ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[directive] As used in this section and in sections 3, 4, and 8 of P.L.2015, c.147 (C.2C:14-15, C.2C:14-16, and C.2C:14-20):  “Sexual contact” means an intentional touching by the victim or actor, either directly or through clothing, of the victim’s or actor’s intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor.  “Sexual penetration” means vaginal intercourse, cunnilingus, fellatio, or anal intercourse between persons or insertion of the hand, finger, or object into the anus or vagina either by the actor or upon the actor’s instruction.  “Lewdness” means the exposing of the genitals for the purpose of arousing or gratifying the sexual desire of the actor or of any other person.  “Intimate parts” means the following body parts: sexual organs, genital area, anal area, inner thigh, groin, buttock, or breast of a person.  (2)  Except as provided in subsection b. of this section, an application for relief under P.L.2015, c.147 (C.2C:14-13 et al.) may be filed by the alleged victim’s parent or guardian on behalf of the alleged victim in any case in which the alleged victim: (a) is less than 18 years of age; or (b) has a developmental disability as defined in section 3 of P.L.1977, c.200 (C.5:5-44.4) or a mental disease or defect that renders the alleged victim temporarily or permanently incapable of understanding the nature of the alleged victim’s conduct, including, but not limited to, being incapable of providing consent.
[brief] *State v. Rockford*, 213 N.J. 424, 440 (2013).  The purpose of the now-familiar *Miranda* warnings is “[t]o counteract the inherent psychological pressures in a police-dominated atmosphere that might compel a person ‘to speak where he would not otherwise do so freely. ’”  *S.S.*, 229 N.J. at 382 (quoting *State v. Nyhammer*, 197 N.J. 383, 400 (2009)).  *Miranda* warnings must be provided before “either ‘express questioning’ or the ‘functional equivalent’ of interrogation. ”  *A.A.*, 240 N.J. at 352 (quoting *Rhode Island v. Innis*, 446 U.S. 291, 300-01 (1980)).
[brief] *Cummings*, 321 N.J. Super. at 170.  Rather, an evidentiary hearing on defendant’s PCR petition should be granted only if: (1) defendant has established a prima facie claim for relief, (2) there is a factual dispute on a matter outside the scope of the record, and (3) the court determines, based on the papers submitted by both parties, that the issue has potentially sufficient factual and legal merit.  *State v. Cooper*, 410 N.J. Super. 43, 56 (App. Div. 2009); see also R. 3:22-10.  Where the “defendant’s allegations are too vague, conclusory, or speculative . . . an evidentiary hearing need not be granted. ”  *State v. Marshall*, 148 N.J. 89, 158 (1992).  As the PCR court correctly found, all of defendant’s claims failed to present a prima facie claim of ineffective assistance of counsel such that an evidentiary hearing would be warranted.
[brief] The expiration of the set time period for claiming adverse possession bars the owner’s right to bring an ejectment action and transfers title from the owner to the possessor.  Id. at 574.  The title passes to the adverse possessor when the owner fails to commence an action for recovery of the property within the specified time period.  *Patton v. North Jersey Dist. Water Supply Comm’n.*, 93 N.J. 180, 186 (1983).  The reading here is that the acquisition of title by adverse possession is based on the expiration of the statute of limitations.  O’Keefe v. Snyder, *supra* at 494.  The hallmark of adverse possession is the failure of the true owner to engage in an action for the recovery of the land subject to adverse possession within the designated statute of limitations.  *Maggio v. Pruzansky*, 222 N.J. Super. 567, 575 (App. Div. 2/18/1988).  The point of the statute of limitations is that it limits the time for re-entry onto the property by the true owner.  *Mannilo v. Gorski*, 100 N.J. Super. 140, 148-149 (1968).
[brief] Nevertheless, [...] argues that the trial court’s Opinion and Order must be reversed because there were disputed issues of fact regarding the route of the Union County Project through [...] and whether the route was essential to providing adequate service.  (Db35).  The question of law before the trial court was whether [...] possessed the requisite legal authority under New Jersey law to enact the Ordinance.  As correctly held by the trial court, as a matter of law, the answer is clearly “no,” because the Ordinance is preempted by state law.
[brief] The Arbitration Agreement satisfies *Atalese* and New Jersey law. **  1.  Plaintiffs do not even attempt to defend the trial court’s conclusion that the Arbitration Agreement needed to include express jury-trial-waiver language.  That’s because the court’s reasoning is indefensible under this Court’s precedents.  Instead, Plaintiffs now argue—for the first time in this litigation—that the Agreement is unenforceable because of its “structure”: they say it is too long and confusing.  (Pb14–20.)  This Court should not consider this argument because it was not raised below.
[brief] As an initial matter, defendant never requested the State, nor filed a motion to the court, to have the jail call redacted until the morning it was to be played to the jury.  The call was part of discovery for three years, so it was "known to the defense for quite some time."  (7T:177-4 to 17).  Although defense counsel was not defendant's original attorney, he nevertheless had all the discovery in the case in plenty of time to make any necessary motions regarding this jail call.  Defense counsel's failure to do so does not now equate to reversible error.  In any event, the call was relevant and material to prove that defendant fired the shot that killed [...].
[brief] The trial court wisely believed a limiting instruction was sufficient to constrain the prejudice, if any, caused by the jury's knowledge of [...]'s custodial status.  Specifically, it found that “[...]'s in-court identification of the defendants was based on past experience as opposed to viewing the defendants in handcuffs. ”  We find no reversible error, constitutional or otherwise, on this record.  [...] also asserts that his fifteen year sentence subject to the NERA is manifestly excessive.
[directive] The application form shall be placed in the prosecuting agency’s case file and shall be subject to review and audit by the Attorney General or his designee.  9.  Successive Applications In the event that a Designated Attorney declines to approve an application, or conditionally approves the application subject to a condition that has not been satisfied, the applicant or any other person representing the applicant’s law enforcement agency shall be prohibited from making an application to any other Designated Attorney without revealing in the successive application the fact that an application had previously been reviewed by another Designated Attorney.
[brief] (See also 1T 31)  On May 19, 2022, upon receipt of both appraisals, [...] provided written notice that she planned to open sealed offers for the purchase of the Boonton Property and bids would be accepted from [...] and [...] on May 30, 2022.  (142a)  However, pursuant to [...]’s January 25, 2022 Order, upon receipt of the appraisals, the parties were instructed to meet and discuss their options: list the properties or conduct a sealed bid.  (14a)  On May 25, 2022, Defendants filed an Order to Show Cause and Complaint for a temporary injunction, seeking to prevent the Trustee from conducting a sealed bid and selling the Boonton Property prior to judicial proceedings and a final determination on the merits of the case.  (467a)  [...] testified that:
[brief] **1T 12:7 – 13:2. **  As the *Nicholas* Court made clear “’When a physician is a specialist and the basis of the malpractice involves the physician’s specialty, the challenging expert **must** practice in the same specialty. ’”  **1T 12:18 – 12:22,** quoting *Nicholas* at 481 – 482.  The Trial Court then engaged in the necessary analysis of whether (i) [...] was a specialist or a general practitioner; and (ii) whether the treatment that is the basis of the malpractice action involves that specialty.  **1T 12:23 – 13:2.**  This analysis confirmed that [...] could not serve as a qualified affiant as to Defendant.  As the Trial Court noted, it was undisputed that Defendant is a specialist and that the treatment at issue involved her practice as an internist and her subspecialty of critical care medicine.
[brief] \(^2\)  The jury's finding of guilt on reckless manslaughter and on accomplice liability for reckless manslaughter would have been consistent with a finding that defendant failed to act when he learned what [...] had done in the house and that that failure caused the victim to suffocate.  instructions, and even though the verdict sheet never asked the jury to find the elements that would support defendant's conviction on accomplice liability for first-degree robbery.
[directive] Core Principle One  The Sanctity of Human Life and Serving the Community.  In serving the community, officers shall make every effort to preserve and protect human life and the safety of all persons.  Officers shall also respect and uphold the dignity of all persons at all times in a non-discriminatory manner.  1.1  A respectful and cooperative relationship with the community is essential for effective law enforcement.  That relationship can be undermined when force is used unnecessarily or unequally.  1.2  Every officer shall respect the sanctity of human life and the dignity of every person, and act to preserve every life, whenever possible, and avoid unnecessary injury to members of the public or themselves.  1.3  In carrying out their duties as guardians of public safety, officers shall at all times treat every person equally without regard to the individual’s actual or perceived race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, sex, gender identity or expression, disability, nationality, familial status, or any other protected characteristic under N.J.S.A. 10:5-1 et seq.  1.4  Every law enforcement and prosecuting agency operating under the authority of the laws of the state of New Jersey, including the New Jersey Department of Corrections and county correctional institutions, shall implement or adopt policies consistent with this Use of Force Policy, including the Policy’s addenda.  1  USE OF FORCE POLICY | April 2022
[brief] Rule 26(b)(3) provides that “[o]rdinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party in its representative (including the other party’s attorney, consultant, surety, indemnitee, insurer, or agent). ”  Id.  However, such materials may be discoverable when either allowed by Rule 26(b)(1), or when a party shows a “substantial need” for the information and that obtaining the information by another means would pose an “undue hardship. ”  Id.  Rule 34 provides that a party may request another party to produce “any designated documents or electronically stored information ... stored in any medium from which information can be obtained. ”  Id. at 34(a)(1)(A).  This request “must describe with reasonable particularity each item or category of items to be inspected. ”  Id. at 34(b)(1)(A).  “The party to whom the request is directed must respond in writing within 30 days after being served. ”  Id. at 34(b)(2)(A).
[brief] The FBI computer systems create a record every time a law enforcement official conducts a search of the index.  (See id. ¶¶ 12, 14).  ¶14.  At some point on January 11, 2006, [...] received a telephone call from [...] at the [...].  (Tr. II: 81; Ex. 12.1).  That call was made to a telephone line that was normally recorded.  (Ex. 12.1)  ¶15.
[brief] A.  Even if the Respondents could establish standing under the NJLAD, they fail to articulate any facts that support a finding of a violation under the NJLAD.  (M749-754).  Even if standing were not to be deemed an issue by this Court, Respondents still cannot demonstrate any discriminatory conduct, severe or pervasive, that occurred in this matter so as to damage Respondents under the NJLAD.
[brief] The Court Erred in Denying [...]'s Motion to Quash the August 17, 2023 subpoena as it is for Purposes of Harassment and Seeks Duplicative and Irrelevant Information.  (819a-821a)  Court rulings on discovery issues will be reviewed by the Appellate Division using an abuse of discretion standard.  Lipsky v. New Jersey Ass’n of Health Plans, Inc., 474 N.J. Super. 447, 463 (App. Div. 2023).  However, the Appellate Court will intervene where there is an “abuse of discretion or a judge’s misunderstanding or application of the law. ”  Id.  In this matter it is respectfully submitted that the trial court did not properly apply the applicable law when rendering its decision.  More specifically, the trial court failed to properly apply the factors set forth in Berrie v. Berrie, 188 N.J. Super. 274,282 (Ch. Div. 1983) and overlooked the fact that the subpoena seeks to obtain information which is irrelevant and confidential.
[brief] When jury instructions include a legally inappropriate path to a verdict, a defendant’s conviction must be reversed.  The need for reversal is in no way lessened simply because the jury instructions also include a legally viable path to conviction.  See State v. Condon, 391 N.J. Super. 609, 618 (App. Div. 2007) (reversing defendant’s conviction when the jury was instructed it could convict on the applicable substantial step attempt theory and the inapplicable impossibility attempt theory because “there is no assurance that the jurors understood and applied the correct legal principles in reaching their verdict”).
[brief] The Planning Board also heard from Plaintiff's expert, [...], a licensed professional planner, who opined the Plan was completely inconsistent with Chesterfield's Master Plan.  (1T17:9-23).  Rodrigues pointed out the property was zoned as agricultural in the Master Plan.  (1T18:6-8).  Moreover, the 2017 Master Plan Reexamination Report was devoid of any mention of warehousing or distribution facilities in the town.  (1T18:13-19).  He also rebutted the notion that a warehouse of this large size would not generate significant truck traffic in the area.  (1T19:18-23).  At the conclusion of the meeting, the Planning Board adopted a motion finding the Plan was not inconsistent with the Master Plan and referred the Plan back to the Committee.  (1T56:9-57:20).  The Committee held another meeting on October 27, 2022, to vote on the adoption of Ordinance No. 2022-15.
[brief] State v. Malik, 365 N.J. Super. 267, 274 (App. Div. 2003).  In reading statutory language, courts will give words their ordinary meaning absent any direction from the Legislature to the contrary.  In Re Young, 202 N.J. 50, 63 (2010).  Here, the Board’s determination is reasonable and complies with the governing statute.  The unambiguous language of the Ricci Act provides:  A member or retiree shall not be eligible for the presumption or recalculation under this subsection unless within two years of the effective date of this act, P.L.2019, c.157, the member or retiree files a written and sworn statement with the retirement system on a form provided by the board of trustees thereof indicating the dates and locations of service.  [L. 2019, c. 157 (codified at N.J.S.A. 53:5A-10(e)(4)).]  Thus, under the plain language of the statute [...] is ineligible for the presumption or recalculation provided under the Ricci Act because he failed to file by July 8, 2021.  Further, while New Jersey pension statutes are construed liberally because of their remedial character, Geller v. Dep’t of Treasury, 53 N.J. 591, 597-98 (1969), “an employee has only such rights and benefits as are based upon and within the scope of the provisions of the statute. ”  Francois v. Bd. of Trs., Pub. Emps.’ Ret. Sys., 415 N.J. Super. 335, 349 (App. Div. 2010) (citation omitted).  Here, the statute provides for the benefit if a retiree files for it within two years of the effective date of the Ricci Act, i.e., by July 8, 2021.  [...] did not file for the benefit within the time permitted by the statute, so even under a liberal construction, the statute expressly states he is ineligible for the benefit he now seeks.  Nevertheless, [...] argues that the limitation period in the statute should not be strictly applied because it “fails to advance the legislative purpose of the Ricci Act. ”  (Pb14).  But this is a misinterpretation that contradicts the Legislature’s actual intent, as explicitly stated in the statute it enacted.
[brief] *State v. Nelson*, 173 N.J. 417, 471 (2002) (quoting *State v. Macon*, 57 N.J. 325, 333 (1971)).  To be clear, raising objections during a post-trial motion because you are unhappy with the verdict does not render them timely.  Rather, such objections are treated as untimely and judged under the plain error standard.
[brief] As noted by defendant’s weather expert, there was precipitation in the form of rain on numerous days prior to plaintiff’s slip and fall.  • Rain 12/1/21; 12/2/21; 12/6/21; 12/11/21; 12/15/21; 12/18/21; 12/19/21; 12/21/21; 12/22/21; • Snow 12/24/21 (0. 3, due to melting, no snow cover remained at the end of the day)  • Rain 12/25/21; 12/27/21; 12/28/21; 12/29/21; 12/30/21; 12/31/21; 1/1/22; and 1/2/22 rain, but no snow or ice cover was present throughout the day, high temp 59, low 37 (Da3, report 11/17/23 [...]).  Thus, once again, the opinion of plaintiff’s liability expert that “[t]he design of the stairs allows rain water to accumulate on the stairs creating a slip and fall hazard” has no basis in fact.  (Pa463).  Thus, any “opinion” that the stairs were slippery when wet prior to the morning of plaintiff’s fall which occurred during an ongoing storm event in the form of freezing rain is without merit.
[brief] Under both statutes, arbitration is fundamentally a matter of contract and should be regulated according to contract principles.  *Antonucci v. Curvature Newco, Inc.*, 470 N.J.Super. 553 (2020), citing *Rent-A-Center, W. Inc. v. Jackson*, 561 U.S. 63 (2010).  An agreement to arbitrate must be the product of mutual assent and requires a meeting of the minds.  *Ogunyemi*, No. A-1703-22, 2024 WL 1243552 (N.J.Super., App. Div. March 25, 2024), quoting *Atalese*.\(^9\) --- \(^8\)  Both Defendants assert that the Plaintiffs knew, understood and agreed to FAA and NJAA requirements in the (claimed???) arbitration agreement
[brief] Liberty Terrace, LLC v. Rent Leveling Bd. of Twp. of N Bergen, 2011 N.J. Super. Unpub. LEXIS 970, 8 (App. Div. Apr. 18, 2011).  Further, Agency decisions are entitled to “substantial deference. ”  See In re Hermann, 192 N.J. 19, 28 (2007).  In reviewing a decision of an administrative agency, this Court must “defer to an agency’s expertise and superior knowledge of a particular field. ”  Dep’t of Children & Families, Div. of Youth & Family Servs. v. T.B., 207 N.J. 294, 301 (2011) (quoting Greenwood v. State Police Training Ctr., 127 NJ. 500, 513 (1992)).  The Superior Court is bound to uphold an agency’s decision unless there is a clear showing that it is arbitrary or capricious.
[brief] THE TRIAL COURT IMPROPERLY CONSIDERED THE ELIMINATION OF THE CONDITION OF APPROVAL REQUIRING THE ROUTE 33 TRAFFIC SIGNAL (4T).  In making its decision on the underlying issue in the present action, the Trial Court selectively determined that the Prior Approvals impacted the actions of the Board in deciding the Respondents’ Application.  Specifically, the Trial Court found that the granting of the variance relief in the Prior Approvals required the Board to grant the subsequent variance relief in the Respondents’ Application.  However, the Trial Court ignored the fact that the Route 33 Signal was a voluntary condition of approval agreed to by the applicant in the Prior Approvals, as well as voluntarily agreed to by the Respondents during the hearing on the Application.
[directive] The New Jersey Wiretap Act applies only to oral, wire and electronic communications.  While not specifically covered by this law, reasonable limitations should exist on video surveillance.  The primary issue is one of privacy.  Video surveillance, especially covert surveillance, should not be used in areas where employees have a high expectation of privacy, such as locker rooms and bathrooms.  In public areas, video surveillance may be 40 INTERNAL AFFAIRS POLICY & PROCEDURES | August 2020 used.
[brief] ...............................................................................  48 State v. Lionetti, 93 N.J.L. 24 (Sup. Ct. 1919) ...............................................................  43 State v. Macon, 57 N.J. 325 (1971) .............................................................................. 35, 36 State v. Marshall, 123 N.J. 1, (1991)  .............................................................................. 69 State v. Marshall, 148 N.J. 89 (1997)  .............................................................................. 68, 69 State v. Martini, 160 N.J. 248 (1999) ............................................................................ 68, 69, 70, 71
[brief] See, e.g., *Dobco, Inc. v. Brockwell & Carrington Contractors, Inc.*, 441 *N.J. Super.* 148 (Law Div. 2015); *Tec Electric, Inc. v. Franklin Lakes Board of Education*, 284 *N.J. Super.* 480 (Law Div. 1995).  Further, “contract claims against boards [of education] do not arise under the school laws but rather from statutory and common law. ”  *Archway Programs, Inc. v. Pemberton Township Board of Education*, 352 *N.J. Super.* 420, 425 (App. Div. 2002), citing *Picogna v. Board of Education of Cherry Hill*, 249 *N.J. Super.* 332, 335 (App. Div. 1991).  “Claims of the latter type are typically and appropriately adjudicated in the courts. ”  *Archway*, supra., citing *South Orange-Maplewood Educ. Ass’n. v. Board of Education of South Orange & Maplewood*, 146 *N.J. Super.* 457, 463 (App. Div. 1977).  And when the question presented is solely one of law, involving statutory construction, administrative remedies need not be resorted to.  *Wilbert v. DeCamp*, 72 *N.J. Super.* 60, 68 (App. Div. 1962).  See also *Silverman v. Millburn Township Board of Education*, 134 *N.J. Super.* 253, 258 (App. Div. 1975).  Indeed, [...] is unaware of any instance of a commercial dispute such as this being adjudicated in the Department of Education, with good reason.  This case concerns a contract awarded and entered into pursuant to the Public Schools Contracts Law and what is in essence a breach of contract claim, which turns on the construction of a single statute having nothing to do with education.  New Jersey law does not support the proposition that construction and application of that statute lies within the exclusive jurisdiction of the Commissioner, and [...]'s argument to that effect warrants out of hand dismissal.
[brief] On the morning of March 19, 2009, [...] spoke with surveyor [...].  (Pa93 at ¶18)  Rigg told [...] he needed [...]'s current computer files (digital files) for the grading plan and did not want to perform the staking based on paper plans.  (Pa93 at ¶18)  [...] told Riggs he did not have any computer files.  He told Rigg to contact [...] or [...] to obtain [...]'s current computer files.  (Pa93 at ¶18).  A "Call Log" from Rigg's office for that morning confirms that [...] told Rigg to call [...] for the digital file and that Rigg left a phone request for engineer [...] at [...] for the digital file.