ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The court believed that the objectives were independent based on a thousand-foot view of the elements rather than the facts of this case.  (Da 191)  But the only evidence of gun possession at trial was that [...] was shot; the State did not prove that a gun was possessed hours, minutes, or even seconds before then. \footnote{The court’s speculation that “Defendant possessed a firearm prior [to] murdering the Victim” and “Defendant arrived at the scene of the crime, already possessing a loaded revolver” was not supported by any evidence.  (Da 191)}  Thus, the objectives were the same: possessing the gun only to use it in the same moment.  See State v. Lester, 271 N.J. Super. 289, 293 (App. Div. 1994) (“Where separate crimes grow out of the same series of events or from the same factual nexus, consecutive sentences are not imposed. ”).  For the same reason, the offenses occurred at the same time and place; they did not involve separate instances of violence; and they also involved only one victim -- all factors the court failed to consider.  Although this case involved multiple offenses, the court properly merged and ran concurrent the two other weapon-possession offenses.
[brief] Setting aside the question of whether ASOP 8 is the correct standard for judging excessiveness, it does not inexorably follow that [...]’s rates would be deemed excessive under that provision.  The Department does not proffer any basis for suggesting as much, and offers no response to [...]’s showing that other states have approved far higher rates.  See Da722–23. public (i.e., the policyholders)” and claiming “there must be the backstop to protect the policyholders”).  This is doubly wrong.
[brief] (Dca25; Dca30 to 114; Dca119 to 122).  The detective explained that using normal investigative techniques in the future would not prove successful, certifying that the detectives would be unable to ascertain the scope of the conspiracy and the roles of the conspirators without the use of a listening device and camera inside the apartment.  (Dca114 to 121; Dca123 to 124).  The detective also explained that a search warrant of the apartment would be premature and would expose the investigation before they fully learned the scope of the illegal activity.  (Dca121).  Moreover, the detective requested permission to search for various illegal items without seizing them since law enforcement wanted to continue the covert operation after the listening device was installed and since seizure of items at the time would uncover their investigation.  (Dca128 to 129).  Finally, in order to maintain the covert aspect of the investigation, the detective requested authorization not to turn over a copy of the search warrant or receipt of evidence until ninety days after the sealing of the DVD(s) of the conversations over the listening device or ten days after the arrest of defendant or codefendants.  (Dca129).  On April 17, 2009, the Honorable [...], J.S.C., found probable cause existed to enter, search, and install a listening device at [...].
[brief] 4T, 139:24-140:13.  [...] testified that [...] did not have to expend a dime in developing the 100% affordable housing development on [...].  4T, 65:17-22.  As [...] and [...] explained, in 100% affordable housing projects, developers, whether [...], [...], or anyone else, do not need and do not put any money in the development of the affordable housing project.
[brief] Parker v. Marcus, 281 N.J.Super. 589, 593 (App. Div. 1995).  [...] submits that the totality of circumstances surrounding the entry of Plaintiff’s default judgment warrant relief under R. 4:50-1(f).  First, as has been previously discussed, there is reasonable doubt as to whether or not Plaintiff succeeded in effectuating service of process upon the Defendant under R. 4:4-3.  Moreover, as discussed infra, there is a reasonable doubt as to whether [...]’s mailed notices were actually delivered to [...], and therefore whether he ever received notice that default had been entered against him on the docket, as required by R. 4:43-1.  The failure to notify [...] that a default had been entered upon the docket caused material prejudice.  Only nine days after discovering that judgment had been entered against him, [...] filed a pro-se application to vacate (Da119).  Had Defendant been properly notified of the default, as required by R. 4:43-1, his application likely would have been sufficient to vacate the default and enter an answer out of time.  Instead, the application was denied for failure to set forth a cognizable defense.  [...] was therefore prejudiced because he was faced with a heavier burden.  [...] thereafter sought the assistance of Counsel to prepare and file a conforming motion under R. 4:50-1.  However, his efforts to secure the assistance of Counsel were hampered by the death of his nephew, occurring on September 18, 2022 (Da157, [...] Cert, ¶¶29-30).  Defendant engaged [...], Esq. as Counsel on or about February 8, 2023, for the purpose of vacating the Plaintiff’s default judgment (Da158, [...] Cert, ¶30).  Unfortunately, Mr. Burke was unable to handle the application, and on or about March 3, 2023 referred [...] to [...], Esq. for the same purpose (Id. at ¶¶31-32).  Although [...] also retained Mr. Roglieri to prepare and file the necessary motion, no motion was filed.  Thus, [...] terminated Mr. Roglieri, obtained a refund of his retainer fee, and retained his present Counsel to file the motion.  Id. at ¶¶33-34.  [...] evidently acted with alacrity to address the default judgment, and sought to reopen this matter to assert his defenses.  Although his initial pro-se effort was unsuccessful, and his subsequent efforts were derailed shortly thereafter by a personal tragedy, [...] did retain two other attorneys to prepare the proper motion to vacate the default judgment on the grounds of excusable neglect and the failure of process service.  He did so while several months remained to file a timely motion under R. 4:50-1(a).  Defendant submits that these factors, in conjunction with the Plaintiff’s failure to serve Defendant with process, constitute exceptional circumstances that warrant reopening of the default judgment pursuant to R. 4:50-1(f).  CONCLUSION
[brief] THE TRIAL COURT ERRED IN DENYING AN AWARD OF COUNSEL FEES TO THE RESPONDENT  Respondents ask the Court to consider the complete context of what transpired since its decision back on November 16, 2023.  Respondents incurred extensive legal fees defending a clearly unconscionable lease provision.  In fact, the Appellate Division held that “If we were to accept plaintiff’s interpretation [of the late fee provision], defendant’s would be obligated to pay $82,628.94 in late fees with respect to $86,966.00 in unpaid rent, a nearly one-hundred percent charge.  Nothing is section 3(b) supports such a draconian result. ”  The only issue following the appeal was a determination of the amount Respondent owed in common area insurance since that had not been addressed below.  Appellant made the offer of $1,096.00 to settle all matters and Appellant’s accepted without even asking for an accounting because it was in their best interests to end the matter once and for all.  Appellant’s counsel notified the Court that all outstanding matters between the parties were resolved and he filed a Stipulation of Dismissal with Prejudice as he should have done.  Since the settlement was reached, Respondents have endured another year of motions and this appeal along with the legal fees necessitated with such proceedings.  Despite the obvious frivolity of Appellant’s claims and the threats to impose sanctions, legal fees and costs for engaging is such an abuse of the legal process, Appellant still has not been held to account.  Respondent is a small business fighting a large and wealthy adversary with substantial resources.  The only way for this matter to truly reach a just ending is to uphold the declaratory judgment of the Trial Court and require Appellant to pay Respondent’s counsel fees for the Motion to Enforce Settlement, the Cross Motion for Declaratory Relief and this Appeal.  There is certainly substantial evidence on the record at this point which demonstrates Appellants intentional abuse of the system to exact further financial pain on Respondents.  The Court must now take decisive action not only in the interests of fairness and justice, but to make certain no further abuse takes place in this matter.  CONCLUSION
[brief] THE TRIAL COURT CORRECTLY CONCLUDED THAT PLAINTIFF’S LIABILITY EXPERT FAILED TO ARTICULATE AN ADMISSIBLE OPINION REGARDING THE STANDARD OF CARE GOVERNING [...]’S PROVISION OF ITS PROFESSIONAL SERVICES OR ANY ASSERTED DEVIATION THEREFROM.  Opinion testimony “must relate to generally accepted standards, not merely to standards personal to the witness. ”  Taylor v. DeLosso, 319 N.J.Super. 174, 180 (App. Div. 1999).
[brief] One  NEPTUNE TOWNSHIP ORDINANCE SECTIONS  900B AND 902A, AS AMENDED, ARE NOT AUTHORIZED BY THE MUNICIPAL LAND USE LAW, ARE ULTRA VIRES AND VOID (5T14 – 1 to 25; 5T15 – 1 to 8)  The Municipal Land Use Law (MLUL) authorizes municipalities, by ordinance, “to designate and regulate historic sites or historic districts and provide design criteria and guidelines therefore”.  N.J.S.A. 40:55D-65.1.  The MLUL further authorizes municipalities to create a historic preservation commission.  N.J.S.A. 40:55D-107.  Historic preservation commissions are tasked with, among other duties, reviewing permit applications for properties in historic districts and issuing a written report to the administrative officer or planning board “on the application of the zoning ordinance provisions concerning historic preservation to any of those aspects of the change proposed”, together with recommendations regarding the issuance or denial of permits.  N.J.S.A. 40:55D-111.  Defendant-Respondent [...] (Township) established a Historic Preservation Commission (HPC) in accordance with the MLUL.  [...] Land Development Ordinance (Ordinance) Sec. 604.  Pa 56a.
[brief] Under N.J.S.A. 20:3-5, the Superior Court has jurisdiction of all matters in condemnation, and “all matters incidental thereto and arising therefrom. ”  Id. (emphasis added).  The Eminent Domain Act applies “[w]henever any condemnor shall have determined to acquire property pursuant to law . . . but cannot acquire title thereto or possession thereof by agreement with a prospective condemnee, whether by reason of disagreement concerning the compensation to be paid or for any other cause, the condemnation of such property and the compensation to be paid therefor, and to whom payable, and all matters incidental thereto and arising therefrom shall be governed, ascertained and paid by and in the manner provided by this act.  . . .”  N.J.S.A. 20:3-6 (emphasis added).  Under the Eminent Domain Act an “action” is defined under the Eminent Domain Act as the legal proceeding in which: 1) property is being condemned or required to be condemned; 2) the amount of compensation to be paid for such condemnation is being fixed; 3) the persons entitled to such compensation and their interests therein are being determined; and 4) all other matters incidental to or arising therefrom are being adjudicated.
[brief] Da00001 – Da00043.  The court’s conclusory statement that “if the allegations were true, one could establish separate injury…I think that there is dispute of facts.  I think the allegations in this case could establish such injury” was not supported by the motion record.  13T96-3 to -19.  Indeed, the trial court failed to articulate what Plaintiffs’ special injury was or where in the record there were disputed facts, which if true, established that Plaintiffs had suffered a special injury.
[brief] ”  That Defendant “needs money” and did have a motive for robbery is a “legitimate inference[ ] that can be deduced from the evidence” – i.e., Defendant’s statements that he is “homeless” and “may steal. ”  McGuire, 419 N.J. Super. at 142.  The jury was free to weigh this inference against Defendant’s claim that he “doesn’t need to rob” to assess whether and to what extent a motive existed.  Finally, even if this Court were to find some error in the Prosecutor’s reference to Defendant’s statement, such error would have been “induced” or at least “acquiesced” to by defense counsel, who first raised the issue of motive in summation.  A.R., 213 N.J. at 561.  The Prosecutor stated he would not have addressed Defendant’s financial status if defense counsel had not first claimed that Defendant is financially stable and “doesn’t need to rob. ”  At any rate, Defendant cannot meet his burden of showing that this alleged error was “so egregious that it deprived [him] of a fair trial. ”  Cordero, 438 N.J. Super. at 490.
[brief] ”)).  Many studies in addition to those cited by [...] have observed the same phenomenon and reached the same conclusion.  See, e.g., [...], [...], & [...], *Age and the Explanation of Crime, Revisited*, 42 *J. Youth Adolescence* 921, 921 (2013); [...], *Age and Crime*; [...], “Life-Course-Persistent” and “Adolescence-Limited” Antisocial Behavior: A Developmental Taxonomy, 100 *Psychol. Rev.* 674 (1993); [...], David P. [...], & [...], *The Criminal Career Paradigm*, 30 *Crime & Jus.* 359 (2003); [...], David P. [...], & [...], *Key Issues in Criminal Careers Research: New Analysis from the Cambridge Study In Delinquent Development* (2007).
[brief] "During operations and after completion of operations Customer agrees to indemnify and save harmless the Contractor and its employees against any and all claims by the Customer, its employees or third parties, their heirs, executors, administrators, successors, surrogates or assignees, arising on account of death or injuries to persons or damage to property, arising out of use of, or traveling at or onto the property, whether or not such claim damage, injury or death results from negligence of Customer, Contractor or others.  Customer shall defend all suits and claims arising from or incidental to the work under the agreement, without expense or annoyance to the Contractor or its employees."  [Emphasis added]  Da44-Da45.  The terms of paragraph two (2) clearly articulated the nature of the claims subject to indemnification, i.e., bodily injury and the scope of matters from which those claims arose, i.e., [...]’s work.  It stated with specificity [...]’s duty to defend.  There was clear unequivocal [...] compliant language which expressly stated that [...]s will defend and indemnify [...] whether the claim results from “negligence of Customer, Contractor or others”.
[brief] “[T]he fact that a suspect’s behavior may be consistent with innocent behavior does not control the analysis …  ‘[S]imply because a defendant’s actions might have some speculative innocent explanation does not mean that they cannot support articulable suspicions if a reasonable person would find the actions are consistent with guilt. ’”  *State v. Mann*, 203 N.J. 328, 339 (2010) (quoting *State v. Arthur*, 149 N.J. 1, 11-12 (1997)).
[brief] An initial response was sent prematurely by the [...] to the requestor on Thursday, January 6, 2022, prior to the expiration of the seven (7) day period for response.  Da215-217 at ¶ 5.  This initial response stated that the request was forwarded to the Law Department and that no responsive record existed in the department.  Id.  Although accurate, this response did not capture the City’s complete response and therefore a supplemental response was sent to the requestor on January 12, 2022.  Id.  Ultimately, the City’s response indicated the following in relevant part:  As to Request #1, please note that there is no such document and/or record.  E-mails are entered one at a time into the Nixle system, and it is not possible through the Nixle system to generate a list of all e-mails that have been entered.  The City does not separately make, maintain, or keep on file a list of e-mail addresses that have been entered into the Nixle system.  Therefore, the City does not have any documents or records that may be potentially responsive to your request for “distribution lists. ”  Further, even if a document and/or record did exist which contained the requested information, it is noted that the information contained within the hypothetical distribution lists (personal e-mail addresses of citizens) have been determined to be private information which is properly redacted from the response to an OPRA request.
[brief] A prosecutor may not make excessive remarks “plainly designed to impassion the jury,” particularly in “close and sensitive cases. ” (W.L., 292 N.J. Super. at 111).  Similarly, a prosecutor cannot make “highly emotional and personalized remarks” during summation, and by expressing moral outrage at the harm inflicted upon a victim, a prosecutor improperly “inject[s] into the case his own personal views” rather than presenting the objective evidence necessary for a jury to discern a defendant’s culpability.  (Blakney, 189 N.J. at 95).  The remarks highlighted by defendant as “appeal[ing] to emotion and sympathy” were reasonably related to the scope of the evidence presented at trial and were well within the “leeway” afforded to prosecutors to make vigorous and forceful closing arguments.
[brief] ”  Exemption #11 is also in DEP’s Highlands Rules under N.J.A.C. 7:38-2.3(a)11 and uses language nearly identical to the Highlands Act statute:  “The routine maintenance and operations, rehabilitation, preservation, reconstruction, repair, or upgrade of public utility lines, rights-of-way, or systems, by a public utility, provided that the activity is consistent with the goals and purposes of the Highlands Act. ”  In 2013, in the case of *In re New Jersey Dept. of Environmental Protection Conditional Highlands Applicability Determination*, [...], 433 N.J. Super. 223 (App. Div. 2013) (hereinafter, “Highlands Applicability”), the Appellate Division considered a challenge by [...] to DEP’s decision to deem an electrical substation proposed by [...] in [...] as qualified for Exemption #11.
[directive] h.  You will be required to provide a DNA sample, which could be used by law enforcement for [Yes/Sim] [No/Nilo] the investigation of criminal activity, and pay for the cost of testing?  Voce sera obrigado a fornecer uma amostra de DNA, a qua! podera ser utilizada pela policia na investigayiio de atividades criminais, e a pagar o custo do exame?
[brief] In this matter, the trial court appropriately held, “the record fails to demonstrate that Defendant Township acted in a palpably unreasonable manner. ”  [Pa12].  Further, the trial court found, “the issue of palpable unreasonableness can reasonably be made under the circumstances where no dangerous condition existed. ”  This is consistent with the relevant case law, which provides the issue of whether a defendant acted palpably unreasonable may be decided by the court as a matter of law upon application for summary judgment.
[brief] ”  McLean, 205 N.J. at 460.  Conversely, the State cannot present testimony which opines on a defendant’s guilt, State v. Trinidad, 241 N.J. 425, 445-46 (2020), or a core issue in the case where doing so is tantamount to declaring a defendant guilty, State v. Frisby, 174 N.J. 583, 587-89 (2002) (the credibility of defendant’s alibi).
[brief] [...] of full age, being duly sworn according to law, on his oath deposes and says:  1.  I am Senior Vice President, Regulatory Affairs for [...], the Petitioner in the foregoing Petition.  2.  I have read the annexed Petition, along with the Exhibits attached thereto, and the matters and things contained therein are true to the best of my knowledge and belief.  [...]  Sworn and subscribed to before me this 10th day of January 2017
[brief] Shortly thereafter, in February 2020, Defendant visited Ahmedabad with her family for a pre-engagement celebration attended by 300-400 people from Plaintiff’s side and only a few from Defendant’s side.  The engagement event went forward at the insistence of Defendant’s family even though Plaintiff’s grandmother passed away shortly before, in February 2020.  Defendant even expressed a desire to marry in February 2020, but Plaintiff insisted on needing more time to get to know her better.  1T65.
[brief] Each of these problems poses a potential "source of strife and friction" that should be eliminated.  *Borodinsky*, 162 N.J. Super. at 443.  We hold that a court faced with what it considers inadequate proofs of value must nonetheless eliminate the sources of continuing disquiet between the parties.  It must therefore resolve the question of value in the divorce proceedings.  If need be, it can marshall additional proofs to enable it to fix a value for the disputed asset.
[brief] (19T9-14 to 10-5).  Counsel also argued that Petitioner’s prior record was not extensive enough to count it as an aggravating factor, but instead should count as a mitigating factor.  (19T8-13 to 9-15; 19T10-23 to 11-4)  Counsel also noted that none of the victims were beaten or pistol-whipped, and that “as home invasion robberies go, they are not particularly heinous ones,” as they did not include gratuitous acts of violence.  (19T10-16 to 22)  Counsel concluded his remarks by stating:
[directive] Director of the consultation with stakeholders, the key research and considerable After Assessment Ontario Domestic Assault Risk designated the Justice has Criminal Division of Jersey to by law enforcement officers in New utilized tool to be assessment risk ~ODARA) as the Simply stated, the between intimate partners.  assaults of future risk identifying the in assist an ODARA is partner is to assault again.  The an abusive likely how indicate ODARA scores Its developed for use by police in the field.  tool that was actuarial validated evidence-based, violence size reported for validated domestic effect predictive highest is the accuracy predictive assessment, required to administer an ODARA is clinical expertise  No tools. risk assessment during an for scoring the ODARA's 13 items information necessary obtain officers can and records defendant's criminal history and related of the review and a victim with the interview accomplished Dispatch Training can reports, etc.).
[brief] \(^2\)  The focus of a reconsideration motion is on what was before the court in the first instance and is not intended to become a vehicle for a new argument.  *Lahue v. Pio Costa*, 263 N.J. Super. 575, 598 (App.Div.1993); *Morey v. Borough of Wildwood Crest*, 18 N.J. Tax 335, 341 (App.Div.1999).  Stated otherwise, there is nothing to reconsider when the argument was not initially raised.  In light of this history, the cross-motion was **required** to be denied.  As such, there can be no abuse of discretion by the trial court in denying the order under review.