ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Should the court consider reversing the trial court, [...] properly raised the Foreclosure Rescue Fraud Prevention Act as a defense to plaintiff’s claims.  (42a-43a)  Finally, plaintiff takes issue with the trial court’s citation to Marx v. Jaffe, 92 N.J. Super. 143, 146 (App. Div.) certif. denied, 48 N.J. 140 (1966) holding the law will not assist a party to an illegal contract but will leave them where it finds them.  [...] cited this case in its motion for summary judgment before the trial court below.  [...] contended the transaction at issue was illegal because it violated the Foreclosure Rescue Fraud Prevention Act, N.J.S.A. 46:10B-53 to -68, inclusive.  The trial court found that while the FRFPA could act as a bar to a direct claim brought by plaintiff against the [...], [...] could not rely on it because [...] lacked standing based on the definition of an owner within the Act.  [...]’s point to the trial court below was a bit more subtle.  We argued that the illegality defense was applicable if plaintiff were entitled to an insurance policy because the defense would bar [...] from the exercise of subrogation rights against third-party defendants, the heirs at law of [...], in order to recover its payment to plaintiff.  New Jersey Courts have uniformly held that subrogation rights are one of the most valuable rights of an insurance company and prejudice to those rights voids the policy.  Ferrante v. New Jersey Manufacturers Ins. Grp., 232 N.J. 460, 474 (2016).  Subrogation rights allow the insurer upon payment of a loss to “step into the shoes of the insured and …recover only if the insured likewise could have recovered. ”  Ferrante, 232 N.J. at 470, quoting Standard Accident Ins. Co. v. Pellecchia, 15 N.J. 162, 172 (1954).  “The law ‘highly favors’ subrogation as ‘a device of equity to compel the ultimate discharge of an obligation by the one who in good conscience ought to pay it. ”  Ferrante, 232 N.J. at 470 quoting Holloway v. State, 125 N.J. 386, 394 (1991).  Since the trial court correctly found [...] did not owe plaintiff a title policy or payment of a policy limit, the subrogation rights issue and the illegality defense were rendered moot.  Should this court, however, reverse the trial court’s ruling and find [...] owes plaintiff a title policy and payment of a policy limit, then the court should also analyze the illegality defense whether under FRFPA or the Tax Sale Law, N.J.S.A. 59:5-89.1.
[brief] Because a constitutionally mandated instruction on the crime of terroristic threats was not given to the jury, [...]’s terroristic threats convictions under counts 1 and 2 must be reversed.  In addition, the upgrade from third- to second-degree terroristic threats violated his substantive due process rights and independently requires reversal of those convictions.  [...] is furthermore entitled to a new trial because the Atlantic County judiciary should have been recused from his case.  In the alternative, this case must be remanded for resentencing due to the trial court’s failure to merge the fourth-degree convictions, its reliance on an erroneous factual basis for imposing consecutive terms, and its imposition of a sentence which was overall manifestly excessive.  Respectfully submitted, [...]
[directive] Standard 10:  PROSECUTION  Recognizing the profound impact that crimes of sexual assault have on both child and adult victims and their families, prosecutors shall use a victim-centered approach when working with victims of sexual assault and in handling their cases.  Each County Prosecutor’s Office should have at least one assistant prosecutor with specialized training in investigating and prosecuting sexual assault cases.  Prosecutor’s Offices shall establish procedures to maintain custody of any forensic evidence collected during a medical forensic exam conducted within the county.  If the victim is undecided about reporting an incident to law enforcement at the time of the medical forensic exam, the prosecutor shall establish a procedure for all evidence to be secured for not less than five years from the examination date; and where the victim is a minor, for not less than five years after the victim reaches the age of 18.  Effective July 10, 2014, victims who elect to have evidence held shall be contacted by the FNE Coordinator prior to the end of the retention period.  For evidence collected prior to July 10, 2014, the county shall follow county notification procedures in effect at the time the evidence was collected.  This procedure will allow every victim an opportunity to make an informed decision on whether to release evidence to law enforcement.  (See Attorney General Directive 2011-1, Requiring Procedure for Retaining Sexual Assault Forensic Evidence “Hold” Kits and Extending the Time for Victims to Decide Whether to Report the Crime and Release Collected Evidence to Law Enforcement Authorities, Appendix XIII).  After the five-year retention period expires, and the prosecutor determines to destroy the SAFE Kit, the prosecutor shall notify the Director of the Division of Criminal Justice, or their designee, to provide the Division the opportunity to take custody of the kit and assume responsibility for its continued retention.  County Prosecutor’s Office personnel shall adhere to the Attorney General Standards to Ensure the Rights of Crime Victims as codified in N.J.S.A. 52:4B-44 when working with victims of sexual assault.  The victim of a sexual assault shall be provided an opportunity to discuss their case with the prosecuting attorney prior to concluding any plea negotiations.  (See N.J.S.A. 52:4B-44 and N.J.S.A. 2C:14-2.1).  This input not only gives the victim a stronger voice in the criminal justice process, but also returns a small amount of control to the victim over their situation.  The prosecuting attorney, however, should be mindful to manage a victim’s expectations about the resolution of a case, especially when options arise that are better suited for the overall pursuit of justice, but which may not fully align with the victim’s wishes.  Additionally, when the final disposition of a sexual assault investigation involves a determination not to prosecute the matter, an assistant prosecutor shall provide the victim with -26-  ATTORNEY GENERAL STANDARDS FOR PROVIDING SERVICES TO VICTIMS OF SEXUAL ASSAULT
[brief] See N.J.S.A. 40:55D-70(d)(3).  In that case, the use becomes a permitted use in the sense that no variance is required.  However, if a property owner seeking to devote the property to a conditional use cannot meet one or more of the conditions imposed by the zoning ordinance, the property owner must apply for a (d)(3) conditional use variance.  The inability to comply with one or more of the conditions does not convert the use into a prohibited one, and thus, the application is not tested in accordance with the standards established in Medici that govern applications for a (d)(1) use variance.  Instead, the question is whether, in light of the failure to meet one of the conditions fixed by the zoning ordinance, the use ‘is reconcilable with the municipality’s legislative determination that the conditions should be imposed on all conditional uses in that zoning district. ’ [Coventry Square, 138 N.J. at 299].  In undertaking that analysis, the weighing is entirely different from that demanded for a (d)(1) use variance because the governing body has not declared that the use is prohibited but, instead, has elected to permit the use in accordance with certain express conditions.  Accordingly, the focus of the analysis is on the effect of noncompliance with one of the conditions as a relates to the overall zone plan.
[brief] The Trial Court Erred in Entering Summary Judgment against [...] at a Time When It Was Without Counsel.  On February 6, 2023, the trial court signed a “Consent Order” (to which [...] had not consented and had not been asked to consent) permitting counsel for [...] to withdraw.  (PPCIa364-65).  The Consent Order did not set a date by which new counsel for [...] would have to appear or that, if it did not retain new counsel, it would be in default.  *Id.*  [...]’s answer and affirmative defenses were not suppressed and remained defenses to [...]’s claims when [...] moved for summary judgment.  The April 6, 2023 “Final Judgment” against [...] misstates that the matter was before the court “with [...], appearing for [...]; and the Court having considered… the evidence presented by the Defendant, the arguments of counsel, and the papers submitted…” (PPCIa369-71).  [...] had been granted leave to withdraw as counsel for [...] two months earlier, such that [...] was (and remains) unrepresented.  (PPCIa364-65).  [...] did not file opposition to [...]’s motion, nor did counsel make arguments on [...]’s behalf.  Business entities cannot represent themselves: they must appear in litigation through “an attorney authorized to practice in this State. ”  R. 1:21-1(c).  “A judgment entered in favor of a business entity when the entity was not represented by an attorney authorized to practice law in this State as required by *Rule* 1:21–1(c) is voidable at the election of the adverse party without a showing of a material irregularity in the trial proceeding or that the judgment was otherwise erroneously entered. ”  *Gobe Media Group, LLC v. Cisnero*, 403 N.J. Super. 574, 577 (App. Div. 2008), The February 6, 2023 “Consent Order” allowing counsel for [...] to withdraw did not set a date by which [...] would have to retain new counsel or have its pleadings stricken; [...]’s answer and defenses to [...]’s complaint were viable when [...] moved for summary judgment.
[brief] Secondly, and more importantly, the facts of *Bijacsко* are inapposite to the facts of defendant's case.  In *Bijacsко*, defendant handed over an axe in response to custodial interrogation without being given any *Miranda* warnings or without having provided the police his consent.  (Da63-64).  In contrast, defendant here physically handed over nothing in response to an unwarned police interrogation.  Rather, defendant gave his knowing, intelligent, and voluntary consent four times and signed four consent to search forms.  (Pa1-4).  Thus, the issue in defendant's case was whether his consent to search had been coerced, where defendant was advised that he had a right not to consent and could withdraw his consent at any time.
[brief] (3T162:15)  This constitutes grounds to grant Plaintiff JNOV in the amount of $10,660 based on Defendant’s undisputed and undisputable admission that Plaintiff is entitled to the correction of this $10,660 “mistake”.  (3T166:11-25)  Moreover, Plaintiff’s undisputed entitlement to reimbursement of this $10,660 “mistake” also precludes the $119,256.40 fee award in Defendant’s favor.  As such, the trial court should not have found Defendant the prevailing party nor should it have held Plaintiff liable to reimburse Defendant’s fees and costs as this improperly penalized Plaintiff for pursuing meritorious claims.  In addition, Defendant’s acknowledgement that Plaintiff was a member of [...] starting in 2016 (3T114:10-115:14; 3T119:14-24; 3T122:1-10), and that he was entitled to 49% of the profits the company earned that year (3T:122:11-18), but that he received none of these 2016 profits (3T119:7) should be deemed dispositive on this issue.
[brief] If this Court were to consider the doctrine of collateral estoppel, it should find that all elements are met.  Collateral estoppel applies when: (1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.  [Winters v. N. Hudson Reg’l Fire & Rescue, 212 N.J. 67, 85 (2012) (quoting Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521 (2006)).]  The first element is satisfied because here, the issue is whether [...] can proceed with its bad faith claim, which is the same issue [...] raised in its appeal of the First Action.  (See Pa192; Pa779–80.)  The second element is also satisfied because [...] unsuccessfully litigated the same bad faith claim in the trial court and in this Court, and now seeks to raise it again in a third attempt to have the Redevelopment Resolution declared null and void.  (See Pa788–90.)  The Appellate Division issued a final judgment affirming the trial court’s denial of [...]’s motion for leave to amend its complaint in the First Action thus satisfying the third element.  (See Pa769–90.)  And in affirming the trial court’s decision on an abuse of discretion standard, the fourth element is met because the Appellate Division specifically considered this issue and found [...]’s bad faith claim to lack merit and that the Redevelopment Resolution was supported by credible evidence.  (See, e.g., Pa789–90.)  The fifth factor is easily met because [...] is the party against whom the doctrine is asserted and the plaintiff in the First Action.  (See Pa770.)  Thus, even if the Court were to entertain [...]’s argument on the doctrine of collateral estoppel—which it need not because the entire controversy doctrine precludes [...]’s action—it should find that the doctrine provides further support for finding that the trial court did not err in its decision to deny [...]’s Motion to Reinstate and dismiss its Complaint.
[brief] com/2018/03/18/nyregion/testilying-police-perjury-new-york.html](http://www.nytimes. com/2018/03/18/nyregion/testilying-police-perjury-new-york.html)  [...] and his wife if they found anything during their search, [...], knowing that there were drugs in the car, told the officers that anything they happened to find belonged to him, not his wife.  (1T 112-24 to 113-3)  [...]’s recitation of events is “credible in itself” and comports with “common experience. ”
[brief] “[E]vidence is material for Brady purposes ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. ’”  Marshall, 148 N.J. at 156 (quoting Bagley, 473 U.S. at 682 (1985)).  In Nelson, 155 N.J. at 500, the New Jersey Supreme Court further explained this element as follows:  [A] showing of materiality does not require demonstration by a preponderance that a disclosure of the suppressed evidence would have resulted ultimately in the defendant’s acquittal. ”  Kyles v. Whitley, supra, 514 U.S. at 434, 115 S.Ct. at 1565.  Rather, the question is whether in the absence of the undisclosed evidence the defendant received a fair trial, “understood as a trial resulting in a verdict worth of confidence. ”  Id. at 434, 115 S.Ct. at 1566.  Here, the State obtained the sworn Petition for Habeas Corpus of [...] one year prior to [...]’s trial, wherein Torres affirmed that he had no knowledge of the State Island robbery and kidnapping of [...]; that he was prepared to submit an affidavit from a witness confirming that fact; that additional evidence in the form of letters existed that would corroborate that he did not participate in the Staten Island home invasion and kidnapping; and that his counsel failed to contact the witness who would have provided proof to support same.
[brief] * * *  At bottom, regardless of which the many definitions of “excessive” the Department ultimately might settle upon (or newly advance), the fact remains that without regulations, without any other regulatory guidance on excessiveness, without a single adjudication applying the statutory term “excessive,” and with a lengthy history of communications between [...] and the Department prior to the disapproval letter that never mentioned excessiveness, [...] had no way to know what this statutory requirement entailed.  It was also inevitable that the ALJ and Commissioner, having improperly reframed the Department’s stated denial bases as code for “excessiveness”, would thereupon rule in an *ad hoc*, standardless manner.  This is precisely why rulemaking was essential if the Department wished to rule on excessiveness grounds, and why reversal is required here.
[brief] A.  The Borough Did Not Follow the Evaluation and Completeness Process It Established for Reviewing and Scoring Applications  The Borough established a process and evaluation criteria for assessing applications but failed to follow that process.  (63a).  The Borough also established a completeness process, which required rejecting incomplete applications, but failed to enforce that process.  The Borough established this procedure “to ensure transparency in the evaluation process” requiring the Subcommittee to “review and evaluate each Applicant based on” specific criteria.  (74a).  The Borough erred by failing to adhere to its own process and those errors were arbitrary, capricious, and unreasonable.
[brief] Three cases illustrate this distinction.  In *State v. Rivers*, the defendant’s denial of guilt was considered a relevant sentencing factor only because the defendant had already admitted guilt in his presentence report.  252 N.J. Super. 142, 153-54 (App. Div. 1991).  In *State v. Carey*, the defendant did not deny that he was involved in the relevant car accident, but denied that he was responsible for the crash itself and refused to admit that he had a drinking problem.  168 N.J. 413, 426-27 (2001).  In *State v. Hess* – cited by the sentencing court as authority for its consideration of [...]’s purported lack of remorse – the defendant pled guilty to sexual assault and admitted to having contact with the victim, but attempted to justify his behavior by “placing [his] motives on a lofty plane” and “rationaliz[ing]” his actions.
[brief] On October 15, 2018, the parties appeared before the [...] and presented their respective arguments.  Ignoring the advice of its counsel, and over the objections of the [...] and with no proofs supporting Defendant’s application, on October 15, 2019, the [...] passed a motion that the [...]’s use of the [...] for parking was a non-conforming use.  On November 1, 2018, the [...] filed its Verified Complaint in Lieu of Prerogative Writs and an Order to Show Cause against the [...] and [...] along with its brief in support thereof, appealing the October 15, 2018 determination of the [...] and an October 25, 2018 Notice of Violation issued by the [...] (“PW Action”).
[brief] [...]’s amicus brief provides a practical perspective as to why Plaintiff’s position in this action is untenable, and, in reality, would discourage manufacturers from incorporating technological advances.  [...] submits that its \(^2\) [...] relied on this provision at the trial court level.  Plaintiff never argued that the statute was inapplicable; he never addressed the statute at all.  The first time Plaintiff opposed application of this statute is in his reply brief.  *See Bouie v. New Jersey Dep't of Cmty. Aff's.*, 407 N.J. Super. 518, 525 (App. Div. 2009) (“a party may not advance a new argument in a reply brief”).  brief, together with [...]’s, fully supports the affirmance of the trial court’s order granting its motion for summary judgment.  Dated: December 22, 2023  Respectfully submitted, /s/ [...]  C. BRIAN KORNBREK - 02334-1992  [...] - 01388-2006  [...]  [...]  Telephone: [...]  [...]; [...]  [...] (Admitted Pro Hac Vice)  [...]  [...]  Telephone: [...]  [...]  [...] – 03466-1982  [...]  [...]  Telephone: [...]  [...]  Attorneys for Respondent, [...]  [...], Individually and as Administrator of the Estate of [...], deceased, Plaintiff-Appellant, v. [...], AMERICAN HONDA MOTOR CO., INC., [...], and [...], as Administrator of the Estate of [...], deceased, Defendants-Respondents.
[brief] To the contrary, [...] specifically stated he was granting [...]’s motion because the Board had already granted approval that was memorialized in the Original Resolution on December 12, 2022 and “then 42 days later or whatever it was they decided—that was only conditional approval.  And they went back and they unpassed [the December 12, 2022 resolution].”  2T4:17-25.  The bad faith misconduct is evident in both the outcome and the process followed by the Board.
[brief] (Pa681) 103:11-24, 118:1-120:12; (Pa230, Pa324-417) 98:17-104:25, 106-109:19, 233:3-234:13.  Appellant was told that she was being transferred to the Camden office.  (Pa230); (Pa324-417) 98:17-104:25, 106-109:19, 233:3-234:13; (Pa655-722) 105:17-113:14; (Pa981).  --- 4  Appellant was told to pack everything up and leave without saying goodbye to her coworkers or coordinating cases.  Appellant was also questioned about the investigator “traffic” in her office.  She was confused by this question as it was common that investigators came into the office regularly to ask questions and provide updates on pending cases.  She was also questioned about walking around the parking lot during her breaks in the summertime.  Appellant was puzzled by this question because she had walked around the outside of the building with [...] in the past during breaks without issue.  She was then alleged to have walked around the building with [...], but she immediately denied that allegation.  Appellant then met with another allegation – that she had been clocked sitting at a caseworker’s cubicle for two hours, which was false.  Appellant had never heard of these allegations prior to raising her complaints about [...].  (Pa230, Pa324-417)  98:17-109:19, 233:3-234:13.  On or about December 3, 2018, Appellant was transferred to the Camden office, where her new supervisor asked if she intended to move forward with a lawsuit.
[brief] This is not a case in which Respondents’ cut a back-door deal without the public’s knowledge and for nothing beyond Respondents’ own personal gain.  On the contrary, Respondents went out of their way to present these issues to the public.  Petitioner even faults Respondents for having too many meetings on the issue.  Moreover, Respondents never in their official capacity passed an opinion on which way the public should vote.  Whenever Respondents commented on the referendum in their individual capacity, they included an appropriate disclaimer.  It is difficult to conceive of what Respondents could have done differently to be more transparent and open to the public regarding the referendum.  Accordingly, the Commission’s decision dismissing Petitioner’s complaint should be affirmed.
[brief] A defendant exercise his right of confrontation through cross-examination, which has been described as the greatest legal engine ever invented for discovery of the truth."  *California v. Green* 399 U.S. 149, 158 (1970).  A defendant's confrontation right must accommodate "legitimate interests in the criminal trial process, "such as established rules of evidence and procedure designed to ensure the efficiency, fairness, and reliability of criminal trials."  *State v. Garron*, 177 N.J. 147, 169 (2003).  The Constitution guarantees criminal defendant's a meaningful opportunity to present a “complete defense. ”  *State v. Cope* 224 N.J. 530 (2016)(quoting *Crane v. Kentucky*, 476 U.S. 683, 690 (1986).  That would be a empty one if the state were permitted to exclude competent, reliable evidence is central to the defendant's claim of innocence."  *Crane*, at. 690.  The state was permitted to exclude central evidence to defendant’s innocence with excluding the CAD report.  In any event the defendant was denied his right to confrontation as the CAD report was not inadmissible.  Even if this court does not find *Alston*, persuasive, fair application of the exceptions to the hearsay rule, should.  Furthermore, defendant's right to present a complete defense was hampered in the process.  A new trial is warranted.