ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] PETITIONER FAILS TO STATE A PRIMA FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.  “The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee that the accused shall have the right to the assistance of counsel in a criminal prosecution. ”  Jones, 219 N.J. at 310.  “[T]he right to counsel is the right to the effective assistance of counsel. ”  Strickland v. Washington, 466 U.S. 668, 686 (1984) (internal quotation marks omitted).  An ineffective assistance of counsel (IAC) claim has two components: (1) actual deficiency, or “errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by Sixth Amendment”; and (2) “the deficient performance prejudiced the defense” such that “the result [is] unreliable. ”  Id. at 687.  Our Supreme Court has adopted the same standard with respect to a defendant’s right to counsel under the New Jersey Constitution.  State v. Fritz, 105 N.J. 42, 58 (1987).  “Ineffective-assistance-of-counsel claims are particularly suited for post-conviction review because they often cannot reasonably be raised in a prior proceeding. ”  Preciose, 129 N.J. at 460.  In his instant PCR petition, defendant claims that one of his prior attorneys (he does not specify which) was ineffective for failing to uncover [...]’ habeas petition and in failing to raise his Brady-Giglio claim.  (Db7-9).  Because the discovery (and alleged withholding by the State) of [...]’ habeas petition would not have changed the outcome of defendant’s trial and does not entitle defendant to a new trial, defendant cannot satisfy the prejudice prong of the Strickland-Fritz test.  He fails to state a prima facie claim of ineffective assistance of counsel, and therefore, he is not entitled to an evidentiary hearing.  Flores, 228 N.J. Super. at 590.  **CONCLUSION**
[brief] ballot so voted shall not be counted...  in voting for presidential electors an elector may vote in the irregular balloting device a ticket made up of the names of persons in nomination by different parties, hereafter referred to as a split-ballot, or partially of the names of persons so in nomination and partially of persons not in nomination, or wholly of names of persons not in nomination by any party, hereafter referred to as an irregular ballot; such split or irregular ballot for presidential electors shall be deposited, written or affixed in or upon the receptacle or device provided on the machine for the purpose...
[brief] The Entire Controversy Doctrine does not bar claims that were unknown, unrisen or unaccrued at the time of the original action.  Id. at 285.  Hobart Bros. Co. v. Nat'l Union Fire Ins. Co., 354 N.J. Super. 229, 241(App. Div. 2002).  To that end, courts who are deciding whether a failed disclosure is inexcusable will make "determinations of what 'impelled' it and whether that course was reasonable."  Id.  Plaintiff's failure to join Defendants was inexcusable based on numerous examples from the record where Plaintiff consistently made strategic decisions that resulted in unfair consequences to the Defendants.
[brief] The “Leading Object” Exception Does Not Bar Defendants’ Statute of Frauds Defense (Da1-69; Da84-98)  At the trial court level, Plaintiff incorrectly argued that Defendants’ Statute of Fraud defense fails under the “leading object” exception.  This exception has been described as follows:  When the leading object of the promise or agreement is to become guarantor or surety to the promisee for a debt for which a third party is and continues to be primarily liable, the agreement, whether made before or after or at the time with the promise of the principal, is within the statute, and not binding unless evidenced by writing.  On the other hand, when the leading object of the promisor is to subserve some interest or purpose of his own, notwithstanding the effect is to pay or discharge the debt of another, his promise is not within the statute.  (2 Corbin on Contracts s 366, at 273—74 (1950)).
[brief] The Investment was the Building [...] repeatedly testified that he viewed the investment as being the entire apartment building.  1T14:17-19.  (When asked “and your original investment to this property was of the entire building, is that correct?” [...] answered, “Correct.”); 1T21:24-25 (When asked, “Did you invest in this unit or did you invest in the building as a whole?” [...] answered “Invested in the building as a whole”).  On the application, the owner is required to put the purchase price for the property on which it seeks a hardship.  [...] put the purchase price for the entire building.  DA38.  The deed produced by [...] for the hardship application is for the building, not Unit 11.  DA57-59.  All the evidence shows that “the investment” was an 11 unit apartment building.  That investment no longer exists.  [...] made the choice to transform, partition, and monetize the apartment building for a substantial profit, of which up to $755,562 still remains in [...]’s assets.
[directive] See N.J.S.A. 2A:162-17.  Consistent with that legislative policy, under this Directive a defendant need be charged by complaint-warrant only when some release condition or conditions are appropriate to manage the risk of flight, the risk to the safety of the community, witnesses, and victims, and/or the risk that defendant will obstruct the criminal justice process.  Thus, for example, in any case where the State would not object to the defendant being released “on personal recognizance,” see N.J.S.A. 2A:162-17(a), it might be just as appropriate to charge by means of a complaint-summons, obviating the need for police to transport the defendant to a county jail and detain him or her there for up to 48 hours.  In other words, charging by complaint-summons rather than by complaint-warrant generally would be 7  N.J.S.A. 2A:162-17 provides that a court must make the pretrial release decision “without unnecessary delay, but in no case later than 48 hours after the eligible defendant’s commitment to jail. ”  Prosecutors when preparing for a first appearance in complaint-warrant cases should be advised that the Administrative Director of the Courts has indicated to stakeholders that the Judiciary’s goal is to have the pretrial services program prepare its recommendations as to appropriate release conditions within 24 hours of a defendant being taken to county jail after a complaint- warrant is issued.  Accordingly, the court may schedule a first appearance well before the expiration of the 48-hour statutory deadline.  Page 26 appropriate when the facts known at the time of the charging decision reliably indicate that the defendant requires no monitoring or only minimal monitoring upon release.  A complaint- warrant, in contrast, generally should be sought when the defendant poses a moderate or high some level of risk of flight, new criminal activity or violence, or threat to the criminal justice process that should be managed by monitored release conditions, if not by the defendant’s pretrial detention.
[brief] Yet another common argument used to defeat claims such as those pled in the complaint is that residents aren’t entitled to relief against their own municipalities because the residents are essentially suing themselves.  New Jersey’s laws allow residents to sue municipal entities for breach of contract.  See N.J.S.A. 59:13-1 to-10.  Plaintiff spent money and paid defendant for services delivering contaminated water.  New Jersey courts view standing liberally. \textsuperscript{109}  Standing requires “a sufficient stake and real adverseness with respect to the subject matter of the litigation” and a “substantial likelihood of some harm visited upon the plaintiff in the event of an unfavorable decision. ”\textsuperscript{110}  By being sold services that failed to deliver uncontaminated water, plaintiffs suffered damages for a breach of contract, violation of the covenant of good faith and fair dealing and promissory estoppel.  \begin{itemize}  \item \textsuperscript{108}  Lemelledo v. Beneficial Management Corp. of America, 150 N.J. 255, 271, 696 A.2d 546 (1997).  \item \textsuperscript{109}  Crescent Park Tenants Ass’n v. Realty Equities Corp. of N.Y., 58 N.J. 98, 101 (1971).  \item \textsuperscript{110}  In re Adoption of Baby T., 160 N.J. 332, 340 (1999).  \end{itemize}
[brief] 5.  All information required to [be] released by law enforcement under Section 3(b) of the New Jersey Open Public Records Act, N.J.S.A. 47:1A-3(b) where (i) an arrest has not yet been made; and (ii) where an arrest has been made.  North Jersey Media Group v. Lyndhurst, supra at 81.  There is, therefore, a significant distinction between “records” and “information”.  Thus, if a requestor seeks “information”, it must be requested.  It cannot be assumed.  To hold otherwise would now impose an increased and distinct burden and liability on the records custodian or other municipal official.  While the Lyndhurst fact pattern is the reverse of this case, the principle is the same, and the holdings of the Appellate Division and the Supreme Court apply with equal force.  “Records” are not “information” and vis-a-versa.
[brief] Pa56.  [...] was present and involved in the aftermath of the World Trade Center attacks which took place on September 11, 2001.  Pa56.  [...] certified that he participated in the rescue, recovery, and/or cleanup at the World Trade Center site between September 11, 2001, and October 11, 2001, or September 11, 2001, and/or September 12, 2001.  Pa56.  [...] also certified that he suffers from a qualifying condition or impairment under the Ricci Act.  Pa56.  [...] submitted the Ricci Act Eligibility Registration Form and Request for Amended Benefits Form with his affidavit.  Pa58.  Pa60.  On March 3, 2023, a Petition to the [...] was filed on behalf of [...] and many others.
[brief] On October 30, 2023, [...] and [...] (the personal injury claimants) filed a motion for reconsideration of the order of October 6, 2023 discharging [...], which was entered on October 10, 2023, as well as the order of October 6, 2023, entered October 10, 2023, denying the motion/cross-motion of the [...] to intervene and/or to deny the motion of the receiver to be discharged.  (Ca1).  [...] denied the motion for reconsideration on November 17, 2023.  (Ca1).  ARGUMENT I.
[brief] THE TRIAL COURT’S LEGALLY CORRECT DISCOVERY RULING SHOULD BE DENIED.  (Da444-7)  The Appellate Division “will rarely grant interlocutory appeal in relation to orders dealing with discovery. ”  Klimowich v. Klimowich, 86 N.J. Super. 449, 450 (App. Div. 1965).  In general, this Court harbors an “inhospitable attitude toward most interlocutory appeals” because they run counter to the judicial policy favoring “uninterrupted proceeding at the trial level with a single and complete review” post-judgment.  See State v. Reldan, 100 N.J. 187, 205 (1985) (internal citations omitted).  The grant of leave to appeal pursuant to R. 2:2-4 is “highly discretionary” and is “exercised only sparingly” when the interest of justice so requires.  Id.  Leave should only be granted where there has been a showing that “the desired appeal has merit” and that “justice calls” for immediate review due to factors such as “some grave damage or injustice” resulting from the trial court’s order or when the appeal, if sustained, would terminate the litigation.  Brundage v. Estate of Carambio, 195 N.J. 575, 599 (2008) (internal citations and quotation marks omitted).  Here, none of the circumstances warranting interlocutory review are met.  [...] seeks leave to appeal from orders dealing with discovery, which is disfavored.
[brief] (UNKNOWN), Respondents.  SUPERIOR COURT OF NEW JERSEY APPELLATE  DIVISION  DOCKET NO.: [...]  On Appeal  From: SUPERIOR COURT, LAW DIVISION  MORRIS COUNTY DOCKET NO.: [...]  Sat Below: Hon. [...], J.S.C. BRIEF ON BEHALF  RESPONDENTS, [...], MORRIS COUNTY  CORRECTIONAL FACILITY, [...], OFFICER [...], OFFICER [...] AND OFFICER [...]  [...] MORRIS COUNTY  COUNSEL [...]  SPECIAL MORRIS COUNTY COUNSEL  [...], Esq.  Bar ID No.: 017182008  [...]  Ph.: [...]  [...]  Attorneys for Respondents  [...], Esq.  On the Brief
[brief] She noted with great care and precision in her December 1, 2022 decision:  “[v]iewing that testimony in the light most favorable to plaintiff, at some time prior to the retirement of [...], [...]’ s predecessor, the tenant, that is, defendant [...]’s employees, knew about the electrical panel at issue, knew that Line 36 was the breaker that controlled the emergency light at issue, knew that particular circuit also controlled another light in the office, that they determined, and that they determined what the circuit breaker referenced on Line 36 controlled via trial and error, and after doing so, [...] and Mr. Struble stay after work to label the breakers properly.  (T53).  The motion judge also considered plaintiff’s argument, which was devoid of any factual foundation, that the condition existed before the property was given to the tenant.  Following the tenets of Section 358 and interpretive case law, the motion court correctly rationalized that it doesn’t matter because at some point before the accident the tenant was aware of the condition, a factor which nullifies imposition of liability.  In a well-reasoned decision, the motion court concluded:  “…[E]ven if the allegedly defective condition regarding the legibility of the electrical panel existed at the time defendant [...] Realty II provided defendant [...] [Beverage] with exclusive control of the premises, the tenant defendant [...] knew of the condition or had reason to know of the condition prior to decedent’s accident, and defendant [...] [Beverage] had the opportunity and indeed attempted to remedy the condition prior to the accident at issue. ” (T53-54).  The court further concluded this defendant cannot be liable: “because the tenant had, if not had knowledge and tried to do something about it, certainly the testimony is undisputed that they were aware of the condition of the electrical panel box....” (T54).  The motion record was devoid of factual disputes on any salient facts.  The motion court properly assessed and evaluated the facts in the context of the controlling law as set forth above.  The motion court’s ruling should be affirmed.
[brief] Tenant’s attempt to avoid its contractual obligation to reimburse Landlord for its legal fees by shifting blame for the Underlying Action to Landlord has no basis in reality.  Simply put, the Underlying Action was necessitated due to Tenant’s admitted failure to make any payment due and owing under the Lease for five (5) months.  At any point, Tenant had the option to seek dismissal of this proceeding by paying the delinquent Rent either to Landlord or the lower court.  See N.J.S.A. 2A:18-55.  Tenant simply refused to do so until entry of the Post Trial Order nearly twenty (20) months after such Rent was due.  Instead of timely paying the amounts due and owing to Landlord under the Lease, Tenant spent the last four (4) years raising every conceivable legal and equitable defense as to why Tenant’s breaches of the Lease should be excused, including arguing that enforcing the Lease as written violated equitable doctrines of unclean hands, unjust enrichment, frustration of purpose and impossibility.  (Pa116).  Rebuffing such specious defenses required Landlord to expend significant legal fees.  (Pa47-97).  In a desperate attempt to avoid paying the full amount due and owing under the Lease, Tenant further argued in its second post trial submission that it was not obligated to pay $16,659.25 in Common Area Maintenance (“CAM”) charges despite: (i) its express contractual duty to do so; (ii) the admission in Tenant’s first post-trial submission that this exact amount was due; and (iii) the indisputable fact that six (6) months prior to trial Landlord and Tenant underwent a formal reconciliation of these charges in accordance with the terms of the Lease, which reconciliation Tenant failed to timely challenge in accordance with the terms of the Lease.
[brief] Second, the City relies upon its own employees: police officers, fire fighters and DPW employees who constantly traverse through the City around the clock; they will alert and notice the DPW to any tree issues.  [...] explained at his deposition that the City has thousands of trees, and only he, three other individuals, and a truck are devoted to addressing these issues.  [...] further testified that unless a homeowner complains about a tree, the City does not have the resources to have a regular tree maintenance schedule.  However, when a homeowner does call, [...] made it clear this will generate a work order, and the matter is then attended to in the normal course of events.  [...] reasoned the City takes this approach because it is the most prudent, efficient and economical manner to address the maintenance and/or removal of trees.  Thus, there is nothing about the City’s approach to dealing with its tree issues that is palpably unreasonable in this matter.  Again, until this matter came to light, the City was unaware that there was any issue at all with the subject tree.  Accordingly, summary judgment was proper as to the City.
[brief] It led to Court filings (w/formal accounting for Surrogate Audit) by [...], [...], & myself, NONE of which would have been required if [...] worked to finalize a Settlement.  In their $124,399 invoices ($10,902.24 from Nov. 11, ‘21 to Jan. 31, ‘22, & $113,497.04 from Feb. 1 to Oct. 25, ‘22), there were ZERO entries for work on a Settlement since they always refused it.  Court should NEVER have rewarded them for those wrong decisions.
[directive] An example of such an agreement appears in Appendix A.  2.  Before signing a stationhouse adjustment agreement, the law enforcement officer shall advise the juvenile that: a.  Violations of the stationhouse adjustment agreement may result in the filing of a juvenile delinquency complaint for the conduct that gave rise to the stationhouse adjustment; and b.  Future delinquent activity could result in more serious action taken by the juvenile justice system (e.g., probation, loss of driver’s license, detention) and collateral consequences (e.g., DNA collection, restrictions on college financial aid, limitations on career opportunities).  3.  The following parties shall sign the stationhouse adjustment agreement: a.  The juvenile; guardian/caregiver/designee;9 b. The juvenile’s parent or c. The law enforcement officer; and d.  Victims may, but are not required to, sign the stationhouse adjustment agreement.  Chaplain and faith-based programs may be used only with the consent of the juvenile, as consideration must be 7 given to the faith, or no faith, to which the juvenile subscribes, and resources should be in place to provide equivalent, alternative programming, so a juvenile has equal access to effective stationhouse adjustment services.  Law enforcement agencies are encouraged to partner with non-profit and government-run community 8 organizations to assist with the supervision of stationhouse adjustment agreements.
[brief] It is well established that “creating and distributing flyers”—even those that are “vulgar[] and mean[]”—is protected under the First Amendment and Article I, Paragraph 6 of the New Jersey Constitution.  *See State v. Burkert*, 231 N.J. 257, 263, 269 (2017) (affirming vacatur of harassment conviction for creating and distributing “wholly unprofessional and inappropriate” flyers in the workplace “in light of our constitutional free-speech guarantees. ”).  It is likewise beyond debate that Defendants’ alleged protest activity is quintessential First Amendment activity.  *See Grayned v. City of Rockford*, 408 U.S. 104, 116 (1972) (“[P]eaceful demonstrations in public places are protected by the First Amendment. ”).  And the freedom of the press plainly encompasses the right to publish flyers in a newspaper, as Defendant [...] is alleged to have done here.
[brief] Likewise, the ¹ This is not a situation in which “the traditional positions of plaintiff and defendant are transposed. ”  See 2 McCormick on Evid. § 337 n.21 (8th ed 2022).  Instead, [...] as the plaintiff sought “a declaratory judgment as a basis for some further affirmative claim against” [...], i.e., to prohibit her from asserting certain rights in the Palm Beach Property, and for breach of the Settlement Agreement’s covenant of good faith and fair dealing.  Id. (See Da14-16).  As such, “there is no special problem; the burdens will be allocated as usual, with the major share going to the plaintiff.
[brief] Plaintiffs also assert that the Trial Court “erroneously barred [...]'s expert report and granted Defendant’s summary judgment by impermissibly creating its own standard and failing to apply the standard set forth by the Supreme Court”.  However, Plaintiffs fail to explain what alleged erroneous standard the Trial Court applied in assessing [...]'s opinions related to the ability of Plaintiffs’ new business to develop the proposed project successfully and establish damages with reasonable certainty.  Stated simply, [...] offered testimony as to what profit would be realized by “a” developer which undertook and completed the subject project, but offered no opinions as to whether these “Plaintiffs” could have successfully undertaken and completed the project.  Essentially Plaintiff assert that it only needs to prove with reasonable certainty what the profit would be realized if the project was built successfully.  That misses the mark and is not the standard set by the Supreme Court.  The focus is not on the theoretical profit numbers, but on these Plaintiffs and its abilities, or lack thereof, to undertake and complete the proposed project.  On that critical issue [...] could not offer any testimony.
[brief] D’Agostino, 242 N.J. Super. at 275-76; see also Pressler & Verniero, Rules Governing the Courts of the State of New Jersey, cmt.  1 to R. 4:14-2 (stating “[a]s to corporate employees whose attendance may be secured by notice rather than subpoena, see *D’Agostino v. Johnson & Johnson*, 242 N.J. Super. 267 (App. Div. 1990), holding that a corporate party is required to produce those directors, executives and employees of its subsidiaries who are under its control,” which presumes that not all are under its control).  Ultimately, the *D’Agostino* court concluded that the entity defendant had sufficient control to permit a deposition notice to issue for depositions of certain officers and directors of the subsidiary entities.  *See D’Agostino*, 242 N.J. Super. at 276 (noting that the trial court’s order compelling the depositions was proper in light of the “record presented” relating to the relationship between the entity and its subsidiaries).  The trial court in this matter considered and distinguished *D’Agostino*.  Notably, while the *D’Agostino* court specifically noted that certain of the requested deponents had submitted certifications in the litigation in support of the entity defendant (*see D’Agostino*, 242 N.J. Super. at 274-276), [...] has not done so here, nor has he inserted himself into this litigation in any other way.  While Plaintiff also contends that federal case law interpreting Federal Rule of Civil Procedure 30(b)(1) is “instructive” on the issue presented to this Court, the fact that the trial court did not rely upon non-binding federal case law interpreting a Federal Rule is not an abuse of discretion.