ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] \(^7\)  There is no doubt that trial counsel “has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. ”  *State v. Arthur*, 184 N.J. 307, 342 (2005) (quoting *Strickland*, 466 U.S. at 691).  “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[.] .  . .”  *Strickland*, 466 U.S. at 690.  “[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. ”  *Id.* at 690-91.  “In other words, counsel has a duty to make reasonable investigation or to make a reasonable decision that makes particular investigations unnecessary.  In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments. ”  *Id.* at 691.  Accord  *State v. DiFrisco*, 174 N.J. 195, 220-21 (2002).  A failed trial strategy does not equate to ineffectiveness.  *State v. Bey*, 161 N.J. 233, 251 (1999).  \(^7\)  This subpoint responds to Point I, subpoint B, parts 1 and 2, of defendant’s brief.
[brief] Specifically, as to the first issue, the Special Master recommended that a producing party be allowed to redact information pertaining to seven categories of information deemed irrelevant: 1) pricing, profits, non-public financial information; 2) parts, suppliers, or costs; 3) design, development, and engineering; 4) marketing and business strategy; 5) other makes and models; 6) non-U.S. products; and 7) service and quality issues.
[brief] [...] returned to [...] in July, 2019, explaining that her back pain had returned and was getting progressively worse.  She described the fall of July 4, 2018, and explained that she was feeling pain free prior to the fall, but the pain had returned and worsened after the fall.  (2T151-15 to 152-9).  The doctor reviewed four photographs of the area of the fall (Pa22 to Pa25), and also photographs taken of [...]’s bruising.  (Pa26 to Pa30).  Because he felt that the bruises were the result of a “hard fall,” the chances were that the nerves could be bruised in a way that led to a more permanent damage to the nerves.  [...] considered the possibility of surgery which might provide some relief of [...]’s symptoms and prevent a further deterioration.  He felt, however, that the surgery posed significant risks, especially in light of [...]’s then current co-morbidities (i.e., osteoporosis, rheumatoid arthritis, thyroid and cardiac issues).  He believed [...] was not a candidate for corrective surgery, and would ultimately face the certain prospect of worsening pain and almost complete immobility, being bedridden, and in complete reliance on the assistance of others.
[brief] “While a board may reject expert testimony, it may not do so unreasonably, based only upon bare allegations or unsubstantiated beliefs. ”  *New York SMSA v. Bd. of Adjustment*, 370 N.J. Super. 319, 338 (App. Div. 2004).  “Prudence dictates that zoning boards root their findings in substantiated proofs rather than unsupported allegations.  By affording undue weight to the residents’ unsubstantiated testimony, the Board disregarded the weight of the evidence in the record in determining to deny [the applicant] its variance. ”  *Cell South*, 172 N.J. at 88.  A board also cannot rely upon net opinions unsupported by any studies or data to reject expert testimony.  *Bd. of Educ. of City of Clifton v. Zoning Bd. of Adjustment of City of Clifton*, 409 N.J. Super. 389, 434-35 (App. Div. 2009) (citing *Cell South*, 172 N.J. at 88).
[brief] See DA240.  LEGAL ARGUMENT POINT I STANDARD OF REVIEW.  (Issue Not Raised Below).  The Chancery Division disposed of the instant contract dispute via summary judgment.  The principles of contract interpretation are well-established in New Jersey and is thus a legal matter ordinarily suitable for resolution on summary judgment.  Celanese Ltd. v. Essex County Improvement Authority, 404 N.J. Super. 514, 528 (App. Div. 2009).  The standard for a summary judgment motion is well-settled in New Jersey: pursuant to R. 4:46-2(c) “[a]n issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact. ”  The court reviewing the motion for summary judgment must determine “whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. ”  Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 523 (1995).  The standard for summary judgment requires the trial court to conduct a “searching review” of the record to ascertain whether there is a genuine issue of material fact.  Brill, supra, 142 N.J. at 541.  A party may defeat a motion for summary judgment by representing that the evidential materials relied upon by the moving party, considered in light of the applicable burden of proof, raises sufficient credibility issues to “permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. ”  Brill, supra, 142 N.J. at 523.  Summary judgment must be granted when the evidence is “so one-sided that one party must prevail as a matter of law. ”  Housel for Housel v. Theodoridis, 314 N.J. Super. 597, 603-04 (App. Div. 1998) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)).  Therefore, “summary judgment cannot be defeated if the non-moving party does not ‘offer any concrete evidence from which a reasonable juror could return a verdict in his favor[.]’”  Theodoridis, supra, 314 N.J. Super. at 604 (quoting Anderson, supra, 477 U.S. at 256).  For the reasons that follow, the Chancery Division’s decision to grant Plaintiff’s motion for summary judgment was contrary to well-established law; therefore, the Chancery Division’s decision must be reversed and Plaintiff’s complaint dismissed with prejudice.
[brief] This argument is thoroughly unconvincing as Plaintiff’s argument misstates the facts and the law.  It is black letter law that a trial court’s findings of fact are viewed deferentially and not de novo.  See, e.g. Horne v. Edwards, 477 N.J. Super. 302, 312-13 (App. Div. 2023), cert. denied 256 N.J. 439 (2024).  A trial court’s findings of fact “should not be disturbed unless ‘they are so wholly insupportable as to result in a denial of justice. ’”  Rova Farms Resort, Inc. v. Investors Ins. Co. of America, 65 N.J. 474, 483-84 (1974)(quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div. 1960), aff’d o.b. 33 N.J. 78 (1960).  A trial court’s factual findings are considered binding when “supported by adequate, substantial and credible evidence. ”  Rova Farms Resort, Inc., 65 N.J. at 484 (citing New Jersey Turnpike Authority v. Sisselman, 106 N.J. Super. 358 (App. Div. 1969)); Horne, 477 N.J. Super. at 313.  Plaintiff’s version of events, in which the March 15th phone call with [...] and his exclusion from the high school could only have been prompted by Plaintiff’s EEOC submission, distorts the actual timeline beyond all recognition.
[brief] (Sa1 at 10:45:08 to 10:45:21; Da46).  At that point, [...] began to book defendant.  (11T124-2 to 7; Sa1 at 10:45:23; Da46).  As [...] attempted to explain the process, defendant repeatedly interjected to profess his innocence and offer cooperation.  (11T124-8 to 17; Sa1 at 10:45:32 to 10:45:38; Da47).  [...] stated that before defendant told them anything, he had to fingerprint him.  (11T124-15 to 22; Sa1 at 10:45:38 to 10:45:40; Da47).  [...] acknowledged that defendant “said something about a lawyer,” and explained that once they were in the interview room, the detectives would reread his rights and he would have the opportunity to talk to them if he so chose.
[directive] The prosecutor shall immediately notify the Director of the Division of Criminal Justice in the event that the prosecutor is ordered by a court to participate in any such pretrial evidentiary hearing.  While prosecutors are required at all times to act in good faith in implementing these Guidelines, and could reasonably be expected and should be prepared at a status conference or other nonplenary proceeding to articulate a clear and reasonably specific explanation for their legitimate reasons for applying (or not applying) a Special Offense Characteristic, Aggravating or Mitigating Factor, Special Application and Enhancement Feature, or Downward Departure, prosecutors must vigorously and uniformly resist efforts by a defendant to use these Guidelines to interpose delay, to provide a new avenue for discovery not provided for in the Court Rules, or to afford an opportunity to cross- examine prosecution witnesses in a “test” trial.
[brief] The issue in this matter is whether the e-mail addresses of residents who signed up to receive governmental notifications, including emergency notifications, are subject to disclosure under the Open Public Records Act (“OPRA”).  Defendants-Appellants-Cross Respondents, the [...] and [...] (in his official capacity as records custodian) (hereinafter referred to as “Hoboken” or the “City”) have maintained that e-mail addresses in this specific situation should be subject to OPRA’s privacy provision, found at N.J.S.A. 47:1A-1 and therefore are not subject to disclosure.  Plaintiffs-Appellants [...] and [...]’s (hereinafter referred to as “Plaintiffs”) responding brief brings up red herrings but does not persuasively argue in favor of upholding the trial’s court determination in this matter.
[brief] THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S LEGAL FEE CLAIM DUE TO PLAINTIFF’S FAILURE TO COMPLY WITH THE ORDER REQUIRING THE PARTIES TO PROVIDE SUBMISSIONS TO THE COURT EXPLAINING THEIR POSITIONS AS TO HOW THE LEGAL FEE AWARD SHOULD BE DETERMINED ON THE REMAND AND FOR PLAINTIFF’S FAILURE TO MEET THE EQUITABLE AND OTHER REQUIREMENTS FOR FEE SHIFTING UNDER R. 4:42(9)(a)(2).  (Trial Court Order and Opinion dated August 31, 2022, Da271).
[brief] With regard to barring plaintiff’s experts from presenting opinions to the jury that are beyond the scope of their expertise, I’m going to deny that as well.  I agree that [...] can’t testify about the nursing standard of care, but he is qualified to testify to nursing home standards of care, and he can testify about the treatment of plaintiff as to the nursing home care.  And just like you said, [...], he can testify that [...] said that the nursing home standard of care was, in fact, violated and therefore led to poor care of [...].  At trial, plaintiff questioned all of the defense fact witnesses, including respiratory therapist [...]; director of nursing [...], RN; nurses [...], LPN and [...], LPN; and even administrator [...], LNHA at length regarding respiratory care and medications, often over the defense’s objections.
[brief] However, *City of Millville vs. [...]* was not decided factually on the basis that the contract did not require two signature lines to impose personal liability.  Two notes were involved.  The first note stated in pertinent part “the borrower shall personally guarantee the repayment of all funds borrowed”.  However, the “borrower” was defined as “[...]”, and, therefore, the first guarantee was simply a guarantee of the [...] by the [...], not by the defendant, [...].  The second note contained a clause stating “the undersigned hereby personally guarantees repayment of this loan made to the aforesaid corporation”.  The word “personally” was crossed out and the word “trusts” was put in its place.  The notes were signed by the corporation, [...], and by two trusts.  So there was no personal guarantee on either note because the language did not indicate that the defendants [...] or [...] personally guaranteed the repayment of the loan.  *Id* at 326-327.  In the present case the language above the signatures clearly states that the “undersigned [[...], [...] and [...]], “jointly and severally each hereby personally guarantee the obligations of the Tenant [[...]] herein”.
[brief] The Board found that Plaintiffs failed to meet their burden of proof with regard to both the positive and negative criteria applicable to such a variance and denied the application for the reasons stated in the Board’s [...].  Ja024.  Under the applicable standard of review, Plaintiffs have the heavy burden of overcoming the presumed validity of the Board’s variance denial decision, and the Trial Court’s decision upholding the Board.  Plaintiffs cannot meet their heavy burden because, as found by the Trial Court, the Board’s decision is consistent with applicable statutory and decisional law, and with the record.  Before the Board, Plaintiffs, as applicants, had the burden of proof of all elements of the use variance which they sought.  In its decision denying Plaintiffs’ application, the Board found, for reasons made clear in its Resolution and founded in the record before it, that Plaintiffs failed to present competent, credible evidence to the Board that proved Plaintiffs’ entitlement to the relief they requested.  A central legal question is presented by this case.
[brief] ”  *Id.* at 70.  Even if considered, Defendant has not shown that, on this motion record, the defense exists on the face of the Amended Complaint.  The motion record here is to be viewed favorably to Plaintiff and, with that view, does not establish that her positions in this case and in her bankruptcy case are irreconcilably inconsistent, that she acted in bad faith, or that no sanction existed short of dismissal with prejudice.
[brief] Plaintiff understood that his 5% interest was in consideration for his continued employment with [...] and his substantial and continued business development work on behalf of [...] and revenue to it.  Id., ¶ 25.  Moreover, Defendants received the benefit of [...] retaining its LLP status following the departure of the prior equity partner.  Nonetheless, when conveying the 5% equity interest to [...], [...] presented [...] with a Partnership Interest Purchase Agreement and Promissory Note (“Purchase Agreement”), which both parties signed.  Da36, ¶ 26, with Da83, Da87.  Neither document contained an arbitration clause, but to the contrary had a forum selection clause.
[brief] This is a completely nonsensical argument because [...] is (1) not an employee of [...] and (2) was not borrowed by anyone.  This argument is another attempt to throw proverbial spaghetti at the wall to see what sticks so Plaintiff can maintain her claims.  Despite Plaintiff’s creative machinations of the law, no factual or legal basis exists to find Defendant/Respondent Vida Cafe liable for Plaintiff’s injuries.  [...] submits that the trial court properly granted summary judgment in favor of [...] and therefore requests that this Court affirm the trial court’s decision and deny Plaintiff’s request for relief.
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[brief] The trial court merged the burglary, weapon possession and conspiracy charges into the kidnaping and robbery charges.  (19T 46-8 to 47-10)  The trial court sentenced petitioner to two terms of 23 years with an 85% parole disqualifier for the kidnapping of [...] and [...], to run consecutively to charges stemming from the other incidents and to each other.  (19T 42-32 to 44-6)  The trial court ran the kidnapping of [...] concurrent to those charges.  (19T 45-15 to 19)  It also sentenced petitioner to a consecutive eight-year sentence with a four-year period of parole disqualification for unlawful possession of a weapon.  In explaining the reason for running the kidnapping of [...] consecutively, the trial court asserted that "[t]his crime is separate and distinct from the other crimes committed on this date, including the kidnapping of [...]."  (19T 43-2 to 5)  The court said the same thing to justify the consecutive sentence for kidnapping [...].  (19T 48-16 to 18)  In support of this assertion, the trial court pointed only to the hour between when the home was initially entered and when [...] arrived.  (19T 43-20 to 22, 49-22 to 50-11)  In sentencing petitioner consecutively for unlawful possession of a weapon, it again stated that"[t]he elements of this offense are separate and distinct from the charges of kidnapping.  The defendant possessed the weapon and did not have a permit for it, and there can be no free crimes."  (19T 46-21 to 25)  The trial court also imposed consecutive sentences for the two incidents stemming from the car stop: an eight-year sentence with a four-year parole disqualifier for unlawful possession of a weapon and a one-year sentence for taking a motor vehicle without consent.
[brief] (4)  **Photographic Evidence**:  [...] next cherry picks small portions of Plaintiffs’ expert’s testimony and inaccurately argues that [...] changed his theory.  First, the cited reference to the transcript of the Rule 104 hearing are not even supportive of its argument.  Instead, the testimony referenced was offered in response to specific questions regarding a single photo.  Although [...] did use descriptive terms such as “immediate” and/or “abrupt” when describing the settlement/elevation change, when read in context with his testimony as a whole, whether settlement/elevation change was “abrupt,” “immediate,” or it had an “inadequate taper” is a simple a matter of degree.  As [...] explained, no matter what description is used, they’re both dangerous:  **Q:**  Is one more dangerous than the other?  **A:**  They’re both dangerous.  Is one more dangerous than the other?  If the hazard is larger and covers a greater distance, then there is going to be a greater risk that the hazard is going to be exposed.  It’s going to be exposed to the traveling public and there could be crashes as a result of that.  It doesn’t change the fact that whether it’s one little spot that has a two-inch [select], and then it’s tapered out and there’s, it’s still dangerous, period.  It’s in the travel lane.  It’s a dangerous condition, period.  (Pa0126).  Either way, these questions and answers do not negate that other photos and evidence establish the settlement was dangerous.  (3)
[directive] USE OF FORCE POLICY Addendum C | April 2025  Barricaded Individuals  5.4  Response by Mental Health Professionals.  Tactical Team and/or Crisis Negotiation Team  Commanders, when called to respond to an incident involving a barricaded individual, shall Section 5.2 and 5.3 promptly notify the on-call Mental Health Professionals selected under to be available to assist the team in accordance with pre-established protocol.  On-scene mental health professionals shall be assigned to a safe and secure area from which they are able to monitor the communications with the barricaded individual and be available to provide insight and expertise to both the crisis negotiators and command personnel.  If assisting either telephonically or via a virtual connection, mental health professionals should, to the extent practicable, be provided with information about the situation and the ability to monitor communications with the barricaded individual.  Command personnel should determine, in advance, the most efficient process for consulting with the mental health professionals.  13
[brief] This bill seeks to prohibit nursing homes from using pre-dispute arbitration agreements.  Fairness in Nursing Home Arbitration Act, S. 4087, 118th Cong. (2024).  The AAA policy statement and Fairness in Nursing Home Arbitration Act reflect a rational public policy approach against the use of pre-suit arbitration agreements in medical and nursing home malpractice claims.  Similar to controlling case law in New Jersey on informed consent that holds “a doctor has a duty to explain, in terms understandable to the patient, what the doctor intends to do before subjecting the patient to a course of treatment or an operation[,]” there should be continuity with New Jersey’s jurisprudence into the realm of analyzing pre-suit arbitration agreements.
[brief] In the end, based on “irrelevant” and inadmissible statements of the Tenant Defendants’ subjective intent, the Law Division re-wrote Article 17 to include the following provisions: (i) to define the walkway as a “common area”; (ii) to provide that any payments which may have been pursuant to Article 17 were for the removal of snow and ice from the walkways and parking lot; and (iii) to impose upon the Landlord an exclusive obligation to maintain the walkways.  Once again, however, “[i]t has been decided many times and in many cases that the court will not make a different or a better contract than the parties themselves have seen fit to enter into. ”  Washington Const. Co. v. Spinella, 8 N.J. 212, 217 (1951).  The court simply cannot rewrite the leases for the Respondents’ benefit.
[brief] There are two different sets of self-defense model jury instructions that apply to civilian-police altercations, both of which are based on the self-defense statute, N.J.S.A. 2C:3-4 (“Use of force in self-protection”).  The self-defense statute was amended to its present form in direct response to our Supreme Court’s decisions in State v. Mulvihill, 57 N.J. 151 (1970) and in State v. Montague, 55 N.J. 387 (1970).  These cases, discussed in detail below, require the jury to be instructed on self-defense where there is evidence that the defendant used force in self-defense during an altercation with a police officer.  The “Justification – Self-Defense” model jury instruction (hereinafter, “general self-defense model charge”) applies where there is evidence that the altercation between the defendant and the police officer took on the essential character of an altercation between private individuals.  See Model Jury Charges (Criminal), “Justification – Self Defense” (rev. June 13, 2011); Mulvihill, 57 N.J. at 158-59; Montague, 55 N.J. at 404-06.  The “Justification – Self Defense Resisting Arrest” model jury instruction (hereinafter, “resisting arrest self-defense model charge”) applies where there is evidence that a police officer used excessive force in conducting an arrest, and the defendant resisted in self-defense.  See Model Jury Charges (Criminal), “Justification – Self Defense Resisting Arrest” (approved Oct. 17, 1988); Mulvihill, 57 N.J. at 156-57.  Both charges should have been given here.
[brief] 2T38-4-11.  This involves a “process of looking at how someone could become exposed to a hazardous agent, with the goal being, establishing that the person, first of all, was exposed and second of all, the extent of which they’re exposed, which is really the dose. ”  2T38-14-19.  It focuses on specific causation.  2T124-15-24.  [...]’s exposure pathway analysis included five steps.  For [...]’s alleged injuries to be caused by his ingestion of food contaminated by indoor-growing mold, the evidence must be sufficient to satisfy each and every step.