ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] SUPERIOR COURT OF NEW JERSEY  APPELLATE DIVISION  Appellate Docket No. [...]  Submission Date: March 28, 2024  CIVIL ACTION  On Appeal from Superior Court Law Division, Civil Part, Passaic County Final Orders  Dated August 8, 2023, and December 19, 2023  Sat Below: Hon. [...], P.J.S.C., Retired & Hon. [...], P.J.S.C.  Trial Court Docket No. [...]
[brief] That decision provides a concise explanation of why the instant transaction is a loan.  The [...] court was required to define a loan to decide if funds received in a particular transaction are "income" subject to tax.  The pertinent facts were that one chain of supermarkets, [...], sought funds from another, [...], in order to build capital improvements.  [...] provided [...] with $1.5 million on condition that [...] purchase $16 million of [...] products a year for the next several years.  Each year [...] did so, [...] was relieved of the obligation to pay [...] $250,000 of the $1.5 million.  The [...] court stated “This agreement has all the indicia of an agreement to rebate $250,000 a year in advance. ”  [...] at 409.  The court explained:  “[I]f the taxpayer has some guarantee that it will be allowed to retain the funds, then it has complete dominion over the money.  Such is the case here.  [...], and [...] alone, was at all times in control of whether it would meet the Supply Agreement. ”  [...] at 410, citing Comm’r v. Indianapolis Power & Light Co., 493 U.S. 203, 210 (1990).  The [...] court decided because [...] retained the ability to decide if it would perform under the supply agreement, the “loan” provided to [...] was in fact an “advance” rebate for products to be supplied, and taxable income.
[brief] The Legislature is well aware of how to create specific notice requirements and has done so with other statutes.  See N.J.S.A. 43:15A-50(a) (“Notification shall be by certified mail to the spouse’s address as provided on the form by the member. ”); e.g., Hammond v. City of Paterson, 145 N.J. Super. 452, 456 (App. Div. 1976) (holding that the Legislature, in requiring “actual receipt” of notice in the Tort Claims Act when certified mail is not used, “clearly did not mean to leave proof of actual receipt to a presumption. ”).  When “the Legislature has carefully employed a term in one place and excluded it in another, it should not be implied where excluded. ”  GE Solid State, Inc. v. Director, Div. of Taxation, 132 N.J. 298, 307-08 (1993); see also State v. Hoffman, 149 N.J. 564, 579 (1997).  Nowhere in the Ricci Act is there a requirement that the Board send notice, through a postcard, by certified mail or other means, or otherwise require actual receipt of notice.  Thus, in accord with the statutory canon of *expressio unius est exclusio alterius*, the expression of one thing suggests the exclusion of another left unmentioned, this court should reject [...]’s request to create a requirement where the Legislature has chosen not to.
[brief] *U.S. Const.* amends.  V, VI, XIV; *N.J. Const.* art. I, ¶¶ 1, 9, 10; *R.* 2:10–2.  Rule 404(b) sharply limits the admission of evidence of other crimes or wrongs.  Under this Rule, “evidence of other crimes, wrongs, or acts is not admissible to prove a person’s disposition in order to show that on a particular occasion the person acted in conformity with such disposition,” but such evidence “may be admitted for other purposes,” if “such matters are relevant to a material issue in dispute. ”  *N.J.R.E.* 404(b).  This limiting principle recognizes that prior-conduct evidence “has the effect of suggesting to a jury that a defendant has a propensity to commit crimes, and, therefore, that it is more probable that he committed the crime for which he is on trial.
[brief] Rigatti v. Reddy, 318 N.J. Super. 537, 541 (App. Div. 1999) (quoting Kane v. Hartz Mountain Indus., Inc., 278 N.J. Super. 129, 140 (App. Div. 1994)).  During discovery in this matter, Defendants’ positions as who was responsible for what when it came to [...], as well as the quality of work, were in conflict.  The contents of the contracts were clear and unambiguous and detailed Defendants’ knowledge and notice of specific requirements and expectations, for snow and ice removal services at [...].  [...] blamed the contract for the conditions appearing as they did on March 8, 2028.  (Pa5-9)  [...] testified that the contract constrained its ability to keep [...] safe, because he said he had contract to follow.  (Pa5-9)  Yet while defendant [...] did not even know that [...] was doing the work.  (4T28:16-20; 29:14-21).  As a result, due to the conflicting testimony of defendants, each blaming the other, Defendants made the entirety of both contracts relevant.
[brief] **Use of the Date of the Liability Trial Decision as the End Date of the Allocation Period is Contrary to the Expressed Objectives of the Time on the Risk Method**  In *Boston Gas*, the court explained that the benefit of the time on the risk allocation method is that “its inherent simplicity promotes predictability, reduces incentives to litigate, and ultimately reduces premium rates. ”  Bos. Gas Co., 910 N.E.2d at 314.  See also Arco Indus. Corp. v. Am. Motorists Ins. Co., 594 N.W.2d 61, 70 (Mich. Ct. App. 1998); United States Fid. & Guar. Co. v. Treadwell Corp., 58 F. Supp. 2d 77, 105 (S.D.N.Y. 1999) (adopting the time-on-the-risk allocation method because it is “predictable, administrable, fundamentally fair, and provides potential insureds with incentives to purchase insurance or rationally self-insure”).
[brief] (29T163-22 to 165-7; Da82-93)  In that case, he had originally been charged with first degree operating a CDS production manufacturing facility, among other charges, and could have received up to forty years in prison.  (32T33-15 to 35-22)  He ended up with the greatly reduced sentence of three and a half years because he cooperated with the State—specifically with [...], the Detective that repeatedly interviewed him in this case.
[brief] \(^7\)  It is also noteworthy that the trial court rejected [...]’s incredible trial testimony that he was not in New Jersey on the date of the Closing, that one of his attorneys attended the Closing on [...]’s behalf and, therefore, that [...] could not have entered into the Third Loan.  Da22, n.11.  Defendants offered no corroborating proof at trial.  The trial court properly invoked the adverse inference rule on the basis of Defendants’ conspicuous failure to call their attorney to testify at trial.  Id.  \(^8\)  The trial court found that [...]’s deposition testimony, i.e., that he still owed [...] $50,000 pursuant to the Second Loan made in 2008, was “pay when able,” [...]’ team did not need to track monthly payments because none were due -- the loan was to be paid as soon as defendant was able to do so. \(^9\)  5T54-9 to 21.  **E. [...]’s Confirmation Of The Third Loan.
[brief] THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DIANA’S MOTION BECAUSE [...] VIOLATED A REMEDIAL CONSUMER PROTECTION STATUTE TO OBTAIN THE DEFAULT JUDGMENT (RAISED BELOW: T1; T2)  As stated by [...] (and corroborated by the license verification at Da40), [...] lacked the licensure required to acquire and enforce the debt at all times relevant to this action.  Notably, [...] has never asserted that it was licensed under the NJCFLA—[...]’s lack of licensure is a matter of public record maintained by the New Jersey Division of Banking and Insurance Licensing Services Bureau.  However, in adjudicating [...]’s Motion to Vacate Default Judgment, the trial court reasoned that because there had been no finding by the Commissioner of Banking and Insurance that [...] had committed a fourth-degree crime by engaging in the consumer loan business without a license under the NJCFLA, the provisions of N.J.S.A. 17:11C-33(b) did not apply, i.e., the contract governing [...]’s alleged debt was not void.  (T2 18:14-23).  The trial court’s decision came after it reasoned during the Motion hearing that the issue of voidness under the NJCFLA was likely dependent on “whether [the court] find[s] there is a good faith error [by [...]]”—which the trial court found there was not—and that the “contract, the credit card debt, the purchases, the right to collect, etcetera which was not invalid for any other reason.  But violates Section 3, because [[...]] did not first obtain the license shall be void. ” (T1 43:5-9; 57:18-20).  Thus, during the motion hearing, the trial court determined that the debt was void based on [...]’s violations of the NJCFLA, subject to a good-faith error defense proven at the subsequent plenary hearing.  However, the trial court then determined at the plenary hearing that the debt was not void (despite the finding that [...] was unlicensed and had not acted in good faith) because there had been no finding that [...] committed a fourth-degree crime.  But the trial court’s analysis failed to give proper deference to the plain language of the NJCFLA.
[brief] Appellant’s Point III does not actually contain an argument, but instead directs the Court to look at a brief that he included in his Appendix contrary to the Court Rules.  Rule 2:6-1(a)(2) lists “prohibited contents” that an Appellant cannot include in their appendix.  This explicitly includes “briefs submitted to the trial court shall not be included in the appendix. ”  There is a limited narrow exception not applicable here, where the “question of whether an issue was raised in the trial court is germane to the appeal, in which event only the material pertinent to that issue shall be included.  R. 2:6-1(a)(2).  Because the issue of whether he raised an issue previously is not part of this appeal, Point III should be rejected as not raised in Appellant’s brief.  POINT VII: THE COURT PROPERLY ENTERED A STIPULATION OF DISMISSAL AS TO [...].
[brief] “Rule 4:6-2(e) motions to dismiss for failure to state a claim upon which relief can be granted are reviewed de novo. ”  *Baskin v. P.C. Richard & Son, LLC*, 246 N.J.  157, 171 (2021).  “A reviewing court must examine ‘the legal sufficiency of the facts alleged on the face of the complaint,’ giving the plaintiff the benefit of ‘every reasonable inference of fact. ’”  *Id.* (quoting *Dimitrakopoulos v. Borrus, Foley, Vignuolo, Hyman & Stahl, P.C.*, 237 N.J. 91, 108 (2019).  However, “if the complaint states no claim that supports relief . . . the action should be dismissed,” *Dimitrakopoulos*, 237 N.J. at 107, even for constitutional challenges.
[brief] "... because municipal court proceedings to prosecute violations of ordinances are essentially criminal in nature, penal ordinances must be strictly construed.  *State, Tp. of Pennsauken v. Schad*, 160 N.J. 156, 171, Maplewood v.Tannenhaus, 64 N.J.Super. 80, 89, 165 A.2d 300 (App.Div.1960), certif denied, 34 N.J. 325, 168 A.2d 691 (1961)  In interpreting a penal ordinance, a court must be guided by the rule of lenity, resolving any ambiguities in the ordinance in favor of a defendant charged with a violation.  State, Tp. of Pennsauken v. Schad, supra, 160 N.J. at 171, 733 A.2d 1159; Maplewood v. Tannenhaus, supra, 64 N.J.Super. at 89, 165 A.2d 300.
[brief] *(Pa31; Da32 to Da33).*  The test for adequacy of a notice is whether it “inform[s] the public of the nature of the application in a commonsense manner such that the ordinary lay person could intelligently determine whether to object or to seek further information. ”  Cox & Koenig, *New Jersey Zoning and Land Use Administration* (Gann), §18-1.2 (citing *Perlmart v. Lacey Township Planning Board*, 295 N.J. Super. 234 (App. Div. 1996)(emphasis added)).
[brief] However, the Project’s freshwater wetland components required a lengthy State Historic Preservation Office archeological review, which meant those components could not be completed within the ninety-day flood hazard deadline, and which is still ongoing.  (Aa28).  DEP suggested that [...] either withdraw its flood hazard application or bifurcate the flood hazard application from the freshwater wetlands application.  (Ra13-14).  [...] chose to bifurcate and move forward with the flood hazard application.  (Aa94).  The ninety-day flood hazard permitting deadline was later extended thirty days, N.J.A.C. 7:13-21.3(b), to December 1, 2022, (Ra15).
[directive] Step 11:  − Prohibited weapons and devices – destructive devices (N.J.S.A. 2C:39-3(a)) (non- Graves Act)  − Prohibited weapons and devices – defaced firearms (N.J.S.A. 2C:39- 3(d)) − Possession of firearm while committing CDS/bias crime (N.J.S.A. 2C:39-4.1(a)) − Poss. of weapon for unlawful purpose (N.J.S.A. 2C:39-4(a)(1) or (2))  −  Unlawful possession of a weapon (N.J.S.A. 2C: 39-5(b)(1), 2C:39-5(c)(1) or (2))    If yes, the preliminary recommendation from Step 9 or the revised preliminary recommendation from Step 10 is increased to the final recommendation as follows:    Release  ROR = Release with PML 1    Release with PML 1 = Release with PML 2    Release with PML 2 = Release with PML 3    Release with PML 3 = Release with PML 3 + EM/HD   Release with PML 3 + EM/ HD = No Release Recommended    If no, proceed to 12.  Step 3  Pretrial Release Recommendation  Decision Making Framework (DMF)  [November 2024]  Determine if the highest current charge is an indictable offense or a disorderly Step 12: persons offense that is domestic violence related and is therefore eligible for pretrial detention.
[brief] (Id.).  Specifically, [...] directed Plaintiff to serve upon Defendant [...] no more than 10 interrogatory questions to be provided by Defendant to current employees who had been employed during Plaintiff’s tenure, that is, [...] employees who worked during the months of September 2014—February 2015.  (Id.).  Then, based on the responses to Plaintiff’s interrogatories, Plaintiff was afforded an opportunity to proffer an argument as to the relevance of deposing specific employees—current or former.  (Id.).  Moreover, the court further provided Plaintiff an opportunity to renew his request for depositions, after Plaintiff receives responses to the interrogatories, by providing Defendant [...] with an explanation of relevant information the employee has and why a deposition is warranted.
[directive] B.  Severability.  The provisions of this Directive and the BWC Policy shall be severable.  If any phrase, clause, sentence or provision of this Directive or the BWC Policy is declared by a court of competent jurisdiction to be invalid, the validity of the remainder of either document shall not be affected.  C.  Questions.  Any questions concerning the interpretation or implementation of this Directive and the BWC Policy shall be addressed to the Executive Director of the [...], or their designee.  D. date.  This Directive shall take effect immediately.
[brief] On December 17, 2021, the GPS tracker allowed the detectives to see defendant do that which the CI had reported.  The detectives observed the defendant enter the Audi at “A Taste of the Islands” and then were able to track it as it travelled “in a direct route” to New York.  Within “a quick turnaround,” i.e., “[t]wo-and-a-half hours,” defendant left Brick Township, New Jersey, travelled to the Bronx, New York, and was “coming back into New Jersey.
[brief] Defendants  On appeal from:  SUPERIOR COURT OF NEW JERSEY LAW  DIVISION PASSAIC COUNTY  Docket No. [...]  Sat Below: Hon. [...], J.S.C.  Hon. [...], J.S.C.  REPLY  BRIEF OF RESPONDENT/CROSS-APPELLANT  [...] [...]  D/B/A [...] (IMPROPERLY PLED AS NIROAL, LLC)
[brief] (Aa2553-Aa2575).  Given the actual observations submitted by members of the public and the report issued by [...], the [...] should have required a formal bird survey to include one full year of wintering, migration, and breeding bird occupancy prior to making any decisions, as required by N.J.A.C. 7:13-11.6(e) and N.J.A.C. 7:13-18.8(b).  The actual observation of threatened and endangered species on the property, significantly questions the analysis completed by the [...] that the site does not contain suitable habitat.  For these reasons, the [...]’s issuance of the FHA Permit is arbitrary, capricious, and unreasonable, and must be vacated and reversed.
[brief] Order denying Defendants’ motions for judgment notwithstanding the verdict, new trial, and remittitur, dated November 3, 2023 ........................................Da187 Consent Order approving amount and form of Supercedeas Bond and staying judgment against Defendants, dated December 14, 2023 ..............................Da210 Notice of Appearance of [...], Esq. as co-counsel for Defendants, [...], [...], and [...], dated December 4, 2023 ........................................Da212 Defendants, [...]’s, [...]’s, and [...]’s, Notice of Appeal, dated December 5, 2023 ...................... Da213 Defendants, [...]’s and [...]’s, Notice of Appeal, dated December 5, 2023 .................................................................Da265
[brief] City of Paterson, 145 N.J. Super. 452, 456 (App. Div. 1976) (holding that the Legislature, in requiring “actual receipt” of notice in the Tort Claims Act when certified mail is not used, “clearly did not mean to leave proof of actual receipt to a presumption. ”).  When “the Legislature has carefully employed a term in one place and excluded it in another, it should not be implied where excluded. ”  GE Solid State, Inc. v. Director, Div. of Taxation, 132 N.J. 298, 307-08 (1993); see also State v. Hoffman, 149 N.J. 564, 579 (1997).  Nowhere in the Ricci Act is there a requirement that the Board send notice, through a postcard, by certified mail or other means, or otherwise require actual receipt of notice.
[directive] New Statewide Guidance Regarding Section 12 Waivers  The State possesses a significant tool for correcting injustices in the use of mandatory minimum drug sentences: the ability to seek waivers of mandatory periods of parole ineligibility pursuant to Section 12, provided such waivers are sought in a consistent manner under the and decisions.  In addition, pursuant to Court Rule 3:21-10(b)(3), the State, [...] jointly with an incarcerated defendant, may at any time file an application seeking to change a sentence for good cause, including a request to rescind a mandatory term of parole ineligibility pursuant to Section 12.  This Directive therefore establishes statewide rules that require prosecutors to seek the waiver of mandatory parole disqualifiers for non-violent drug crimes during plea negotiations, following a probation violation, and after conviction at trial.  Where the defendant makes a request, prosecutors will also be required to file a joint application to modify the sentences of inmates currently incarcerated.  Taken together, these rules essentially take the imposition of mandatory parole disqualifiers “off the table” for all current and future non-violent drug defendants, and allow those currently incarcerated pursuant to such terms an opportunity for early release from custody.  These mechanisms achieve—to the greatest extent possible under current law—the Commission’s recommendation to eliminate the use of mandatory minimum sentences for non-violent drug crimes.
[brief] THE LAW DIVISION’S DECISION IS ERRONEOUS BECAUSE IT DISREGARDED 30 YEARS OF STATE COURT LAW DEMONSTRATING THAT THE SUPERIOR COURT IS THE PROPER JURISDICTION FOR CLAIMS BROUGHT PURSUANT TO THE IFPA, N.J.S.A. 17:33A-1, et. seq.  There is no question that the IFPA “interdicts” a broad range of fraudulent conduct.  Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 172 (2006).  There is also no question that as a matter of policy the statutory sanctions are remedial in nature, intended to compensate insurance companies when they pursue IFPA violators for costs incurred as a result of investigation and prosecution.  Id. at 172-73.  Since 1994, the Supreme Court of New Jersey, the Appellate Division, and the Law Division have consistently permitted insurer’s IFPA cases concerning fraudulent conduct resulting in an insurer’s payment of personal injury protection benefits to be adjudicated in the Superior Court.  Lajara, 222 N.J. at 153.  Not once, until the Law Division’s decision on October 27, 2023, did any State Court rule that PIP dispute resolution is the appropriate forum for an IFPA case.  Not only have the State Courts heard IFPA cases since 1994, but they have uniformly held that the Superior Court is the proper jurisdiction to litigate IFPA claims.
[brief] The *Moore* Court found that the police had probable cause to arrest and search the defendant where, using binoculars, they saw him walk away from a group of people to the back of a vacant lot with a companion, and saw both the defendant and his companion hand a third man currency in exchange for small unknown objects believed to be drugs, which they both immediately pocketed before returning to the group.  *Id.* at 43.  Here, similar to *Pineiro* and unlike in *Moore*, the affiant did not see any currency exchanged.  See *Pineiro*, 181 N.J. at 28 (noting that unlike in *Moore*, the police did not observe any currency being exchanged, but only saw the transfer of a cigarette pack under circumstances that had “both innocent and suspected criminal connotations”).  The affiant did not state that he believed that any of the unknown objects he saw were drugs and gave no description of the unknown objects, beyond characterizing one of them as “small. ” (1T:17-16 to 18-12); (Pca 10)  Thus, the officer’s conclusory statement that his observations of [...] were consistent with drug distribution were inadequate to support probable cause without more.  As recognized by the Pineiro Court and the trial court in the instant case, the act of exchanging an unknown object for another unknown object and the act of giving someone an unknown object can have both innocent and criminal connotations.  (1T:17-24 to 18-4); See Pineiro, 181 N.J. at 28.  While the affiant stated that his observations “were consistent with the efforts of a drug dealer to hide CDS in various locations on his property,” he gave no explanation for how he reached this conclusion.
[brief] Barber v. ShopRite of Englewood & Associates, Inc., 406 N.J. Super. 32, (App. Div. 2009)  ................................................................. 24, 26 Besler v. Bd. of Educ. of W. Windsor-Plainsboro Reg’l Sch. Dist., 201 N.J. 544, (2010)  ...........................................................................  23, 24, 25 Caldwell v. Haynes, 136 N.J. 422, 432 (1994)  ..................................................  26 Carrino v. Novotny, 78 N.J. 355 (1979) ..............................................................  26 Crego v. Carp, 295 N.J. Super. 565 (App. Div. 1996), cert. denied, 149 N.J. 34 (1997) .............................................................................  26  Doe v. Arts, 360 N.J. Super. 492 (App. Div. 2003) ............................................ 26 Dolson v. Anastasia, 55 N.J. 2, 5 (1969) .......................................................... 22, 26, 27 Feliciano v. Faldetta, 434 N.J. Super. 543, 85 A.3d 1006 (App. Div. 2014) ......................................................................................... 45 Finnegan v. Haver Mfg. Corp., 60 N.J. 413 (1972) ........................................... 24 Furst v. Einstein Moonjy, Inc., 182 N.J. 1, 860 A.2d 435 (2004) ....................... 44 Goss v. Am. Cyanamid Co., 278 N.J. Super. 227, (App. Div. 1994) .................... 26 Kozma v. Starbucks Coffee Co., 412 N.J. Super. 319 (App. Div. 2010) .............. 26 Lamendola v. Mizell, 115 N.J. Super. 514 (Law Div. 1971) ................................ 24 Lewis v. Am. Cyanamid Co., 155 N.J. 544, 715 A.2d 967 (1998) ....................... 25 Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J. 372, 982 A.2d 420 (2009) .. 41, 42 North Bergen Rex Transp., Inc. v. Trailer Leasing Co., 158 N.J. 561, 730 A.2d 843 (1999)