ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] DIVISION: MERCER COUNTY DOCKET NO.: [...]  Sat Below: Hon. [...], J.S.C. BRIEF AND APPENDIX ON BEHALF OF DEFENDANTS/APPELLANTS  [...], individually, and THE LAW OFFICES OF [...], LLC.  [...] [...] [...]  Attorneys for Defendants Of Counsel and on the Brief: [...], Esquire  [...] #025951990  Dated: April 29, 2024  TABLE OF CONTENTS
[brief] As owner of the Parkway, the [...] had a non-delegable duty for the maintenance and protection of traffic on the roadway.  N.J.S.A. 27:23-3(A).  At all relevant times, [...] was under contract with [...] in order to expand and widen the area of the Parkway where the settlement condition existed.  (Pa1202).  According to that contract, [...] agreed to be responsible for the maintenance and protection of traffic on the Parkway in the area that work was being performed.  (Pa1379);(Pa1381).  That responsibility included providing temporary repair solutions for traffic protection and/or installing warning signs when necessary.  (Pa1214);(Pa1225); (Pa0689 at 63:18-64:1-7).  The [...] also entered into contract with [...] for construction supervision and inspection services.  (Pa1296).  [...] in turn entered into a subcontract with [...].  (Pa1265).  Based on those contracts, both [...] and [...] were required to ensure that [...] complied with its’ contractual responsibilities.  (Pa2202); (Pa1271);(Pa1272).  In furtherance of that duty, [...] and [...] had a responsibility to inspect for and identify roadway hazards such as the one that caused Plaintiff’s accident.  (Pa0656 at 20:16-Pa0657 at 1-18); (Pa0678 at 20:25-Pa0679 at 21:1-7).  In the event that settlement was identified, [...] and [...] were responsible to ensure temporary measures were implemented to protect the traveling public.  Those temporary measures include paving and/or using warning signs.  (Pa0599); (Pa0689 at 63:18-64:1-7); (Pa1337).  Defendants knew or should have known of the settlement that caused Plaintiff’s accident.
[brief] *Liebling v. Garden State Indem.*, 337 N.J. Super. 447, 465 (App. Div. 2001) (an argument that one party failed to prove an element of a cause of action cannot be raised for the first time on appeal).  The appellants have not identified any part of any transcript where the specific issue of a demand for return of the converted property was actually raised before, during, or after the trial, and the segments identified in their point heading make no reference to the issue of a demand whatsoever.  Appellants therefore waived this argument.
[brief] The agreement provides that disputes “shall be resolved by binding individual (and not joint) arbitration by ... the [...]. ”  [...]  Further, the agreement makes no provision for the appointment of a substitute arbitrator should [...] become unavailable.  In view of this mandatory language, the pervasive references to [...] in the agreement, and the absence of any indication that the parties would assent to arbitration before a substitute forum if [...] became unavailable, we conclude that, as in *Salomon*, the parties agreed to arbitrate only before [...].  835 F.3d at 264–65 (emphasis original, citations to internal appendix omitted)  Similiary, in *A-1 Premium Acceptance, Inc. v. Hunter*, 557 S.W.3d 923 (Mo. 2018), the Supreme Court of Missouri applied to FAA to determine that in “agreements in which the parties agree to arbitrate before – but only before – a specified arbitrator … nothing in the FAA authorizes (let alone requires) a court to compel a party to arbitrate beyond the limits of the agreement it made” and a court cannot appoint a substitute arbitrator.
[brief] Cases  A.D. v. Morris Cty. Bd. of Soc. Servs., 353 N.J. Super. 26, 30 (App. Div. 2002) .................................................................  21  Aiello v. Myzie, 88 N.J. Super. 187, 194 (App. Div. 1965) ..................................................  30  Baker v. Nat'l State Bank, 353 N.J. Super. 145, 153-54 (App. Div. 2002) .................................................................  41  Baxter v. Fairmont Food Co., 74 N.J. 588 (1977) ................................................................. 30 Bell Atl. Network Servs., Inc. v. P.M. Video Corp., 322 N.J. Super. 74, 97 (App. Div. 1999) ........................................... 23, 24 Bender v. Adelson, 187 N.J. 411, 431 (2006) ................................................................. 22 BIS LP, Inc. v. Dir., Div. of Taxation, 26 N.J. Tax 489, 581 (App. Div. 2011) ................................................................. 20 Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005) ................................................................. 30, 31 Cabakov v. Thatcher, 37 N.J. Super. 249, 258 (App. Div. 1955) .................................................. 39 Carlucci v. Stichman, 50 N.J. Super. 96, 98 (App. Div. 1958) .................................................. 39 Carrino v. Novotny, 78 N.J. 355, 360 (1979) ................................................................. 30 Cavuoti v. N.J. Transit Corp., 161 N.J. 107, 123 (1999) .................................................................
[brief] Pa86.  Thereafter, [...] brought an action to vacate the arbitration award, resulting in multiple trial court and three Appellate Division decisions.  Pa84-128.  Twice the Appellate Division reversed and remanded trial court decisions refusing to vacate the arbitration award and instead ordered further proceedings.  Pa84-107.  Ultimately, while the Appellate Division found that [...]’s conduct was “wholly inappropriate” and “unsuitable behavior that calls into question the very quality and professionalism of [the arbitration] proceedings,” it also found [...] did not prove that conduct caused the award to be procured by undue means or that the arbitrator had evident partiality, thus the arbitration award was not vacated.  Pa112-113.  The Facts Giving Rise to this Case
[brief] ” (Pb13).  But this is a misinterpretation that contradicts the Legislature’s actual intent, as explicitly stated in the statute it enacted.  “The Court’s obligation when interpreting a law is to determine and carry out the Legislature’s intent. ”  Sussex Commons Assocs., LLC v. Rutgers, 210 N.J. 531, 540-41 (2012) (citing Allen v. V & A Bros., Inc., 208 N.J. 114, 127 (2011)).  “[T]he best indicator of that intent is the statutory language[.]”
[directive] CONCLUSION  As is true of all areas of law enforcement, no two sudden and unexpected death situations are exactly alike.  There is no perfect way to notify surviving family members of the death of a loved one.  There is no clearly identified procedure for determining what information can or cannot be provided to the victim's next of kin in every case.  The types of assistance required by survivors will differ.  Therefore, the recommendations provided herein are in the nature of guidelines.  They are designed to ensure that survivors of sudden and unexpected death are afforded the same treatment provided to every other crime victim.  The revised guidelines will be widely disseminated to law enforcement agencies, health care facilities and funeral homes and hopefully will continue to be utilized in the day to day activities of such agencies.
[brief] Therefore, even though it is doubtful the AFIS report would be considered “testimonial” evidence subject to exclusion under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L. Ed.2d 177 (2004) even if it had been offered into evidence and defendant had properly objected, see State v. Chun, 194 N.J. 54, 146–47, 943 A.2d 114, cert. denied, —— U.S. 158, 129 S.Ct. 158, 172 L. Ed.2d 41 (2008), there is no need to decide that issue.  IV.
[brief] Neither [...] nor Plaintiff [...] were aware of this when they decided to purchase [...].  327a (10:17-20); 358a (41:2-13).  [...] needed the rezoning of [...] to cover the Township’s affordable housing obligation so that Defendant [...] could build the market rate development at [...] instead.  324a (7:22-8-1); 327a-328a (10:15-11:12); 336a (19:13-17); 747a-749a (145:5-149:18).
[directive] Our responsibility is to express an opinion on these financial statements based on our audit.  We conducted our audit in accordance with auditing standards generally accepted in the United States of Government Auditing Standards, by America, issued the Controller General of the United States and audit requirements issued by the Attorney General of the State of New Jersey and the Department of the Treasury and by the Division of Local Government Services, Department of Community Affairs, State of New Jersey.  Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatements.  An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements.  An audit also includes as assessing the accounting principles used and significant estimates made by management, well as evaluating the overall financial statement presentation.  We believe that our audit provides a reasonable basis our for opinion.  These financial statements have been prepared in conformity with accounting practices as prescribed by the Attorney General of the State of New Jersey and the Department of the Treasury and the Division of Local Government Services, Department of community Affairs, State of New Jersey. These practices differ in certain respects, which in some instances may be material, from generally accepted accounting principles applicable to local government units.  The more significant of these practices are described in Note to the 1 financial statements.  In our opinion, the financial statements referred to above present fairly, in all material respects, the respective Office 31, financial position of the [...] at December 200X. in and the changes in financial position and cash flows accordance with accounting principles and practices prescribed by the Attorney General of the State of New Jersey and the Department of the Treasury Local of and by the Division Government Services, Department of Community Affairs, State of New Jersey as -- - NoG 7 in described to the financial statements.
[brief] Nevertheless, the Planning Board properly considered the sign’s impact on the surrounding area and determined it would not affirmatively advance zoning purposes, and in fact would result in a substantial detriment to the public good.  In Westfield Motor Sales Co. v. Westfield, 129 N.J. Super. 528 (1974) the court stated:  ... a municipality may perceive that a plethora of signs of a certain size, no matter how tasteful, can have an undesirable cumulative effect upon the well-being of the entire community.  Is the citizenry then powerless to deal with this problem when it beholds the fruits of a philosophy of noninterference?  We think not.  In such a situation, assuming the municipality acts reasonably and fairly in the process of balancing the various interests, the right of the businessman to promote his goods may become subservient to the community's interest in its appearance.
[brief] (122-18 to 20)  At the time of the suspension, defendant was ordered to turn in all badges, ID cards, and NJSP-owned property.  (11T 144-6 to 16)  The prosecution had [...] testify to the jury about the requirements of turning in such items, as they had with other witnesses.  (11T 136-7 to 17)  [...] admitted, however, that there is nothing wrong with a trooper’s possessing business cards that identify him as a trooper, because those are private and not the property of the NJSP, even though they are often made in the NJSP print shop.  (11T 152-17 to 23)  [...], a former NJSP lieutenant, testified that he was defendant’s supervisor in the Firearms Investigation Unit in September 2016, and on the day of the suspension he retrieved defendant’s badge, wallet ID, both sections of defendant’s billfold ID, and much of defendant’s other NJSP property from defendant, even giving him a ride home after he did so.
[brief] This finding was made without being fully briefed and is contrary to the unambiguous statutory language in N.J.S.A. 18A:13-47.11.  The Commissioner’s decision is underpinned by the incorrect determination that [...] and/or [...] is a “consolidated school district. ”  See (Aa20).  The Commissioner does not explain the reasons for making these substantive decisions in the context of an *ex parte* request filed by [...] that was never formally served on [...] or [...] and after glossing over this very issue in her earlier April 3, 2023, Final Decision.  Instead, the Commissioner concluded that [...] can do as it wishes, despite its status and the express statutory language to the contrary.  (Aa19 – Aa21).  Then, recognizing the “unique procedural posture” of the matter, the Commissioner found that [...]’s requested relief is premature since the vote on the referendum in [...] and Atlantic [...] for the newly enlarged all-purpose regional district had not taken place.
[brief] Plaintiff/Appellant cites the case of *Rosenblit v. Zimmerman*, 166 N.J. 391 (2001), and provides this Court with the elements for fraudulent concealment and the explanation that the Rosenblit Court offered for spoliation.  (Pb12 to Pb13).  Notably, intent is the key element for both legal theories to apply.  Rosenblit, supra. 116 N.J. at 411.
[brief] #  TABLE OF AUTHORITIES | Cases | Page | |----------------------------------------------------------------------|------| | **Arterbridge v. Wayfair, LLC,** | 6, 7 | | 2022 WL 577956 (D.N.J. February 25, 2022) | | | **Ballinger v. Del. River Port Auth.,** | 5 | | 172 N.J. 586 (2002) | | | **Bosshard v. Hackensack Univ. Med. Ctr.,** | 10 | | 345 N.J. Super. 78 (App. Div. 2001) | | | **Cupi v. Carle BroMenn Med. Ctr.,** | 7 | | 2022 U.S.Dist. LEXIS 46555(C.D.Ill. Mar. 16, 2022) | | | **Hennessey v. Coastal Eagle Point Oil Co.,** | 4 | | 129 N.J. 81 (1992) | | | **Jason v. Showboat Hotel & Casino,** | 10 | | 329 N.J. Super. 295 (App.Div. 2000) | | | **Mehlman v. Mobil Oil Corp.,** | 4, 5 | | 153 N.J. 163 (1998) | | | **Palmateer v. International Harvester Co.,** | 8 | | 85 Ill. 2d 124 (Ill. 1981) | | | **Pierce v. Ortho Pharmaceutical Corp.,** | 1, 2, 4, 5, 10 | | 84 N.J. 58 (1998) | | | **Players Place II Condo. Ass’n, Inc. v. K.P.,** | 9 | | 256 N.J. 472 (2024) | | | **United States v. Pitt-Des Moines, Inc.,** | 8 | | 168 F.3d 976 (7th Cir. 1999) | | | **Viscik v. Fowler Equipment Co.,** | 9 | | 173 N.J. 1 (2002) | | Warner v. United Nat. Foods, Inc., 513 F. Supp. 3d 477 (M.D.Pa. 2021) ..............................................7 Other Authorities Executive Order No. 102.................................................................3 Executive Order No. 103...............................................................3 Executive Order No. 104...............................................................3 PRELIMINARY STATEMENT On March 13, 2020, in the wake of national and state emergencies relating to the Covid-19 Pandemic, Plaintiff wrote Defendant superiors stating, “Since we have the ability to efficiently work remotely, requiring us to come into the office during a pandemic unnecessarily risks our health.
[brief] [...] depended solely upon Defendants’ verbal representations that the items were present at the Property in 1994, without making any independent investigation to verify the statements.  At the time that the Township renewed its Motion to Bar the [...] Report as a net opinion, it had taken the depositions of [...], [...], and [...]’s son [...].  These depositions strongly indicated that the [...] Report was already unreliable in this regard.  At his deposition [...] then noted that the presence of the items was confirmed by inspection in 2018.  The report is silent as to how Mr. [...] confirmed the presence of those items in 1994.  Mr. [...] addressed this issue at his deposition in the following exchange:
[brief] (Pa190-199).  [...] found that the Premises was constructed in 1899, and that the streets were principally constructed within that time period as well.  (Pa195).  [...] further concluded that it is inappropriate to apply an NJDOT Design Manual to a repour of a residential sidewalk: It isn’t clear when the sidewalks were first put in, but it should be crystal clear that they were put in well before the 1995 NJDOT Roadway Design Manual.  That’s critical because the building evaluations the curbs together set the cross slope of the sidewalk and the property lines and driveway elevations set the driveway apron transitions.  Thus, even if the sidewalk had been repoured after the 1995 New Jersey Roadway design manual was published, the sidewalk maintenance performed to repair the cracked sidewalk would not come under aegis of that publication.
[brief] 502 U.S. 21 (1991).  In *[...]*, the United States Supreme Court rejected the argument that the language of Section 1983 does not authorize suits against state officers for damages arising from official acts.  In *[...]*, the Court of Appeals for the Third Circuit reversed the district court's decision.  *Id.*  The Court of Appeals held that while [...]'s power to hire and fire an aggrieved employee derived from her position as Auditor General, a suit for damages based on the exercise of this authority could be brought against [...] in a personal capacity because [...] acted under color of state law.
[brief] TABLE OF CONTENTS  PROCEDURAL HISTORY AND STATEMENT OF FACTS  .............1  LEGAL ARGUMENT .........................................................................................1  POINT I  BOTH OF DEFENDANT’S STATEMENTS SHOULD HAVE BEEN SUPPRESSED IN THEIR ENTIRETY BECAUSE HE WAS IN CUSTODY WHEN QUESTIONED WITHOUT MIRANDA WARNINGS ON MARCH 6, WHICH RENDERED INEFFECTIVE THE WARNINGS GIVEN PRIOR TO HIS INTERROGATION ON MARCH 12.  (21T50-23 to 61-17; Da128-130) .................................................................1  POINT II  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.
[brief] Defendant contends, however, that the trial court abused its discretion in imposing a sentence in excess of the seven year presumptive term for a second-degree crime, and that such a sentence violated defendant's constitutional rights to a jury trial and due process as articulated by the Supreme Court in *Blakely v. Washington*, 542 U.S. 296, 124 S.Ct. 2531, 159 L. Ed.2d 403 (2004).
[brief] The judgment or order sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any show that there is no genuine issue as to any material fact challenged and that the party is entitled to a judgment or order as a matter of law.  R. 4:46-2(c).  A court should deny a summary judgment motion only where the party opposing the motion has come forward with evidence that creates a “genuine issue as to any material fact challenged. ”  Brill v. Guardian Life Ins. Co., 142 N.J. 520 (1995).  In Brill, the New Jersey Supreme Court adopted the federal standard for evaluating summary judgment motions.  Our state courts are now guided by the same evidentiary standard of proof that would apply at a trial on the merits when deciding whether there exists a “genuine issue” of material fact.  Id. at 534.
[brief] With regard to the gun the State claimed defendant possessed:  Q  … did you see on page 114 [...] testified, right, at one point it is on line 21 where [...] said, yeah, he put it to my head and cocked the trigger back, right?  A  Um-hmm.  Q  So cocking the trigger back, that wouldn’t make you think that it was a Glock, is that right?  A  That’s correct.  1T55  Q …  So let me return that briefly to what I was saying.  So you still have your theory of the case, right, that, okay, the Glock fired this bullet that went into [...]’ knee but it wasn’t [...] who fired it.
[brief] The Appellate Division denied the judgment creditor’s demand for contract interest post-judgment in reasoning and holding as follows:  In support of this proposition, [...] cites *Estate of Kolker*, 212 N.J. Super. 427 (Law Div.1986) and *Shadow Lawn Sav. & Loan Ass’n v. Palmarozza*, 190 N.J. Super. 314 (App.Div.1983).
[directive] Enhanced 84 Extended 96 72 75 60 66 69 66 90 93 90 V 99 90 66 69 54 60 63 60 84 87 84 78 93 7.3.)  Section Term 66 75 60 66 69 72 84 90 93 99 96 90 in #3 84  Extended 54 60 63 66 69 84 87 78 90 93 IV 60  Characteristic 78 57 60 63 78 81 48 54 72 84 87 54  Offense 57 60 63 81 48 72 78 78 84 87 54 54  INTENT)  Serious Special 54 57 42 51 66 72 75 72 78 81 III 48 48 42 42 48 51 36 45 60 66 69 66 72 75 DEGREE)*
[brief] 24  #  TABLE OF AUTHORITIES  ## Federal Cases  **Manley v. Stark & Stark,** Civil No. 97-524 (AET), 1999 U.S. Dist. LEXIS 22082 (D.N.J. August 10, 1999) .................................................................................. 22, 23  **Worldwide Marine Trading Corp. v. Marine Transport Service, Inc.,** 527 F. Supp. 581 (E.D.P.A 1981) .......................................................... 23 ## State Cases **Banco Popular N. Am. v. Gandi,** 184 N.J. 61 (2005) .............................................................................. 21 **Banco Popular v. Gandi,** 184 N.J. 161 (2005) ............................................................................. 16 **Brill v. Guardian Life Insurance Co. of America,** 142 N.J. 520 (1995) ............................................................................. 13 **Chance v. McCann,** 405 N.J. Super. 457 (App. Div. 2009) .................................................... 12 **Cortes v. Gindhardt,** 435 N.J. Super. 589 (App. Div. 2014) ................................................... 18 **Delray Holding v. Sofia Design,** 439 N.J. Super. 502 (App. Div. 2015) .................................................... 19 **Dep’t of Treasury v. Quest Communications Intl., Inc.,** 387 N.J. Super. 469 (App. Div. 2006) ................................................... 22 **Interchange State Bank v. Veglia,** 286 N.J. Super. 164 (App. Div. 1995) ....................................................  21  **Judson v. Peoples Bank & Trust Co.,** 17 N.J. 67 (1954) ...............................................................................  13  TABLE OF AUTHORITIES  Meisels v. Fox Rothschild, LLP, 240 N.J. 286 (2020)  ...........................................................................................................  13, 15, 16  Morgan v. Union County Bd. of Chose Freeholders, 268 N.J. Super. 337 (App. Div. 1993) ..................................................................................  22  Petrillo v. Bachenberg, 139 N.J. 472 (1994)  ...............................................................................................................  1, 14, 15  Statutes N.J.S.A. 2C:41-1(d) and 2C:41-1a(1) and (2) ........................................................................  21 N.J.S.A. 2C:41-2, et seq.  .........................................................................................................  21 Court Rules Rule 4:46-2(c) ..........................................................................................................................  12  PRELIMINARY STATEMENT