ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] CONCLUSION:  For the foregoing reasons and authorities cited in support thereof, it is respectfully requested that this Appellate Court reverse the Trial Court and declare the challenged Ordinance, the Redevelopment Plan that it adopts, and the zoning standards they collectively create, as all illegal and *ultra vires* as violating the Common Law Public Trust Doctrine, the Statutory Public Trust Doctrine, and the NJDEP’s Administrative Public Access Rule, and further permanently enjoin Respondents from applying, promulgating and/or enforcing such illegal and *ultra vires* standards.
[brief] The trial court wrongly upheld the Board’s denial (Pa16)  A local land use board’s factual determination must be based on substantial evidence.  Ten Stary Dom P’ship v. Mauro, 216 N.J. 16, 33 (2013).  This standard is not satisfied by conclusory recitation of variance criteria in a resolution, as here.  Edison Bd. of Educ. v. Zoning Bd. of Adjustment of Edison, 464 N.J.Super. 298, 308 (App. Div. 2020).  The Court cannot possibly discern the factual basis of the Board’s denial from the Board’s conclusory resolution and the denial should be reversed on that basis alone.  Id.
[brief] See, e.g., Sklodowsky v. Lushis, 417 N.J. Super. 648, 655 (App. Div. 2011) (“The purpose of the [entire controversy] doctrine is to prevent piecemeal decisions, promote fairness to the parties, and advance the goal of judicial efficiency. ”) (citation omitted).  It is true that, under the circumstances of this claim, the entire controversy doctrine could not properly be invoked to bar [...]’s contribution claim, as was observed by the trial court when denying the Motion to Amend the judgment.  See Hoelz, 473 N.J. Super. at 63 (observing that “neither the plaintiff nor the defendant need name a potential joint tortfeasor as a party in the underlying suit to preserve a contribution claim. ”) (citation omitted).
[brief] 16  Rankin v. Sowinski, 119 N.J. Super. 393 (App. Div. 1972) .................. 16  Ridenour v. Bat Em out, 309 N.J. Super. 634 (App. Div. 1998)  ............ 37 Rigatti v. Reddy, 318 N.J. Super. 537 (App. Div. 1999) ...................... 36  Rosenblit v. Zimmerman, 166 N.J. 391 (2001)  ............................... 19, 30, 31 Russell v. Merck & Co., 211 N.J. Super. 443 (App. Div. 1986)  ............ 36, 37 Snyder v. I. Jay Realty, 30 N.J. 303 (1959) ................................. 36, 37 Taneian v. Meghrigian, 15 N.J. 267 (1954) ................................. 36, 37 Viggiano v. William C. Reppenhagen, Inc., 55 N.J. Super. 114 (App. Div. 1959)
[brief] (As will be discussed below, retroactive application of the Statute is appropriate in any event.)  The Second Count also asserts, falsely, that [...] failed to apply the payment it received to affected employees’ wages, and that [...] failed to renegotiate the parties’ contract, as if there was a requirement that it do so.  It also asserts, somewhat incredibly, that the COVID Statute actually prohibits the enforcement of the parties’ contract as written, and that it imposed upon [...] a requirement that it “renegotiate” the contract, although the contact was awarded through public bidding and never “negotiated” in the first place.  The Second Count further asserts that the COVID Statute is an unconstitutional impairment of contract; that [...] violated the Public Schools Contracts Law (N.J.S.A. 18A:18A-40) by changing the terms of the contract; that [...] deprived [...] of the right to vote on a renegotiated contract; that by requesting payment without providing services [...] violated the statute of frauds (N.J.S.A. 25:1-15); that there was a lack of consideration for the payment [...] made to [...]; and that [...]’s request for payment in accordance with the COVID Statute is unconscionable.
[brief] In late December 2021, however, plaintiffs went to the [...] under an OPRA request and obtained 729 pages of documents, and obtained significant records that had been withheld or not reviewed in discovery with [...]; and it was then that plaintiffs added substantive counts against [...] in the SAC.  Pa3088 (motion to file SAC).  In the FAC and SAC, Counts 1 through 9 were retained as filed by plaintiffs through their prior counsel.  In the FAC, Counts 10 to 15 were added.  In the SAC, we then added Counts 16 to 18 based upon the evidenced-based suspicions and conclusions reached from the OPRA records.  The new counts in the SAC allege CEP defendants and [...] conspired and acted in furtherance of their conspiracy.  Indeed, [...] enabled CEP to steal plaintiff’s business assets by breaching the CONFIDENTIALITY covenant in the lease and feeding plaintiff’s information to [...] in violation of the lease.  Those facts are stated in the proposed Second Amended Complaint and explicated in the brief filed October 7, 2021.
[brief] The court credited the testimony of expert [...] and defendant’s trial counsel, but said that petitioner was not “fully credible” in all respects.  DA73-74.  With regard to the ballistics issue, “[t]he Court does not find that the trial counsel was ineffective,” ruling that “the claim raised by the Petitioner that the trial counsel's decision to not cross examine the State's ballistics expert or consult a ballistics expert was merely a complaint based on matters of trial strategy.  The Court finds that the Petitioner did not sufficiently show that trial counsel demonstrated ineffective assistance of counsel under the first prong of the Strickland standard. ”  DA82.  Though believing prejudice under the second prong of Strickland was irrelevant because of the failure under the first prong, “the Court maintains that the trial would have not yielded a different result because the ballistics expert's testimony did not contradict the defense's trial strategy. ”  DA82.  With regard to the voir dire issue, the court said that “Petitioner's claim that trial counsel's decision to not request a voir dire of the remaining jurors was merely a complaint based on matters of trial strategy. ”  The court noted that trial counsel “testified that the decision not to conduct the voir dire prevented unnecessarily highlighting a non-testifying witness recognized by a juror through a limited relationship.  Additionally, The Appellate Court determined that this Court acted within its discretion when it determined not to conduct a voir dire of the panel after the juror was excused.  For the reasons stated above, Court finds that the Petitioner did not sufficiently show that trial counsel demonstrated ineffective assistance of counsel under the first prong of the Strickland standard. ”  DA86.  Prejudice was again irrelevant, but “the Court maintains that the trial would not have yielded a different result because the Petitioner's claim that the jury could have been impartial is not supported by the testimony of the trial counsel, the determination of the Appellate Court, or the discretion of this Court at the time of trial.  Therefore, the Petitioner did not meet the second prong of the Strickland standard. ”
[brief] Plaintiffs appealed, arguing that the NBR should no longer apply when an inexperienced entity with no proven track-record in the enterprise it undertakes seeks lost profits.  By Opinion and Order dated November 6, 2020, the Appellate Division rejected Plaintiffs’ arguments and affirmed the trial court’s Orders.  Pa 1221  On April 21, 2021, the Supreme Court granted Plaintiffs’ Petition for Certification.  In an August 17, 2022 Opinion, the Supreme Court initially “concurred with the trial court and the Appellate Division that the development projects that gave rise to both cases\(^2\) constituted new businesses.
[brief] | TABLE OF JUDGMENTS, ORDERS AND RULINGS  JUDGMENTS, ORDERS AND RULINGS  Superior Court of New Jersey, Law Division, Special Civil Part, Essex County Order for Judgment for Possession After Trial in [...] dated March 12, 2024................................................................................Da25  Superior Court of New Jersey, Law Division, Special Civil Part, Essex County Order for Denial of Motion to Reconsider in [...] dated April 2, 2024................................................................................Da28 Superior Court of New Jersey, Law Division, Special Civil Part, Essex County Order for Orderly Removal in [...] dated April 2, 2024................................................................................Da29 # TABLE OF AUTHORITIES ## CASES | Case Name | Pages | |------------------------------------------------|-------| | 447 Associates v. Miranda, | 11 | | 115 N.J. 522 (1989) | | | Chase Manhattan Bank v. Josephson, | 11 | | 135 N.J. 209 (1994) | | | Fromet Properties Inc. v. Buel, | 11 | | 294 N.J. Super 601 (App. Div. 1996) | | | Hale v. Farrakhan, | 11 | | 390 N.J. Super 335 (App. Div. 2007) | | | Levine v. Seidel, | 14 | | 128 N.J. Super 225 (App. Div.) cert. denied | | | 65 N.J. 570 (1974) | | | Manalapan Realty v. Manalapan Twp. Comm., | 10 | | 140 N.J. 366 (1995) | | | Marini v. Ireland, | 14 | | 56 N.J. 130 (1970) | | | Passaic Housing Auth. v. Torres, | 14 | | 143 N.J. Super. 231 (App. Div. 1976) | | | Sudersan v. Royal, | 11 | | 386 N.J. Super 246 (App. Div. 2005) | | | Village Bridge Apartments v. Mammucari, | 11 | | 239 N.J. Super 235 (App. Div. 1990) | | ## NEW JERSEY STATUTES | Statute | Pages | |----------------------------------------------|-------| | N.J.S.A. 2A:18-61.1 | 11 | | N.J.S.A. 46:8-49.2(a) | 14, 15| | N.J.S.A. 46:8-49.2(c) | 14 | TABLE OF CONTENTS TO APPENDIX Tenancy Summons and Complaint, Docket No. [...] filed on January 25, 2024 .................................................................Da1
[brief] As to the claims that defendant maintains in the instant appeal, first, the PCR court questioned whether defendant’s argument regarding the proportionality of his sentence was even cognizable on a PCR petition.  (21T13-24 to 14-2).  The court cited Rule 3:22-2(c), authorizing PCR claims for an unlawful sentence either by themselves under certain circumstances or with other claims, and found that the alleged disproportionate sentence did not mean that it was an unlawful sentence.  (21T14-2 to 9 (citing State v. Hyland, 238 N.J. 135 (2019)).  Even if it was cognizable, the court found it was procedurally barred by Rule 3:22-5, barring grounds expressly adjudicated, and noted that defendant’s resentence was affirmed on appeal.  (21T14-10 to 14).  The court further found that in the event that the argument was not raised in a prior proceeding, but could have been, the claim also was procedurally barred by Rule 3:22-4.  (21T14-14 to 17).  Even further, the court denied defendant’s claim as meritless, finding defendant was convicted of multiple first- and second-degree crimes, many with periods of mandatory parole ineligibility, and the co-defendant pled guilty to a single offense.  (21T14-18 to 23).  Under the case law, the PCR court ruled “it’s just apples and oranges here, so there’s no basis for relief”.  (21T14-23 to 15-2).
[brief] [...]’s payment of the initial franchise fee on April 9, 2014 confirms that [...], Inc., with [...] as the managing partner, was the sole franchisee of [...].  Perhaps the State said it best in its summation when discussing the [...], Inc. bank account:  “And, most importantly, [...] controlled the [...] account.  He's a signatory on that account.  That gives him rights. ”  (7T 64:4 to 64:6).  Moreover, the State’s contention that these documents were “obviously fraudulent” and “more than likely forged,” (Sb3), is essentially an acknowledgment that the documents are material and exculpatory.
[brief] LEGAL ARGUMENT I.  WHETHER THE ARBITRATION AGREEMENT SHOULD BE ENFORCED IS SUBJECT TO A DE NOVO STANDARD OF REVIEW (Da080; Da162-Da163)  “De novo review applies when appellate courts review determinations about the enforceability of contracts, including arbitration agreements. ”  Kernahan v. Home Warranty Adm’r of Fla., Inc., 236 N.J. 301, 316 (2019); see also Atalese v. U.S. Legal Servs. Grp., L.P., 219 N.J. 430, 446 (2014) (an appellate court’s “approach in construing an arbitration provision of a contract is governed by the same *de novo* standard of review”).
[brief] Citing State v. Inglis, supra, trial counsel stated that, “if you’re going to raise a psychiatric defense in a drunk driving case, that evidence is inadmissible and should not be heard by the Court. ”  5T45-17/20; see 5T46-5/18.  This colloquy followed:  [...]:  ****  I’ve made a determination based on my understanding of the law that Your Honor would not admit it, the prosecutor would object, it’s improper testimony and just can’t be part of the case based upon the case law.  If I thought it was going to help my client and be admissible, I’d take a different position, and my client disagrees with me on that, and he wanted Your Honor to know about that, not as substantive evidence, only just for the purpose of building a record, and I would ask Your Honor not to consider it as evidence.
[brief] (2T 79-2 to 8)  Accordingly, the court denied [...]’s motion to suppress.  LEGAL ARGUMENT POINT  I BECAUSE THE OFFICERS’ INVESTIGATORY STOP VIOLATED PEARSON’S CONSTITUTIONAL RIGHTS, THE FRUITS OF THE ILLEGAL STOP MUST BE SUPPRESSED.  (2T 64-2 to 82-7; Da 12)  Both [...] and [...] testified that there was no reason to believe that [...] engaged in any criminal activity at the time of the stop.  Instead, the officers stopped [...] for the sole purpose of locating and arresting a suspected drug dealer.  Although the court itself admitted that, had [...] remained stationary during the stop, “we wouldn’t be here today,” it still concluded that the officers had the requisite suspicion to detain him.  (2T 75-9 to 11, 79-9 to 23)  Further, because [...] briefly fled from the stop, the court found that there was probable cause to justify the arrest and search.  (2T 81-15 to 82-5)  But the stop of [...] was not supported by individualized suspicion of any kind—merely speaking to a suspected drug dealer is not sufficient.  Because this stop violated [...]’s constitutional rights, the resulting physical evidence must be suppressed, and the court’s order admitting this evidence must be reversed.  See Wong Sun v. United States, 371 U.S. 471, 487-88 (1963).
[brief] (Ra126; Ra173; Ra181-82).  Rather, the Board’s “involvement with budget development is minimal,” (Ra183), and Board members were “not entirely familiar with [budget] details. ” (Ra184).  Also, the Board President has effectively abdicated his role and responsibilities to the Board’s attorney, permitting the Board attorney to control the board’s operations.  (Ra133; Ra173; Ra180).  In turn, [...]’s “legal expenses per pupil are significantly higher than” comparable districts.  (Ra127; Ra173; Ra191).  In the 2021-2022 school year, [...]’s per pupil legal costs were over four times higher than the next largest comparison districts.  (Ra171; Ra191).  To the extent that underfunding is a cause of the lack of T&E in the District, that problem is attributable to [...], not the SFRA.
[brief] The trial court properly prevents Appellants from seeking a declaratory judgment in a damages suit they litigated for over two years.  The right to a declaratory judgment is statutory in nature.  *N.J. Dept. of Envtl. Prot. v. Occidental Chem. Corp.*, 2015 N.J. Super. LEXIS 230 at *26 (N.J. Sup. Ct. Jan. 13, 2015) (*citing* N.J.S.A. 2A:16-50, et seq.).  “While a declaratory judgment is not precluded where another remedy is available, the relief ‘can be denied where another remedy would be more effective or appropriate. ””  *Id.* at *26-27 (quoting 966 Video, Inc. v. Mayor and Twp. Committee of Hazlet Twp.,* 299 N.J. Super. 501, 512 (Law. Div. 1995).  In *Occidental,* the court dismissed defendant’s claim for declaratory judgment where the claim was “based on the same underlying causes of action in the counts alleging its contract claims.
[brief] On the Brief: [...], Esq. (028711985)  [...], Esq. (pro hac vice)  [...], Esq. (pro hac vice forthcoming)  [...], Esq.  (012431974)  TABLE OF CONTENTS  Page  TABLE OF ORDERS, JUDGMENTS AND DECISIONS ...........................................  iii  TABLE OF AUTHORITIES ..................................................................................  iv  PRELIMINARY STATEMENT ..............................................................................  1  PROCEDURAL HISTORY ....................................................................................  4  STATEMENT OF FACTS .....................................................................................  4  A.  Long-term care insurance generally ..........................................................  4  B.  The long-term care insurance policies here ...............................................  6  C.  The applicable statutory and regulatory framework .................................  7  D.  The Department’s denial of [...]’s 2020 rate increase applications, and [...]’s challenges that led to this appeal ...............  9  ARGUMENT
[brief] Those “provisions ensure that everyone charged with a crime has an absolute constitutional right to a fair trial in an atmosphere of judicial calm, before an impartial judge and an unprejudiced jury. ”  State v. Tyler, 176 N.J. 171, 181 (2003) (internal quotations and citation omitted).  A “trial is poisoned . . . if the jurors deciding the case cannot review the evidence dispassionately, though the light of reason. ”  *State v. Fortin*, 178 N.J. 540, 575 (2004).  For these reasons, a “defendant’s right to be tried before an impartial jury is one of the most basic guarantees of a fair trial.
[brief] This case is therefore the opposite of *Balsamides* in that regard.  There were no unremedied “equities” weighing in favor of discounting fair value, and certainly none based on the past misconduct the Court cited.  (Pa3204)  While the Plaintiffs here perpetually argued that [...]’s wrongful conduct justified a discount, they completely ignored, unlike *Balsamides*, they got separate monetary relief for any and all such conduct throughout the entire arbitration and including the Final Award.
[brief] “DUE TO THE AREA. ”  In arguing that there was reasonable suspicion to stop [...] and his friends, the prosecutor simply reiterates the trial judge’s findings – “it was not reasonable to assume these individuals were just hanging out on a cold winter night on the street” and [...] observed “conduct consistent with drug distribution” (Sb 9, 11)¹ – without addressing any of the challenges to those findings that [...] raised in his brief: (1) the BWC footage demonstrated that it was reasonable to assume that [...] and his friends were “just hanging out”; and (2) [...]’s testimony about an unspecified number of unknown pedestrians ¹ “Sb”  State’s brief approaching and one of the men “breaking away” and “concealing” himself between parked cars was too vague and conclusory to establish reasonable suspicion of narcotics activity.  As discussed at length in his opening brief, the BWC footage shows [...] and his friends standing in front of the porch of a row house, with a grocery bag and a bottled beverage, eating chips.  The prosecutor did not explain why it was “not reasonable” to assume the men were just socializing when the BWC footage shows the men doing just that.  Nor did the prosecutor address the lack of specificity as to the conduct that [...] said he witnessed before activating his BWC.  [...] testified that he saw pedestrians approach the men but he did not say how many.  Nor did he say that any of the alleged pedestrians were know drug users.  He testified that one of the men “would break away” from the group and walk with the pedestrians between two parked cars in order to “conceal themselves” but he did not say how many times this occurred or what he meant by “conceal. ”  He never said he saw the individuals bend or crouch down, out of view; thus, the only reasonable inference to draw is that they simply walked between two parked cars as they were talking.
[brief] ” (Pa100).  Such an allocation of customers by competing non-exclusive distributors would be a *per se* violation of the antitrust laws and demonstrates [...]’s open disregard for the law when making demands of its distributors.  See United States v. Topco Assocs., Inc., 405 U.S. 596 (1972) (“classic examples of per se violation of [Section 1 of the Sherman Act] is an agreement between competitors at the same level of the market structure to allocate territories. ”).  On October 4, 2022, Appellants each received letters purportedly from [...] entitled Notice of Deficiency and Pending Termination (each letter lacked Sapporo’s letterhead), which were replete with false allegations, erroneous data, and speculative conclusions (the “October 4 Notices” or the “Notices”).
[brief] Indeed, the Board does not dispute Plaintiffs’ legal right to file the underlying Order to Show Cause and to request injunctive relief, which the statute clearly authorizes.  However, the statute does not state or contemplate that every time Plaintiffs request a temporary injunction in a matter pertaining to the NJLAD, that the applicable law underlying Plaintiffs’ claim is to automatically be considered settled in their favor.  Rather, “a plain reading of the statute…simply allows [Plaintiffs] the option to file the summary action or not file the summary action. ”  Sashihara v. Nobel Learning Cmtys., Inc., 461 N.J. Super. 195, 207 (App. Div. 2019).  In other words, the Court was not asked to analyze whether Plaintiffs had a well-settled right to request an injunction, but rather, whether the legal right underlying their claims is well-settled; not, as the Court states, Plaintiffs’ legal rights to simply file an action in the first place.
[brief] ”  *State v. Johnson*, 120 N.J. 263, 281-82 (1990) (citation omitted).  For example, in *Johnson*, the Supreme Court held that officers were required to clarify whether a suspect invoked his right to silence where “[h]e persisted, for well over an hour, in a pattern of prolonged silences and unresponsiveness. ”  *Id.* at 284.  Finally, the Supreme Court has called a suspect’s request to “go home” an “assertion about wanting to leave” and suggested that it would constitute an invocation of silence if communicated to the interrogators.
[brief] Da073 Exh U (Email of [...], Esq. to [...] dated May 24, 2023-Redacted As Redundant)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  Da069 Exh V (Plaintiff’s Letter to Defendant, [...] dated June 6, 2023-Redacted As Redundant)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  Da075 Exh W (Order to Show Cause With Temporary Restraints entered by the Hon. [...], J.S.C. on June 21, 2023-Redacted as Redundant)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  Da100 Exh X (Stipulation of Dismissal as to Defendants, [...] d/b/a [...] and [...] filed September 29, 2023—Redacted as Redundant)
[brief] Consistent with R. 4:28-1(a)(2)(ii), Plaintiff should have therefore named/joined as defendants the specific individuals who could have been adversely impacted by Plaintiff's action in terms of promotion and/or seniority or other benefits.  Plaintiff should have also joined those individuals whom its action sought to benefit by way of the demanded LAD equitable and compensatory damages.  Plaintiff's failure to again do so also required the dismissal of its Second Amended Complaint.