ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[directive] Officers must recognize the heightened risk of positional asphyxiation and compression asphyxiation during restraint and be alert to any actions that must be immediately taken to avoid or minimize the risk of asphyxiation.  Positional asphyxia can occur when a person is restrained, handcuffed or left unattended in any position that impedes their ability to breathe normally, particularly in a prone position.  If the person cannot escape from the position, death may occur very rapidly.  Thus, in the course of using force officers shall be alert to the following heightened risk factors for positional asphyxiation: (a) alcohol or drug intoxication; (b) possible mental health episode or incident; (c) a substantially overweight individual; (d) possible suffering of respiratory muscle fatigue (exhaustion); (e) possible airway obstruction; and (f) unconsciousness.
[brief] (34T40-14 to 41-7)  [...] alleged Defendant told him various details about the murder, such as the weapon and car used and where they parked.  (34T67-14 to 69-5)  [...] initially denied having read about the murder of [...] in the newspaper but admitted that on March 15, 2018, he had placed a call to his fiancée where he told her he read about the murder “in the paper.
[brief] Plaintiff argues that the answer to this straightforward inquiry is yes, and respectfully requests that Your Honors reverse the trial court’s denial of its Order to Show Cause (“OTSC”) and remand the matter to the trial court to permit the enforcement of the agreed upon and memorialized settlement.  Simply put, the trial court erred in validating Defendant’s “buyer’s remorse” which came three weeks after the agreed-upon settlement was reached and memorialized, which was three weeks too late.  Additionally, despite Defendant’s belated “change of heart” and efforts to repudiate the agreed-upon and memorialized settlement, at no point after the hearing did defense counsel ever claim there was no settlement reached.  Instead, after receiving the proposed form of written Voluntary Retirement and Release Agreement (the “Agreement”) for comment and execution, defense counsel confirmed receipt and represented that he would be providing redlined edits shortly prior to Defendant’s execution.  Nonetheless, the trial court denied Plaintiff’s OTSC on rather confounding grounds relying exclusively upon the Age Discrimination in Employment Act (“ADEA”) waiver provisions of the Older Workers Benefit Protection Act (“OWBPA”) to give credence to Defendant’s late interposed change of heart.  Because the OWBPA only impacts whether an ADEA waiver is valid, the trial court misinterpreted this provision and erred in finding it permitted Defendant to unilaterally repudiate the entirety of the agreed-upon and memorialized settlement.  Consequently, based on the trial court’s mistaken reasoning, it found that, despite the fact that a settlement was reached, agreed to, and memorialized on the record, Defendant nevertheless had the right to repudiate the settlement three weeks later, based upon the OWBPA, an issue not addressed on the record memorializing the settlement, not argued or briefed below, and not consistent with applicable law.  Such a determination and refusal to uphold an agreed upon and memorialized settlement is entirely inconsistent with the law and public policy of this State, which favors the entry and enforcement of settlements.  Therefore, Plaintiff respectfully recommends that Your Honors reverse the trial court’s denial of its OTSC and enforce the agreed upon and memorialized settlement.  Defendant’s “buyer’s remorse” cannot and should not serve as a basis for invalidating an agreed upon and memorialized settlement contract.  A contrary result would have far-reaching consequences for settlements and concomitant public policy in this State.
[brief] As an initial matter, appellant argues that the Trial Court’s January 6, 2023 Order/[...]’s argument was limited to there being a lack of evidence to establish proximate cause.  However, this is wrong.  [...] also argued as Property owner of 165 [...] Avenue, no duty was owed to [...] as he was employee of [...] at the worksite.  The Trial Court agreed and based part of its January 6, 2023 decision to grant Summary Judgment as to [...] on that undisputed fact.
[directive] Preparing for the Presentation A. decedent.  The Independent Investigator—meaning the primary Meeting with family of the law enforcement entity on the investigation, as defined in the Independent Prosecutor Directive—will provide the family of the decedent with at least the three below-described opportunities to meet, if the family so desires.  As soon as possible after a fatal police encounter, the family will be given the opportunity to learn about the process.  This meeting will be conducted by a family liaison, an investigative staff member, a prosecutor other than the assigned investigative prosecutor, and the closest family member or family representative.  The purpose of the meeting is to explain the grand jury process and advise the family that a grand jury presentation may be upcoming.  This meeting will generally take place by phone.  Prior to the public release of video footage of the fatal police encounter when the investigation is substantially complete under Step 5 of the Independent Prosecutor Directive, the Independent Investigator shall consult with the decedent’s family or next of kin.  When the autopsy of the decedent is ready for review, the Independent Investigator will make it available to the decedent’s family or next of kin.  B. occur.
[brief] \textit{Sullivan v. Louisiana}, 508 U.S. 275, 277-278 (1993); \textit{State v. Vick}, 117 N.J. 288, 292 (1989).  Here, there is simply never a spot in the jury instructions where the judge ever tells the jury that if they have a reasonable doubt on resolution of the “Yes/No” questions, they should answer, “No. ”  A lay jury cannot be expected \textsuperscript{15}  While this point addresses errors in the way the official-misconduct and theft counts were presented to the jury, and error in the presentation of the official-misconduct count necessarily taints the verdict for a pattern of official misconduct as well.  to intuit that if a reasonable doubt equates to a “Not Guilty” answer for a “Guilty/Not Guilty” question, it also necessarily means the jury must answer “No” to a “Yes/No” question if they are not sure of the answer beyond a reasonable doubt.  They need to be told how the concept of reasonable doubt played into answering the “Yes/No” questions, and they were not.  That omission alone is structural error that demands a reversal of the convictions.  But the errors did not end there.
[brief] It is well settled that the function of the Court in reviewing a Local Planning Board determination / recommendation is not whether the Court agrees with the subject Decision; it is whether the Board acted in an arbitrary, capricious, and/or unreasonable fashion in reviewing the same.  Burbridge vs. Mine Hill Township, 117 N.J. 376, 385 (1990); Rowatti vs. Gonchar, 101 N.J. 46, 51-5T (1985); Kramer vs. Bd of Adjust., Sea Girt, 45 N.J. 268,296 (1965); Rexon vs. Board of Adjustment, Haddonfield, 10 N.J. 1, 7 (1952).  That is, judicial review is intended to be a validation of a Board’s action – not an opportunity for a Court to substitute its judgment for that of the Board.  Rowatti vs. Gonchar, 101 N.J. 46 (1985).  For, as was stated in Kaufmann vs. Planning Board for Warrant Township, 110 N.J. 551, 558 (1988); (The Court has) not signaled a shift in emphasis from the traditional roles of courts in reviewing Planning or Zoning Board Applications… such land use decisions are entrusted to the sound discretion of the municipal board, which are to be guided by the positive and negative criteria set forth in the enabling statutes.  Id 110 N.J. at 558
[brief] --- 1  Because of their interrelated nature and for the ease of the reader, these sections have been combined.  2  “Db” refers to the Defendant’s response brief. at all related to the 9-1-1 call.  See 1T12:2.  As the trial court prevented the State from presenting any substantive evidence related to the 9-1-1 call, it was thus impossible for the State to present the audio of the 9-1-1 call.
[brief] It is posited that the average person has no idea what “principally garaged” means.  [...], like any normal person who is not a lawyer, advised his insurance company that his mailing address was New Jersey and, therefore, assumed that he would have a New Jersey policy.  If [...] was attempting to game the system, then he is a relatively incompetent fraudster.  In sum, the evidence demonstrates that plaintiff attempted to comply with Section 4.5 by changing his insurance policy to a New Jersey policy prior to the accident.  There is no question whatsoever that a genuine issue of material fact exists as to whether [...] was justified in denying coverage to [...] and, thus, a genuine issue of material fact as to whether plaintiff failed to comply with Section 4.5 of the No-Fault Act.  In light of the foregoing, it is respectfully submitted that the defendant’s motion should be denied.
[brief] ’”  Crespo v. Crespo, 395 N.J. Super. 190, 193-94 (App. Div. 2007) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)).  Further, Appellate Courts review decisions by Family Part judges “in accordance with a deferential standard of review, recognizing the court’s ‘special jurisdiction and expertise in family matters. ’”  Thieme v. Aucoin-Thieme, 227 N.J. 269, 282-83 (2016) (quoting Cesare v. Cesare, 154 N.J. 394, 413 (1998)).  These orders should not be overturned unless the ruling is "so wide of the mark that a mistake must have been made."  N. J. Div. of Youth & Family Svcs. v. P.W.R. 205 N.J. 17, 38 (2011) (quoting N.J. Div. of Youth & Family Svcs. v. M.M. 189 N.J. 261, 279 (2007)).  Deference "is especially appropriate when the evidence is largely testimonial and involves questions of credibility."  In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997).  The Appellate Court must accord considerable weight to the trial judge's findings of credibility as the judge is in a unique position to evaluate the demeanor of the parties and the other witnesses.
[brief] [...] filed its initial Complaint in this matter on May 4, 2021.  Da1.  [...] filed an Answer and Counterclaim on June 8, 2021.  Da28.  The case was tried before the Hon. [...], P.J.Ch. over four days, on March 30, 2022, March 31, 2022, April 5, 2022, and April 6, 2022.  The Trial Court issued an initial oral decision in this matter on June 29, 2022, and memorialized its findings in an Order dated June 30, 2022.  Da361.  Following post-judgment submissions occasioned by the inability to execute the specific performance remedy ordered in the June 30, 2022 Order, the Trial Court issued a second decision by Order dated March 15, 2024, which, in part, reformed the Redevelopment Agreement. Da49.  The Trial Court denied Defendant’s motion to stay that Order by Order dated April 26, 2024.  Da398.  This Court granted Defendant’s motion for leave to appeal by Order dated April 29, 2024.  Da398.  On June 14, 2024, this Court granted Defendant’s motion to stay the March 15, 2024.  Da400.  On July 3, 2024, [...] filed a Notice of Motion for Leave to Appeal from this Court’s June 14, 2024 Order and Decision, imposing a stay.  Pa727.  As of the date of this filing, that motion remains pending.  LEGAL ARGUMENT POINT
[brief] Issues of statutory interpretation are reviewed de novo on appeal.  See Kocanowski v. Township of Bridgewater, 237 N.J. 3, 9 (2019), citing State v. Fuqua, 234 N.J. 583, 591 (2018).  “A trial court’s interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference. ”  Rowe v. Bell & Gossett Co., 239 N.J. 531, 552 (2019).  See also In re Ridge Field Park Bd. of Ed., 244 N.J. 1, 7 (2020).  Accordingly, the review of the trial court’s rulings and Final Order should be de novo.
[brief] This is essentially the bait with which the undercover detective lured and ultimately captured and charged [...] with.  Not only is this information important to mount a defense and defend against the allegations brought by the State, it’s also relevant to the defense’s reliance on statutory and due process defenses of entrapment.  (2T12:21-13:6) (emphasis added).  …  That illustrates and demonstrates the significance of this evidence, and the significant extreme prejudice to [...] to go to trial without having the benefit of this profile information to cross-examine [...].  (2T15:17-21).  … it’s just simply fundamentally unfair.  There would be a manifest and harmful prejudice to [...] to go to trial without the benefit of these -- this profile information.  (2T15:25-16:4) (emphasis added).  As set forth above, to satisfy the second Hollander factor, a defendant must merely show that, in the absence of the evidence at issue, he would not receive a fair trial.  Kyles, 514 U.S. at 434.  The State’s contention that “the law requires defendant show the evidence was materially exculpatory” is patently untrue.  See Pb20.  The Trial Court properly ruled, under the circumstances present, that the evidence at issue was crucial to the defense and to force Defendant to proceed to trial without it would have been fundamentally unfair.  This ruling satisfied the second Hollander factor and should, therefore, be upheld.
[directive] Victims' Crime  The right: the including Directive, this and Law Reform Bail of implementation the representative prosecutor's with the confer to and disposition final and progress case of advised be To (k) informed; adequately kept be may victim the that so a to crime the of impact the time, about of amount reasonable a within statement, written a submit To (m) decision final prosecutor's the to prior considered be shall which agency prosecuting the of representative request a to consent will prosecutor the whether filed, be will charges criminal formal whether concerning negotiated to agree a or will make prosecutor whether the and program, apre-trial enter to defendant the by plea; a involving proceeding juvenile or any crime involving a proceeding judicial any at present be (p) To Constitution; Jersey New of the 22 paragraph I, Article by provided otherwise as offense, except criminal defendant; of the escape or release any of notified be To (q) held, being victim is of the the rights implicating proceeding which a before court any in appear To (r) or herein conferred right any enforce motion to filed on a argument or present motion a file to standing with decision the by adjudicative an receive to Constitution, and Jersey New the of paragraph 22 I, Article by motion.
[brief] At the outset, defense counsel actually presented this argument to the jury, and the jury rejected it.  In summation, defense counsel’s focus was precisely on the victim as a judge “just doing his job,” and urging the jury to find that the victim overreacted to “absurd” allegations because he “has been working as an attorney for two decades and [been] a judge for half a decade. ” (4T12-5 to 11).  Rather than arguing about how the ordinary victim would react, defense counsel specifically urged the jury to consider the threats from the perspective of someone similarly situated to the victim, arguing that the victim was “not new to disgruntled people. ” (4T12-12).  Defense counsel argued that, as a judge, dealing with “disgruntled people,” such as defendant, this was “par de course [sic.], business as usual. ” (4T12-14).  Defense counsel continued, the victim was “[s]omeone who knows that when people come to court they’re experiencing some of the most difficult or frustrating or annoying times in their lives.  Someone who has first hand experience with hundreds…thousands of people in the public who’s dealt with disgruntled folks on multiple, multiple, multiple occasions.  And he stood before you and told you he was afraid of a few voicemails. ” (4T13-3 to 10).  Even with respect to the stalking charge, defense counsel expressly addressed how the victim’s reaction of fearing for his safety was not reasonable when viewed from the perspective of someone in his circumstances:
[brief] There is no common ground with unvaccinated people.  In addition, while the January 17, 2022 posting may not have included the word “Holocaust,” the public understood the implication.  Indeed, these postings resulted in public outcry from parents and students as evidenced by the board meeting minutes and newspaper articles.  (Ca029).  It was obvious below – as it is obvious now – that these events actually occurred.  Respondent asks the Appellate Division to deny what it can see with its own eyes.  This argument carries no weight and should be disregarded.  Respondent clearly compromised the Board in violation of the Act.  III.
[brief] II.  Immunity statutes, which relieve a party from tort liability, must be plainly read and narrowly construed.  Pa4.  N.J.S.A 48:12-152 is an immunity statute which relieves a railroad from civil tort liability under certain circumstances and in certain locations.  There is longstanding, well established jurisprudence in New Jersey regarding statutory construction and interpretation, specifically with regard to immunity statutes.  New Jersey law requires strict construction and adherence to the plain meaning of the words of the statute.  Cohen v W.B.Assocs, Inc, 380 N.J. Super 436 (App Div. 2005) held “in a proceeding in derogation of the common law, strict compliance with the terms of the statute is a sine qua non to jurisdiction. ”  This is because these provisions “affect the liberty and property of the individual, are highly penal in character, a strict construction must be given to them. ”  Cohen involved a real estate transaction where the seller of the property sought protection from an immunity statute called the New Residential Construction Off-Site Conditions Disclosure Act.  Under this statute there is very precise disclosure language that must be communicated from the seller to the buyer of a new home about the neighborhood surrounding the real estate.  In Cohen the seller provided the required disclosure but then added some potentially deceiving or inaccurate language which may have misled the purchaser.  The Seller’s deviation from the strict language of the Disclosure Act made the seller unable to avail itself to the immunity under the statute.  The Court in this case interpreted the immunity statute very narrowly, based on a plain meaning interpretation of the statute and took care to not broaden the immunity.
[brief] 194 N.J. 6, 10 (2008).  The issue on appeal arose out of the trial of a personal-injury action for injuries sustained in an automobile accident.  Id.  The jury's verdict was largely in favor of Defendant, and plaintiff appealed.  Id.  A panel of the Appellate Division reversed and held that plaintiff was entitled to a new trial because the trial court erred in admitting expert testimony from Defendant's biomechanical engineer.  Id. citing Hisenaj v. Kuehner, 387 N.J. Super. 262, 277, 903 A.2d 1068 (App.  Div. 2006).  The Supreme Court granted Defendant's petition for certification, 189 N.J. 427, 915 A.2d 1050 (2007), and reversed the Appellate Court, holding, “based on the record and arguments presented to the trial court, and applying the abuse-of-discretion standard, we hold that the trial court's evidential ruling was within the range of sustainable trial determinations that the reviewing court should have affirmed.
[brief] Defendant’s [...] records revealed a $700 withdrawal from her account at that time.  (4T157-22 to 25; 4T160-5 to 11).  Other surveillance footage from that day, between 7:30 and 9:00 p.m. showed her entering the [...], going to the ticket counter, and waiting for a bus.  (4T165-20 to 173-15; 4T179-4 to 7; 4T180-19 to 23).  On May 16, 2020, a ticket was purchased in defendant’s name at the [...] station in the New York City Port Authority for a trip from New York to Miami, Florida, with a transfer in Richmond, Virginia.
[brief] N.J.S.A. 26:3A2-4.  As related in the Statement of Facts, the Borough has joined with other municipalities which have formed the [...] ([...]) and therefore, the [...] has succeeded to the powers of the local (Sea Bright) Board of Health.  Indeed, “regional health commissions have no more authority than the local Boards of Health that they supersede…Those powers are limited to public health issues…”  LDM Inc. v. Princeton Regional Health Commission, 336 N.J. Super. 277, 317 (Law Div. 2000) (internal citations omitted).  It is important to note here that, in accordance with the above referenced statutory scheme, the [...] only exists and only has power because it has succeeded local Boards of Health.  There is no independent establishment of the [...] except as a successor of local Boards of Health that have chosen to regionalize.  This is important because the only statutory authority that allows the [...] to establish a model nuisance code is the same general statutory authority that permits local Boards of Health to adopt codes by reference pursuant to the PHSCARA.
[brief] T6, 80:1-13.  [...] allegedly called her between 12:00 and 1:00 a.m.  T6, 80:19-22.  Tellingly, she said that [...] never told her that he had killed [...].  T5, 81:3-5.  The van which [...] was driving when he was shot is seen crashing into a pole at approximately 3:13 a.m.
[brief] It is well-recognized that debt collectors often write confusing letters despite the ability to write clear ones.  In *Hopkins v. Advanced Call Ctr. Techs., LLC*, No. 20-cv-06733, 2021 U.S. Dist. LEXIS 67732, 2021 WL 1291736 (D.N.J. Apr. 7, 2021), [...] expressed “some judicial displeasure” at debt collectors’ failure to write clearly:  Collectors’ insistence on going right up to the line has produced seemingly endless litigation, flyspecking the precise wording of collection letters, in cases which have come to take up a disproportionate share of the federal docket.
[brief] **POINT IV.  THE TRIAL COURT ERRED IN HOLDING THAT VALENTINE’S FDCPA CLAIMS ARE BARRED (Raised Below: T1; Pa51-Pa52)**  As a threshold matter here, [...]’s standing to assert claims under the FDCPA is not at issue.  The trial court explicitly held that [...] “has standing to assert the FDCPA claims” and they are not time-barred.  See SoR p. 8, 10 (Pa40, Pa42).  Nonetheless, in dismissing [...]’s FDCPA claims, the trial court held:  Plaintiff has pled that she is a consumer from whom defendants attempted to collect a debt without being licensed as required under New Jersey statutory law.  Her claim relies on a finding that failure to obtain a license rendered plaintiff’s debt void by operation of law, and that subsequent collection activity misrepresented the legal status of that debt in violation of the FDCPA.  Those claims are barred.  SoR p. 20 (Pa52).  The trial court simply failed to explain why [...]’s FDCPA claims ‘are barred. ’  The trial court’s whole premise for dismissing [...]’s CFA claims was the ostensible lack of a private right of action under the NJCFLA.
[brief] (Db33; Db43-44).  Again, a BPU determination of whether the Union County Project provides safe, adequate, and proper service is irrelevant to the trial court’s preemption analysis.  Regardless, the BPU does not require a public hearing and issue an order for every single action a utility, such as [...], may take as part of its activities and operations.  Matter of Petition of [...] for Permission to Revise Rates for Appliance Serv., [...] (93 N.J.A.R.2d (BRC) 19 (N.J. Adm.)), Final Agency Decision (June 4, 1992) (stating the BPU has “long recognized that regulated utilities may engage in any reasonable legitimate business endeavors that are not directly or indirectly prohibited by law. ”).  Section 48:2-23 is an executive agency enforcement statute and is applied that way by the BPU.  The BPU “may” conduct a public hearing “to require” the provision of safe, adequate, and proper service.  The BPU ultimately has discretion in how to exercise this authority.\textsuperscript{2}  Moreover, the need for transmission development is subject to a comprehensive planning paradigm approved by [...] and implemented through [...].