ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] (2T20-13 to 19).  The court’s reasoning, however, places an undue burden on the “investigatory demands of law enforcement” that was carefully taken into account in Witt, 223 N.J. at 447.  In particular, the trial court’s finding disregards [...]’s testimony that although he had first observed what he believed was a hand to hand transaction at approximately 4:00 pm, he did not want to “jump the gun. ”  Instead, the officers continued their surveillance to confirm their suspicions.  [...] stated he would not leave his surveillance position “just based off of one believed hand-to-hand narcotics transaction.  We wanted to further strengthen our belief that the driver was distributing narcotics. ” (1T39-10 to 15).  Importantly, the second transaction did not occur until approximately 30 minutes after the first, at which point they called for back-up; the third transaction did not occur until approximately 40 minutes later.  (1T21-2 to 25-20).  Clearly the court’s reasoning would put unreasonable restraints on investigations, and would have the potential to eliminate the automobile exception if not followed.  Furthermore, the trial court’s reasoning, discounts the dangerousness of the situation, i.e., defendant’s known history of fleeing a scene and causing motor vehicle accidents, the limited number of officers on scene after the first and second observed transactions, the lack of back-up officers to assist in effectuating the stop and arrest of defendant and to determine whether there were any other occupants in the car who might destroy evidence or be armed.  In essence, the trial court’s reasoning applied to similar future circumstances, would require law enforcement officers to “jump the gun,” to impound a car and obtain a warrant at the first indication that probable cause may exist, even if they are unsure if probable cause has been fully developed.  Clearly the Courts in Witt and Smart, did not intend such a result.  Based on [...]'s observations and testimony, and the factual distinctions between those established at the suppression hearing and those in Smart, it is clear that the circumstances giving rise to probable cause were unforeseeable and spontaneous and the warrantless search of defendant’s motor vehicle was valid.
[brief] The court reasoned that the terroristic threats counts related to “independent and separate events which occurred at separate times, some eight months apart, after defendant had been arrested and detained on the charges. ”  (6T 45-19 to 23)  The court repeatedly stated that the terroristic threats charges related to events that occurred in August 2021 and April 2022:  After eight months and defendant’s detention on the matters of the Court, the Court could assume the judge felt a sense of peace and safety only to have the rug pulled from under him and have the threats start up again.  Moreover, the fact that these threats are now being made to the judge’s personal cell made the threats more palpable and invasive and indicated defendant’s escalating criminality.  The two offenses were committed at different times, different dates, different places, eight months apart, long after defendant was charged for and detained for the initial offenses.  These were separate and distinct crimes . . . and it deserves the imposition of separate or consecutive sentences.  [6T 45-25 to 46-8; 47-5 to 11.]  The court sentenced [...] to an aggregate 16-year term of imprisonment: two consecutive 8-year terms on the second-degree terroristic threats counts, and concurrent 1-year terms for each of the three remaining counts of harassment, retaliation for past official action, and stalking.
[brief] Notice of the November 12, 2021, special meeting of the Council was never published.  As required by N.J.S.A. 40:49-2, the Borough published notice of a public hearing on adoption of Ordinance 1423-21 in [...] on November 18, 2021.  The hearing was scheduled for a December 14, 2021, special Council meeting, thirty-three (33) days after introduction.
[brief] Similarly, the court’s exclusion of the photograph marked [...]-3 layered another error on top of the others mentioned above.  This exclusion was not only an abuse of discretion, but also severely prejudiced Defendants by yet again barring Defendants from presenting a full and fair defense.  Defendants argued that the photo was important because it not only showed the severity of the storm, but it also conveyed to the jury the difficult task of removing snow in parking lot when there are parked cars situated in the lot.  In addition, even if the photograph was taken later on in the same day, the photo showed that snow removal was still ongoing at the time – whether that time was 7:30 AM or 9 AM.  All of this was intended to convey to the jury the severity of the storm and the herculean task of trying to remove 14 inches of snow and ice within a reasonable period of time.  By excluding this photo, the court removed necessary context and again deprived Defendants the opportunity to fully, fairly and cogently present its defense.  Meanwhile Plaintiff was permitted to present the narrative to the jury that there was a “system failure” among the defendants, that is, that the property owner, contractor and subcontractor all failed to perform and all failed to uphold their obligations to one another.  Fairness would dictate that Defendants should be allowed to martial and present those proofs that speak directly to the defense theory.  Instead, the court stifled Defendants’ ability to fairly present its defense by excluding crucial evidence.  In addition, Defendants were deprived an impartial jury when the court allowed evidence about the supposed contractual violations and April 2018 storm to poison the jury’s impression of Defendants.  Lastly, the court deprived defendants a fair trial by allowing the jury to apply the wrong law and standard of care by giving the jury the wrong jury charge and allowing the jury to make the snow contract the relevant standard of care.  The aggregate effect of all these errors in combination rendered the trial unfair to Defendants.
[brief] A railroad may be liable under the FELA for the failure to provide a safe workplace when it knew or should have known of a potential hazard in the workplace and yet fails to exercise reasonable care to inform and protect its employees.  Gallose v. Long Island R.R., 878 F.2d 80, 84-85 (2nd Cir 1989).  Reasonable care is determined in the light of whether or not a particular danger was foreseeable.
[brief] Subpoena served on police Officers by [...] on 11/12/2020  Letter to [...] 10/27/2020 regarding trial scheduled when discovery incomplete non receipt of audio/videos and motion to suppress not heard (Attached at Pa078)  Letter to Judge and Prosecutor 11/20/20  Requesting Discovery Production of Expert Report of Chemist and Credentials  Incident Data Type/Offense as of 3/6/2020 involving [...]
[brief] Plaintiff’s expert only proffered a net opinion that Defendant shall be responsible for legal fees in a malpractice action.  But the expert did not present to the jury anything showing what portion of the $449,798.59 in attorney’s fees and costs was for making corrections of the PSA or obtaining the Amended Judgment of Divorce.  In fact, the Plaintiff’s effort to set aside the PSA and the effort to obtain a new judgment has nothing to do with the alleged malpractice.  The Family Part set aside the PSA and all Chinese agreements.  Defendants cannot be found committing malpractice for failure to incorporate invalid Chinese agreements into the PSA.  Nor can they be found to have committed malpractice based on a new judgment that is not a result of the parties’ negotiation where Defendants represented them in an uncontested divorce.  The new judgment was a result of a default judgment on the part of the husband from extensive litigation for a contested divorce.  The Court cannot inject a different contract between the Plaintiff and Defendant attorneys for an uncontested divorce to make Defendants to pay for a heavily contested divorce case of the Plaintiff client.
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[brief] Order dated August 1, 2022 ...........................................  Pa8  Order dated August 1, 2022 ...........................................  Pa9  Order Denying Motion for Reconsideration and Amending Order for Summary Judgment  Dated November 29, 2022 ...........................................  Pa10  Final Judgment by Consent dated February 7, 2023 .........................................................  Pa12  TABLE OF AUTHORITIES
[brief] N.J.S.A. 17:48E-46.5 ............................................................................................................9  N.J.S.A. 17:50-1 to -19 .................................................................................................passim  N.J.S.A. 26:2H-5(b) .............................................................................................................41  N.J.S.A. 52:14B-2 ..................................................................................................................33  N.J.S.A. 52:14B-3a(a) .........................................................................................................33  N.J.S.A. 52:14B-4(a)(2) .......................................................................................................43, 44  N.J.S.A. 52:14B-4(a)(1) .......................................................................................................44, 45  N.J.S.A. 52:14B-5 ...................................................................................................................47  Other Authorities A. 5317, 220th Leg. (2023), available at https://pub.njleg.state.nj.us/Bills/2022/A5500/5317_I1.PDF ........................................18, 27 https://www.govinfo.gov/content/pkg/CHRG-111hhrg56778/pdf/CHRG-111hhrg56778.pdf ........................................4, 5, 11, 12 N.J. Const. art. IV, § 7, ¶ 3 .....................................................................................................49 N.J.A.C. 1:30-5.1(b)(9) .......................................................................................................44 N.J.A.C. 1:30-5.2(a) ...............................................................................................................44 N.J.A.C. 1:30-5.2(a)(3) .......................................................................................................44 N.J.A.C. 1:30-21(a)(6) .......................................................................................................45 Rule 2:2-3 ...............................................................................................................................1 S. 3636, 220th Leg. (2023), available at https://pub.njleg.state.nj.us/Bills/2022/S4000/3636_I1.PDF; ..................18, 27 SSAP No. 25 .................................................................................................................................passim U.S. Const. art. I, § 10, cl. 1 ..............................................................................................................49
[brief] ** | 7 | | 215 *N.J.* 265 (2013)  | | | **Garfinkel v. Morristown Obstetrics & Gynecology Assoc., P.A.** | 14 | | 168 *N.J.* 124,132 (2001) | | | **Gayles v. Sky Zone Trampoline Park,** | 12 | | 468 *N.J.Super.* 17 ((App. Div. 2021).  | | | **GMAC v. Pittella,** 205 *N.J.* 572 (2011)| 4 | | **Hoxworth v. Blinder, Robinson & Co.** | 7 | | 980 *F.2d* 912 (3d Cir. 1992).  | | | **Kisselbach v. Cnty. Of Camden,** | 12 | | 271 *N.J.Super.* 558 (App. Div. 1994) | | | **Luchejko v. City of Hoboken,** | 13 | | 207 *N.J.* 191 (2011)  | | Mazdabrook Commons Homeowners’ Ass’n v. Khan, 210 N.J. 482, 505 (2012).  Morgan v. Sanford Brown Institute, 225 N.J. 289 (2016)  Moore v. Woman to Woman Obstetrics & Gynecology LLC, 416 N.J.Super. 30 (App. Div. 2010).  N.J. Laws.  Fund for Client Prot. V. Stewart Title Guar. Co., 203 N.J. 208 (2010).  Ogunyemi v. Garden State Medical Center, No. A-1703-22, 2024 WL 1243552 (N.J. Super. Ct., App. Div. March 25, 2024)  Price v. Himeji, LLC, 214 N.J. 263 (2013)  Rent-A-Center W Inc. v. Jackson, 561 U.S. 63, 71 (2010)  Roach v. BMW Motoring LLC, 228 N.J. 163 (2017)  Santana v. Smile Direct Club, LLC., 475 N.J.Super. 279 (App.  Div. 2023)  Skuse v. Pfizer, Inc., 244 N.J. 30 (2020)  Still v. Ohio Cas. Ins. Co., 13 189 N.J.Super. 231 (App. Div. 1983).  Wein v. Morris, 4 194 N.J. 362 (2008)  White v. Karlson, 7 354 N.J.Super. 284 (App. Div. 2002)
[brief] In Azurak, the Supreme Court established a “bright line rule” that contracts requiring indemnification for a party’s own negligence must do so clearly and explicitly (raised below at 1T4:22-23:18).  Generally speaking, courts construe contracts as a whole and apply the language of the contract as written to enforce the parties’ intent.  Boyle, 257 N.J. at 478.  Courts will not rewrite a contract to favor one party over the other but will instead apply unambiguous language as written.  Ibid.  However, when the language of an indemnity clause is ambiguous, courts construe the indemnity provision strictly against the indemnitee.  Ibid.  The Supreme Court established a “‘bright line rule’” that a contract purporting to require indemnification for the indemnitee’s own negligence must do so with “‘explicit language,’” and “must specifically reference the negligence or fault of the indemnitee. ”  Azurak, 175 N.J. at 112-13 (quoting Azurak v. Corporate Prop. Investors, 347 N.J. Super. 516, 523 (2002)).  If an indemnity provision is ambiguous, it is unenforceable with regard to indemnity for the indemnitee’s own negligence.  Boyle, 257 N.J. at 478.  Courts presume that a party drafting the indemnity clause can do so with the specificity required to provide indemnity for its own negligence.  Kieffer v. Best Buy, 205 N.J. 213, 225 (2009).  A.
[brief] *State v. Mauricio*, 117 N.J. 402, 417-18 (1990) (emphasis in original; internal quotation marks omitted).  The question is merely whether the evidence “leave[s] room for dispute. ”  *Id.* at 415.  While “sheer speculation does not constitute a rational basis,” *Brent*, 137 N.J. at 118, the judge’s duty to “examine the record thoroughly” under *Sloane* and *Crisantos* must necessarily recognize the time- honored maxim from *State v. Ernst*, 32 N.J. 567, 583 (1960), that the jury is free to believe some, all, or none of the evidence presented to it because the “rational basis” test looks to all the evidence in the case, and evidence supporting a finding of a rational basis can come from anywhere in the record.  *State v. Blanks*, 313 N.J. Super. 55, 69-70 (App. Div. 1998) (a rational basis for giving a jury instruction can come from any evidence in the case, including entirely from the State’s case).  Moreover, the passion/provocation manslaughter instruction, if requested and supported by the evidence, must be given “regardless of whether the charge [of passion/provocation] is consistent with the defense. ”  *State v. Carrero*, 229 N.J. 118, 121 (2017) (emphasis added), citing *Brent*, 137 N.J. at 118.
[brief] [...] acknowledged during the course of his hearing testimony that the subject roadway condition pre-existed the beginning of construction on the road widening project and that he is unable to testify to a reasonable degree of engineering certainty that the condition was worsened by Project-related activities.  (3T152:22-154:17).  Further, [...] could not identify any work that had been performed prior to the date of plaintiff’s accident in the area where plaintiff’s accident allegedly occurred.  (3T240:8-241:18).  **Hearing Testimony Concerning Other Accidents / Investigation**
[brief] ”  More specifically, this “intruder” self-defense subsection of the statute was clearly intended to loosen the requirements for self-defense against an intruder in a dwelling, not tighten them, because, as further noted by the Court in *Bass*, 224 N.J. at 322, and also in *State v. Bilek*, 308 N.J. Super. 1, 11 (App. Div. 1998), the “intruder” self-defense portion of the statute, *N.J.S.A.* 2C:3-4c, allows the use of deadly force in a dwelling against an intruder who merely threatens ordinary bodily injury, not serious injury, whereas the general rules of self-defense contained elsewhere in *N.J.S.A.* 2C:3-4 require that a person be threatened with serious injury before using deadly force.
[brief] *SSI Med. Servs., Inc. v. Dep’t of Human Servs.*, 146 N.J. 614, 621 (1996).  To invoke the presumption, the party must show: “(1) that the mailing was correctly addressed; (2) that proper postage was affixed; (3) that the return address was correct; and (4) that the mailing was deposited in a proper mail receptacle or at the post office. ”  *Id.*  The presumption is based on “the probability that officers and employees of the postal department will do their duty, and by the regularity and certainty with which, according to common experience, the mail is delivered.
[brief] SAC ¶ 67.  From approximately October 2017 through May 2018, and thereafter continuing for years through the present, [...], the [...] and their cohorts created a false reality to "box in" plaintiffs with false inducements and statements that they were earnestly seeking to acquire plaintiffs’ rights, while they schemed, deployed, executed a cynical, criminal plan of stealing valuable trade assets from plaintiffs in broad daylight.
[brief] [...]'s final point challenges his twelve-year sentence, subject to the NERA, as excessive.  Appellate review of sentencing decisions is governed by an abuse of discretion standard.  See State v. Cassady, 198 N.J. 165, 180 (2009).  “Although ‘appellate courts are expected to exercise a vigorous and close review for abuses of discretion by the trial courts[,]’” “ibid. (quoting State v. Jarbath, 114 N.J. 394, 401 1989), “an appellate court may not substitute its judgment for that of the trial court. ”  Ibid. (quoting State v. Evers, 175 N.J. 355, 386 (2003)).  We consider, first, whether the correct sentencing guidelines have been followed, second, whether there is substantial credible evidence in the record to support the findings which warrant application of those guidelines, and third, “whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors. ”  State v. Roth, 95 N.J. 334, 365–66 (1984).  As long as the aggravating and mitigating factors found were based upon credible evidence in the record and the sentence imposed is within statutory guidelines, the trial court “need fear no second-guessing. ”  Roth, supra, 95 N.J. at 365.
[brief] The 525 was written on September 11, 2017 (1T; 108:23).  The Plaintiff pointed out that [...]’s statement in her evaluation was not true (1T; 111:4).  [...] also filed MAPPS entries around August 24, 2017, which was marked as Exhibit 10 at Plaintiff’s deposition (1T; 113:6).  Plaintiff complained about her evaluation because [...] was never in the unit to supervise her (1T; 114:9).  [...] also violated the rule that “Supervisors shall ensure their subordinates are made aware of all new MAPPS entries;” Plaintiff was never notified (1T; 114:18).  Also, the MAPPS entry was made after the evaluation was already in the system and it should have been the other way around (1T; 115:10).  The MAPPS entry was after the fact (1T; 115:18), and [...] was being dishonest about it (1T; 115:23).  Plaintiff pointed out that she never had a bad evaluation in her whole career (1T; 115:25).  Plaintiff testified that it was a lie (1T; 116:4).  As to [...], she approved an evaluation that was false (1T; 117:13).  [...] was responsible for making a MAPPS entry that she didn’t do (1T; 117:18).  During June and July until the Plaintiff was finally transferred, on several occasions, [...] advised the Plaintiff that the transfer was being held up by [...] based upon statements that [...] made (1T; 118:18).  [...] and [...] went back and forth because [...] felt that the Plaintiff didn’t deserve to be transferred into a position of possibly being a Lieutenant (1T; 118:18).  By being transferred to [...]’s Unit, the Plaintiff would get her eight points but if [...] stopped her transfer, she would not (1T; 119:2).  [...] wanted the Plaintiff to come over because her name was being brought up in MAPPS meetings and [...] was making comments about the Plaintiff’s character (1T; 119:18).  Actually, [...] was referring to the Plaintiff as “a problem child” (1T; 122:4).  MAX Meeting and Plaintiff was told by [...] that this was happening (1T; 122:13).  The Plaintiff indicated that [...] was stating that she, the Plaintiff, was not a team player, a problem child and that she doesn’t do anything at work (1T; 123:11).  Plaintiff was eventually transferred to [...]’s command in July of 2017 (1T; 123:22).
[brief] Plaintiff Failed to Establish Special Reasons/Positive Criteria for a d(1) Use Variance By Reason of "Particular Suitability".  Plaintiff argued it satisfied the positive criteria for a d(1) use variance, contending that Lot 5 is "particularly suitable" for the proposed non-efficiency/non-garden apartment building because the new development would promote the general welfare.  In advancing that position, Plaintiff cited testimony --- 2  Plaintiff misstates that the Trial Court did not provide an analysis relating to the positive criteria.  Pb27.  The Opinion and the excerpts herein show otherwise.  Further, the posture Plaintiff took in attempting to have the Trial Court substantively “rehear” the Application anew was also improper, as on review the judiciary’s role was to ascertain whether the Board had substantial basis in the record for its action on the Application. offered by its planner suggesting the development will promote several of the purposes of zoning listed at N.J.S.A. 40:55D-2.  However, merely asserting that a use will promote one or more purposes of zoning is inadequate to satisfy the positive criteria.  It must also be shown that the specific site (Lot 5) is “peculiarly fitted” or “particularly suitable” for the proposed use, i.e., 29-unit building.  The Supreme Court in Fobe Assoc. v. Mayor and Council of Demarest, 74 N.J. 519 (1977) found the denial of a variance by a board of adjustment to permit a developer to build an apartment building in a single-family district was not arbitrary or capricious.  The applicant argued there was a regional need for housing and therefore his project served the general welfare.  The Court held the rule of Kohl v. Mayor and Council of Fair Lawn, 50 N.J. 268, 279-280 (1967) was applicable and that it must be shown that even where there was a need, the general welfare is served because the use is peculiarly fitted to the particular location for which the variance is sought.
[brief] [...] testified that the Ram drove to a different area of the parking lot that “was devoid of any other vehicles” and parked.  (1T 19-16 to 19)  [...] continued to watch the Ram and decided to drive by the parked vehicle to “see what the driver was doing. ”  (1T 20-1 to 4)  [...] testified that the driver “looked like he had been looking down at his lap,” (1T 20-5) which [...]’s “training and experience” led him to believe that the driver was “examin[ing] the narcotics that they just purchased. ”  (1T 20-6 to 9)  On cross-examination, [...] admitted that the man in the Ram could have been looking down at his phone or his wallet, and that all he knew was that the man was looking down.