ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The trial court’s failure to instruct the jury on the lesser-included offense of second-degree robbery denied [...] a fair trial, requiring reversal.  The evidence presented at trial clearly indicated the need to instruct the jury on the lesser-included offense of second-degree robbery (unarmed robbery) as to [...].  The trial court’s failure to do so had the clear capacity to cause an unjust result where, based on the facts on the record, the jury could have acquitted [...] of first-degree robbery (armed robbery) and convicted him of the lesser offense of second-degree robbery instead.  If a lesser-included charge is clearly indicated by the evidence, a judge is duty-bound to provide instructions.  *State v. Garron*, 177 N.J. 147, 180 (2003) (citing *State v. Powell*, 84 N.J. 305, 319 (1980)).
[brief] For example, in Wollen v. Gulf Stream, 468 N.J. Super. at 498, this Court ruled that an arbitration provision on a website was unenforceable against a consumer where the agreement was embedded under other pages, did not require any express assent, nor reasonable notice of its existence:  As we have recognized in the context of whether multiple writings constitute a single contract:  “In order for there to be a proper and enforceable incorporation by reference of a separate document ... the party to be bound by the terms must have had ‘knowledge of and assented to the incorporated terms.
[brief] (TRVa1.)  As to [...], the Complaint alleges two counts by [...]: breach of contract and promissory estoppel.  (TRVa5-8, at ¶¶ 29-47; and TRVa8-9, at ¶¶ 48-60.)  The Complaint also demands, on behalf of both Plaintiffs, judgment that [...] is owed defense and indemnity from [...] in the [...], and that Plaintiffs be reimbursed for all fees and expenses incurred for the [...] and the [...].  (TRVa13-17, at ¶¶ 83-110.)  On June 17, 2019, [...] filed an Answer with Affirmative Defenses, a Counterclaim against [...] for rescission, and a Crossclaim against all co-defendants for contribution based on their potential liability.  (TRVa711-732.)  The Affirmative Defenses included: [...] was not enrolled in the CCIP at the time of the Accident; and the CCIP is void *ab initio* due to [...]’s misrepresentations in the CCIP application process.  (TRVa748-51.)  On June 21, 2019, [...] filed an Answer, along with the projected “realignment” Crossclaims against [...]. (TRVa685.)  [...] amended its Answer in 2022, adding several affirmative defenses, including: detailing [...]’s, [...]’s and [...]’ awareness that [...] was not enrolled in the CCIP; [...]’s and [...]’ determination that coverage for the Accident was not excluded under Wrap-Up Exclusions in their policies; and [...]’s Sole Agent for Insured Endorsement.  (TRVa733-755.)
[brief] The trial court specifically addressed the potential effect of having the jury hear that defendants were in custody, stating:  I had suggested to counsel to talk to their clients about in their cross-examination and their exploration of this viewing, if they wanted to consider not mentioning handcuffs, just the fact that the two defendants walked in with them and sat at counsel table ... did that have an [e]ffect on you in making your identification of them....  I'm leaving it to them to think about in weighing the prejudice they think it will have to the jury by hearing the information about handcuffs.  Therefore, although defense counsel might have reasoned that cross-examination of [...] would be less compelling without evidence that defendants were observed as they were, this was a purposive decision intended to better impeach the credibility of [...]'s in-court identification.  Ordinarily, “[s]trategic decisions made by defense counsel will not present grounds for reversal on appeal. ”
[brief] 6T at 65.  Any assumption that [...] would have obtained the same extraordinary award of more than $122 million dollars in public, taxpayer financing as an inexperienced developer simply because it was provided to the most highly experienced entity in the field ([...]) is illogical.  [...] then opines that profits on the affordable housing project would come in two stages: (1) initially, profits of $3,643,285 consisting of a portion of the fees permitted for development overhead and construction management, along with a “developer’s fee of 15% of development costs; and (2) profits of $4,524,132 from the sale of the project at the end of the fifteen years of operation of the project, when initial tax credit “investors” seek to exit the project through a sale of the asset, thereby allowing the “development team” to achieve a gain on the sale of the project to a new investor.
[brief] The probate court’s August 31, 2022 order is entitled “Order. ”  It did not state that it was a final order.  The order’s language was: “1.  Plaintiff shall be entitled to reimbursement in the amount of $1,049,589.14; and 2.  Defendant’s motion to dismiss Plaintiff’s application for an award of legal fees is DENIED. ”  On September 13, 2022, just thirteen days after the entry of the August 31, 2022 Order, the Administrator, [...], Esq., contacted Defendant’s counsel, [...], Esq.  Mr. Reiser informed him that he would be filing a motion with the probate court to, among other things, be relieved of the responsibility for filing on behalf of the Estate a non-resident United States Tax Return; to have Defendant designated as the person responsible for the filing, if one was required; for an award of additional fees and disbursements; and to be discharged of any further duties as Administrator in the matter.
[brief] *N.J.S.A. 24:6I-36(d)(1)(c)(iv).*  [...] provided her thoughts that working with larger or international companies, such as [...], was not a concern of hers.  The Councilwoman also stated that she felt that the [...] location was a good location within the Highway Commercial District (just as the Council President did with respect to the [...] site), with easy access onto the Garden State Parkway or two local highways, along with ample parking space.  Thus, the Council members were presented with two paths to consider – to support [...], or, to support [...].  While the two Council members of the Subcommittee (Council President [...] and Councilwoman [...]) had no shared consensus on the selection of a cannabis retailer for the Borough’s Highway Commercial District, the Council, as a whole, was favorable to the application of [...].  Pa110; Pa65.  Following the adoption of the Support Resolution for [...], the Council also took the time to supplement the Borough record at the regular Council meeting of October 18, 2022, to elaborate further on the full Council’s selection of [...].  *See,* Pa233.  The supplementation walked through the Borough’s exhaustive application and review process as a means of explaining the considerations that went into the Borough Council’s ultimate decision.  *Id.*  [...] then filed its Complaint in Lieu of Prerogative Writs and an Order to Show Cause below on October 28, 2022, requesting emergent injunctive relief, specifically the granting of temporary and preliminary injunctive relief pending the entry of a final decision by the trial court in this matter.
[directive] Czy rozumie Pan(i), że w przypadku zmiany miejsca zamieszkania musi Pan(i)  1.  b)  (1)  [Tak/Yes]  [Nie/No] powiadomić o tym organy ścigania w miejscu dotychczasowej rejestracji i zarejestrować się ponownie u starszego funkcjonariusza organów ścigania w jednostce administracyjnej swego miejsca zamieszkania, albo u szefa policji stanowej, jeżeli dana jednostka administracyjna nie ma starszego funkcjonariusza organów ścigania, nie później niż na 10 dni przed planowaną datą zamieszkania pod nowym adresem?  Do you understand that if you change residence you must notify the law enforcement agency where you are registered, and must re-register with the chief law enforcement officer of the municipality in which you will reside, or the Superintendent of State Police if the municipality does not have a chief law enforcement officer, no less than 10 days before you intend to reside at the new address?
[brief] For the following reasons, we disagree.  We acknowledge the universally-recognized tenet of appellate practice that “issues must be raised in lower courts in order to be preserved as potential grounds of decision in higher courts.  But this principle does not demand the incantation of particular words; rather, it requires that the lower court be fairly put on notice as to the substance of the issue. ”  Nelson v. Adams USA, Inc., 529 U.S. 460, 469, 120 S.Ct. 1579, 1586, 146 L.Ed.2d 530 (2000).  Exceptions to this rule are made when questions raised on appeal relate to important questions of public policy.  Meeker v. Meeker, 52 N.J. 59, 65 (1968).  Courts will hear such questions where “it is manifest that justice requires consideration of an issue central to a correct resolution of the controversy and the lateness of the hour is not itself a source of countervailing prejudice[.]”  In re Appeal of Howard D. Johnson Co., 36 N.J. 443, 446 (1962)(quoted in Meeker, 52 N.J. at 65).
[brief] THE TRIAL COURT ERRED IN ITS APPLICATION OF THE STANDARD OF REVIEW FOR A MOTION TO DISMISS BROUGHT PURSUANT TO R. 4:6-2(e) (Pa54-Pa55; Pa62)**  Defendants do not and cannot dispute the long-standing decisional law in this State which requires a trial court to apply an extremely liberal standard of review in favor of the non-moving party when considering a motion to dismiss made pursuant R. 4:6-2(e).  See *Printing Mart-Morristown v. Sharp Electronics* Corp., 116 N.J. 739 (1993).  Rather, defendants insinuate that this standard is somehow modified when the matter involves a statute of limitations issue or a request for an enlargement of time under R. 4:69-6(c).  That is not the case.  Cf. Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman and Stahl, P.C., 237 N.J. 91, 120 (2019).  The trial court must continue to apply a “generous and hospitable approach. ”  Printing Mart, 116 N.J. at 746.  Unfortunately, the trial court failed to undertake such an analysis in this case, particularly with the facts demonstrating the public interest, the deficiencies of the Township’s notice and the various considerations otherwise warranting an enlargement of time.  (Pa56-Pa57; Pa60).  **CONCLUSION**
[brief] Those issues were limited to the trial court's denial of plaintiff's motion for relief in aid of litigant's rights under the JOD to compel defendant to contribute to the children's higher educational expenses and unreimbursed medical expenses; and pay increased child support based on any claimed cost of living increase under Rule 5:6B.  This Court specifically directed that “on remand the court shall reconsider, decide, and make findings in accordance with Rule 1:7-4 concerning those issues” and to “conduct such additional proceedings to address the issues as it deems appropriate. ”  This Court “offered no opinion on the merits, if any, of plaintiff's claims or defendant's opposition.
[brief] JUROR 12 SHOULD HAVE BEEN DISMISSED BECAUSE SHE AND HER HUSBAND KNEW THE VICTIM’S FAMILY, A STATE’S WITNESS, AND THE CHIEF OF POLICE OF THE TOMS RIVER POLICE DEPARTMENT, AND BECAUSE SHE RECEIVED INFORMATION ABOUT THE CASE FROM HER HUSBAND.  (Not Raised Below)  On the first day of trial, it became clear that [...] was so enmeshed in the State’s case that the risk of partiality had reached an unacceptable level, requiring her to be excused.  Over two occasions on that day, the Court first learned that [...] knew the victim’s family members because their churches fellowshipped together and later learned that [...] knew the State’s first witness, [...], who was crucial to the State’s theory of the time of the murder.  Furthermore, [...] had disclosed during voir dire that her husband was close friends with the Toms River Police Chief and she knew him as well.  She also revealed that her husband had received “all the information about the trial,” and the judge failed to definitively ascertain the precise scope of the information [...]’s husband in turn relayed to her.  Because the court’s failure to adequately question and excuse [...] ran afoul of the court’s independent obligation to ensure a fair and impartial jury, this Court should reverse Defendant’s convictions and remand for a new trial.
[brief] Aside from that, the trial court failed to provide any discussion as to why it did not invoke its inherent power to sanction based on the following facts confirming Defense Counsel’s wrongful litigation conduct.  The trial court did not consider that [...]’s attorneys failed to absolve the deficiencies of the Fee Letter (Pa49, Pl.’s Trial Ex. P-25), their investigation and [...]’s lies and contradictions detailed below.  First, [...]’s August 14, 2017 Fee Agreement (Pa49) stated the firm would perform a reasonable investigation before commencing litigation to set aside the divorce and that the matter would need to be approved by the firm’s “management committee” and then a subsequent retainer would be provided.
[brief] B.  The Complaint  Plaintiff alleges three causes of action against [...] arising from the parties’ Agreement:  (i)  Plaintiff alleges [...] “breached the agreement between Defendant and Plaintiff by failing to provide the bargained-for services and expertise and failing to commence, continue, or complete the project in a timely fashion,” (Pa33, Compl. ¶¶22–26, Count One); (ii)  Plaintiff alleges [...] committed an unconscionable business practice under the CFA because, among other things, [...] delayed starting the project and did not “send out a new, more experienced excavator” to work on the pool at a time convenient for Plaintiff, (Pa34–35, Compl. ¶¶27–34, Count Two); and (iii) Plaintiff seeks declaratory relief that the alternative dispute resolution in the Agreement is “void as unconscionable and/or void under the public policy and law of the State of New Jersey.
[brief] Pursuant to N.J.S.A. 2A:14-1, “a legal malpractice action must commence within six years from the accrual of the cause of action. ”  Vastano v. Algeier, 178 N.J. 230, 236 (2003); citing Grunwald v. Bronkesh, 131 N.J. 483, 499 (1993); McGrogan v. Till, 167 N.J. 414, 419, 424–26 (2001); Olds v. Donnelly, 150 N.J. 424, 440 (1997).
[brief] This appeal concerns a mortgage lender’s (Appellant’s) right to reject an insufficient payoff payment from a third-party, non-borrower and proceed with foreclosure after borrowers defaulted on the subject loan.  [...] (“[...]”) (Respondent’s predecessor) sent the prior servicer of the subject loan ([...]  (“[...]”)) the short payoff funds on behalf of third-parties [...] (“[...]”) and [...] who were deeded the property by Appellant’s borrowers.  As noted, those funds were insufficient to fully pay off the debt owed.  As a result, [...] returned the funds directly to Respondent’s agent, [...] (“[...]”), which was serving as the escrow company on behalf of the settlement/title agent [...] (“[...]”).  It was Respondent’s position that the funds, nevertheless, should have been applied to the loan and not returned to Respondent’s escrow agent, who then misappropriated the funds.  Here, the trial court erroneously deemed the payment – not from Appellant’s borrowers, but from another lender for third parties to whom the borrowers transferred title – as a short sale with the deficiency waived.  In doing so, the trial court was heavily persuaded by an unpublished decision of this Court, *Mortgage Electronic Registration Systems, Inc. v. Omar*, No. A-5187-06T3, 2008 WL 2050834 (N.J. Super.  Ct. App. Div. May 15, 2008), that arose in a starkly different factual scenario.  The transaction at issue here was never intended to be a short sale, nor was there any contractual obligation on the part of Appellant to accept an insufficient payment.
[directive] The training program shall include a component on techniques to de-escalate a confrontation with a person from a different culture or background.  The training program also shall include a component on how to interact with an emotionally disturbed person, how to recognize mental illness, and 3 techniques to de-escalate a psychiatric crisis to prevent injury and death.  2.  A person participating in a training course approved by the [...] shall during such training be exempt from criminal liability under N.J.S.A.  2C:39-3(h) for knowing possession of a stun gun.  3.  All law enforcement officers authorized to carry and use a conducted energy device pursuant to this supplemental policy shall qualify, and thereafter re-qualify annually, in a training course and qualification procedure approved by the [...].4
[brief] Both [...] and [...] argued to the Probate Court that their interpretation of the Settlement Agreement was the correct one.  However, only [...] had the burden of proof.  To satisfy that burden, [...] either had to show that his interpretation of the Settlement Agreement was the only reasonable interpretation, or he had to produce extrinsic evidence that proved his interpretation was correct.  [...] did neither.  Yet the Probate Court ruled, erroneously, in [...]’s favor.  The Probate Court’s alternative justification for that decision – that [...] was in all events not entitled to [...]’s interest in the Palm Beach Property – is simply puzzling.  For starters, [...] admits that [...]’s interest in the Palm Beach Property is disposed of through the Residuary Clause of her trust.  Further, the Residuary Clause’s plain language gives that property to [...].  [...]’s interpretation necessarily adds language to the trust instrument.  Once again, [...] did not carry his burden of producing evidence to justify that result.  [...] is right that the proceedings below are different from a summary judgment proceeding.
[brief] As more fully described in the accompanying testimony of [...] (Exhibit P-1), the operational need for the Regulator Station arises from [...]’s 2012 upgrade of its transmission line in [...].  Specifically, in 2012, as part of its efforts to continually upgrade and modernize its system, [...] replaced the existing transmission line located in [...] due to its age and to comply with federal pipeline integrity requirements.  The upgraded transmission line has a maximum allowable operating pressure ("MAOP") of 722 psig.  12.  The newly upgraded transmission system provides natural gas to [...]’s local distribution system, which operates at approximately 100 psig.  The Regulator Station is needed to adequately, safely and reliably accomplish the more than 600 psig reduction in gas pressure between the transmission system and the distribution system, so that pressure is reduced for the safe and efficient delivery of gas to [...]’s local customers.
[brief] ”  *Ibid.*  Furthermore, when identification is a “key issue,” the trial court must instruct the jury on identification, even if a defendant does not make that request.  *State v. Green*, 86 N.J. 281, 291 (1981); *State v. Davis*, 363 N.J. Super. 556, 561 (App. Div. 2003) (instructions are necessary when they relate to “essential and fundamental issues and those dealing with substantially material points”).  Failure to issue an identification instruction may constitute plain error, the determination of which “depends on the strength and quality of the State’s corroborative evidence rather than on whether defendant's misidentification argument is convincing. ”
[brief] On September 22, 1992, more than four years after [...]’s last contribution, the Division of Pensions sent him a letter stating that he had to return to work by November 22, 1992, or his pension account would expire.  [...] never received the letter.  [...] was involved in protracted litigation against his employer to request accommodations for a disability, which he claimed he could still work as a police officer.  Upon being denied his LAD claim, [...] applied for ordinary disability benefits.  The Board denied [...]’s application for an ordinary disability retirement on the grounds it was untimely.  Under the applicable PFRS statutes, membership ceases after 2 years from the date of the member's last pension contribution.  The Board determined [...] ineligible because more than 2 years had elapsed since his last contribution and because he was not a member in service at the time of the application.
[directive] If the victim does not have a copy of the court order, the officer may verify the existence of an order with the appropriate law enforcement agency.  C.  A warrant is in effect.  D.  There is probable cause to believe that a weapon as defined in N.J.S.A. 2C:39-1r has been involved in the commission of an act of domestic violence.  III.  Discretionary Arrest.  A police officer may arrest a person or may sign a criminal complaint against that person, or may do both, where there is probable cause to believe that an act of domestic violence has been committed but none of the conditions in Section II. above applies.
[brief] While the Appellate Division acknowledged that “historically courts allowed attorneys to be awarded fees when appearing pro se” it countered that “our courts long ago recognized that ‘there is a conflict of authority as to whether an attorney conducting a case in his own behalf is entitled to taxed fees therefor as costs. ”  Segal v. Lynch, 211 N.J. 260, citing to Henn v. Heath, 101 N.J.Eq. 347, 349 (Ch.Ct. 1927).  The Appellate Division in Segal v. Lynch further recognized that “Courts concluding that fees may not be awarded to an attorney acting pro se have identified the policy rationales that support their conclusion.
[brief] (Pa4-27; 6T 4-76)  On November 19, 2018, the [...] passed the Resolution and determined the Congregation’s use of the Sixth Street Lot is an “invalid utilization. ”  Defendant sought to have the Resolution, transcript of the hearing and minutes of the hearing (“[...] Record”) entered into evidence.  This Resolution was subsequently adjudged to be null and void on Plaintiff’s Prerogative Writ application.  Regardless, the [...] Record is irrelevant to a determination of what property right was conferred to Plaintiff in 1963 and whether that right was abandoned or terminated by Plaintiff.  Thus, the Trial Court’s exclusion of the [...] Record was proper.  A.
[brief] It further attempts to make this argument claiming that the Trial Court did not analyze or even consider this argument based on paragraph 3 of the “Important Notice and Disclosure” section of the title commitment, which was improper.  However, this argument is easily rejected because Plaintiff plainly never raised this argument in any of its numerous briefs to the Trial Court below.  Rather, in a last-ditch attempt, Plaintiff attempts to throw “spaghetti at the wall” to see if it will stick, and now makes this erroneous argument on appeal for the first time.  [...] respectfully requests that the court not consider Plaintiff’s new argument.