resolution tries to conjure perceived negative impacts from the project.  [Da126-129].  The Resolution is substantively deficient because it does not properly reflect the testimony and evidence presented at the hearing, and did not undertake the balancing test required by Sica, supra.  Its defects are discussed in the legal argument, infra.  F.
[directive] 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] Id. at 47-24 to 48-3.  As a matter of public policy, the absence of any requirement of wrongful intent highlights the need for a demand before liability can be imposed.  See e.g. Meisels, supra, 240 N.J. at 304-305.  Accordingly, Plaintiffs’ failure to demand the return of any property that was subject of their conversion claims requires the dismissal of those claims as a matter of law and a reversal of the Judgment against Defendant as to Counts 5 and 6 of the Amended Complaint.
[brief] DEP APPROPRIATELY ISSUED THE HAD DETERMINING THAT [...]’S PROJECT IS EXEMPT FROM THE HIGHLANDS ACT, AND ITS DECISION IS ENTITLED TO DEFERENCE.  The DEP’s decision to issue the HAD to [...] is owed deference.  The court’s review of agency decisions is limited.  Capital Health Sys., Inc. v. N.J. Dep’t of Banking & Ins., 445 N.J. Super. 522, 535 (App. Div. 2016) (citing In re Stallworth, 208 N.J. 182, 194 (2011)); In re N.J. Dep’t of Env’t Prot. Conditional Highlands Applicability Determination, Program Interest
[brief] PLAINTIFFS' RETIREMENT DATES ARE CRUCIAL TO DETERMINING THEIR VESTED RIGHTS.  As set forth in Point I above, terminal leave benefits vest upon the employee's separation from his or her employment.  As such, Plaintiffs' retirement dates and the dates of Defendants' actions in implementing the authority they received from the MSRA are crucial to resolving this matter.  In their opposition brief, Defendants attempt to argue that Plaintiffs' retirement dates are irrelevant because they all retired after November 9, 2016.  This was the date that the Local Finance Board voted 5-0 to assume, reallocate, and vest the powers of the governing body of [...] exclusively with then-Director of Local Government Services in the Department of Community Affairs, [...].  (Pa227-Pa228).  However, November 9, 2016 is an arbitrary date picked by Defendants years after this event.  November 9, 2016 is approximately four months before DLGS State Designee [...] issued a March 13, 2017 Notice of Implementation attempting to invoke his authority under the MSRA by stating that he was changing the terms and conditions of employment for [...] Police Officers.
[brief] Defendants argue that the LSRP “never testified that the Property was safe” and continue on to assert that, as of July 2023, further groundwater testing was required at the Property and therefore the LSRP could not determine whether the Property was “safe”.  (Db39-40).  This argument is an attempt to shift the burden of proof onto the Property owners when the applicable law requires that a municipality designating a property for redevelopment has the burden to show that the property meets the criteria in § 40A:12A-5.  *Hirth*, 161 (before a property or delineated area may be determined to be in need of redevelopment, “the governing body of the municipality must find at least one of the conditions set forth in N.J.S.A. 40A:12A–5”).  To meet its burden of proof a municipality “must establish a record that contains more than a bland recitation of applicable statutory criteria and a declaration that those criteria are met”.  *Gallenthin* at 373.  Further, the term “safe” is neither a regulatory nor industry standard which are based upon empirical data and numerical standards and not subjective words like “safe” and “clean. ”  It is Defendants’ burden to prove that the Property is detrimental to the safety and welfare of [...] residents.