ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The trial court raised the issue *sua sponte* after briefing and oral argument and found the Ordinance to be unconstitutionally overbroad.  Ordinance 17-2017 was enacted by the Borough to legislate noise nuisances within the [...].  Like all legislative enactments, there is a strong presumption in favor of the validity of municipal ordinances.  *Fanelli v. City of Trenton*, 135 N.J. 582, 589 (1994).  First and foremost, there is a strong presumption in favor of the validity of legislative enactments, including municipal ordinances.  While the presumption may be rebutted, the affirmative burden placed upon a party seeking to overturn a statute or ordinance is a heavy one.  The presumption is not overcome, and a legislative enactment will not be declared void unless its repugnancy to the Constitution is so manifest as to leave no room for reasonable doubt.  *Singer v. Twp. of Princeton*, 373 N.J. Super. 10, 19–20 (App. Div. 2004).  (internal citations omitted)  Further, in evaluating legislation and an inquiry into whether the Ordinance at issue is overly broad, substantive due process must be considered and the government’s reach and intrusion into Constitutionally protected areas measured.  The Legislation must reach “a substantial amount of constitutionally protected conduct,” and “there must be a strong showing that the statute's deterrent effect on legitimate expression is real and substantial. ”  The overbreadth concept “rests on principles of substantive due process” and “whether the reach of the law extends too far.  The evil of an overbroad law is that in proscribing constitutionally protected activity, it may reach farther than is permitted or necessary to fulfill the state's interests. ”
[brief] Id., at 57:4 to 59:8.  [...], a Board-Certified Orthopedic surgeon, testified as Plaintiff’s expert.  4T., at 4:20 to 51:4.  He opined that Plaintiff sustained “cervical disc herniations at the C5-6 and C6-7 levels” and bulging discs in his low back at the L4-5 and L5-S1 levels.  Id., at 12:8 to 16.  He opined further that Plaintiff’s cervical injuries were permanent.  Id., at 12:17 to 24.  He was unable to say whether Plaintiff’s low back injury was permanent.  Id., at 12:25 to 13:11.  His opinion with respect to Plaintiff’s cervical spine was based upon his interpretation of an EMG study which he described as revealing right-sided C5, C6 nerve abnormalities which were consistent with a diminished biceps reflex detected during his physical examination.  Id., at 31:19 to 33:12.  According to [...], Plaintiff’s neck “will never return to normal,” and he will have difficulty “maintaining his head and neck in fixed positions, car riding, turning, looking up, looking down, holding it in a sustained fashion. ”  Id., at 41:9 to 42:13.  [...] did not describe any similar ongoing limitations with Plaintiff’s low back, did not opine that Plaintiff required further treatment for either his neck or his low back and did not opine that Plaintiff was unable to work at any time following the accident.  Plaintiff was examined on March 21, 2023, at the defense’s request, by [...], also a Board-Certified Orthopedic surgeon.
[brief] Moreover, there is no ascertainable loss where a debtor never paid any money to the collection agency.  *DepoLink*, 430 N.J. Super. 325, 341.  Here, Appellant concedes that she owes the subject Obligation, and that she did not pay any money toward the Obligation.  [...]’s licensing status does not change those facts.  Under the foregoing cases, therefore, there is no ascertainable loss.
[brief] (Pa3).  After an investigation, it was determined [...] had ordered refried beans, advertised as Kosher, but that [...] received beans with lard and had arranged for a refund from the vendor.  (Pa8).  The investigation also noted [...]’s original property claim form was not received until October 24, 2022, despite the outside vendor agreeing to refund [...] in August 2019.  Ibid.  After its review, around November 17, 2022, the [...] denied [...]’s claim, issuing the DOC’s final agency decision and finding that, under N.J.A.C. 10A:2-6.2, the “[i]nvestigation revealed no negligence/fault by the correctional facility.
[brief] [...] testified that he started his own trucking business with a partner in or around 2016.  (5T58:2-5).  He explained that his company would pick up and transport big shipping containers that would arrive at the local port.  (5T58:17-24).  While working an overnight shift several years earlier, three individuals robbed [...], and as a result he started carrying the starter pistol as a deterrent.  (5T59:14-20).  He estimated that he had been carrying the starter pistol for about four years prior to the incident in question.  (5T60:1).  [...] also testified about the incident which occurred on January 25, 2021.
[brief] The Commission arbitrarily ignored its own precedents and the evidence when considering violations of N.J.S.A. 18A:12-24.1(e) (Raised at: Pa14)  In its order to dismiss, the Commission lumps all alleged violations of N.J.S.A. 18A:12-24.1(e) into a single decision point (Order to Dismiss, Pa14).  Specifically, counts 9, 10, 11, 13, 16, and 17 in the Complaint are dealt with in a group.  The Commission’s sole insight into its decision here is repeated here in its entirety:  Other than provide factual averments that the named Respondents made statements and/or publicly advocated and offered their personal support for (or opposition to) matters related to the Board, Complainant has not shown how same could have compromised the Board.  Regarding the social media posts, although the Commission concedes that there are circumstances when such activity could violate N.J.S.A. 18A:12-24.1(e), the social media activity here was either made in a private/personal capacity, appropriately disclaimed, and/or clearly not in one’s official capacity.  (ibid)  There are several problems with the above decision by the Commission.
[brief] This appeal concerns a statute enacted shortly following the outset of and as a result of the COVID-19 pandemic.  Defendant/respondent [...] ("[...]") is a janitorial services company that provides services to numerous New Jersey public school districts, which have chosen to outsource their custodial service requirements as a cost savings measure.  Plaintiff/appellant [...] ("[...]") operates one such district.  [...]’s contract with [...] was publicly bid and provided for a monthly payment in exchange for [...]’s provision of specified custodial services for [...]’s schools.  As was the case throughout the State, in mid-March 2020, [...] closed its public schools and transitioned to remote learning.  As a result, [...] was instructed not to enter [...]’s buildings, and in any event, since there were no students or employees occupying those buildings, they did not require custodial services.  [...] accordingly laid off all of its custodians that had been assigned to [...].  [...] did not issue payment to [...] for services commencing in April 2020, as [...] was not rendering any services to it.  In an effort to ameliorate some of the ramifications of the pandemic arising from resulting employment terminations, the Legislature passed and the Governor signed into law an amendment to N.J.S.A. 18A:7F-9 (Public Law 2020, c.27), to add section e(3), to be effective on April 14, 2020, that provides in relevant part:  If the schools of a school district are subject to a health-related closure for a period longer than three consecutive school days, which is the result of a declared state of emergency [or] declared public health emergency . . . then the school district shall continue to make payments of benefits, compensation, and emoluments pursuant to the terms of a contract with a contracted service provider in effect on the date of the closure as if the services for such benefits, compensation, and emoluments had been provided, and as if the school facilities had remained open.  Payments received by a contracted service provider pursuant to this paragraph shall be used to meet the payroll and fixed costs obligations of the contracted service provider.[.]  (Emphasis supplied.)  The purpose of this statute (the “COVID Statute” or the “Statute”) is quite obvious:
[brief] [Ibid. (Da96)]  Acting Governor [...] stated that the purpose of the law was to “put[] violent criminals or those convicted of drug offenses on notice that they can’t purchase, own, possess or control a firearm” because “the best way to reduce crime is to ensure that we keep guns out of the hands of those who Shouldn’t have a gun in the first place. ”  Press Release, Office of the Governor, “Difrancesco Signs Law To Keep Guns Out Of The Hands Of Violent Criminals, Establishes Mandatory Minimum Five-Year Prison Terms” (Aug. 21, 2001).  (Da97)  Thus, the intent of N.J.S.A. 2C:39-7(b) was clearly to enhance the penalty when convicted felons merely possess a firearm; it was not targeted at increasing the penalty for convicted felons who use a firearm.
[brief] Prejudice is completely immaterial.  In sum: (1) this is an express waiver case, so the Cole factors do not apply at all here and the Trial Court correctly declined to rescind a waiver of arbitration; (2) even if the Cole factors were relevant – and they are not – the Cole factor of prejudice vel non, relied upon centrally by the Defendants is never a determinative factor at all under the Supreme Court’s Morgan decision.
[brief] Pa1 Transcript of Oral Argument, dated September 29, 2023  ........................................  1T ### TABLE OF AUTHORITIES | Cases: | | --- | | **Ames v. Premier Surgical Ctr., L.L.C.,**<br>2016 WL 3525246 (App. Div. June 29, 2016) | ..................................................14 | | **Amtec Int’l of NY Corp. v. Polish Folklore Import Co., Inc.
[directive] Role of Police Communications  8.1  The communications operator shall do the following during a vehicular pursuit: (a) immediately notify a police supervisor of a pursuit in progress if a supervisor has not already been otherwise notified; (b) keep the supervisor apprised of the duration and progress of the pursuit; and (c) obtain from the pursuing officer any information listed in Section 4.3 of this Policy that was not initially provided by the pursuing officer.  8.2  When possible, a police supervisor shall determine whether there is a need to assume control over and coordinate pursuit related communications.  8.3  All law enforcement agencies shall establish procedures to ensure that radio channels remain open for pursuit related transmissions and that all necessary information is made available to officers involved in the pursuit.  9  Reinstating Pursuits
[brief] After [...] weighed the relevant aggravating and mitigating factors, she sentenced defendant to a prison term shorter than the agreed-upon sentence in the plea agreement.  On appeal, an appellate court must defer to the sound judgment of the sentencing court, provided the sentence is reasonable and supported by competent credible evidence in the record.  *State v. Pierce*, 188 N.J. 155, 170 (2006); *State v. Bieniek*, 200 N.J. 601, 608 (2010).
[brief] *Maeker v. Ross*, 219 N.J. 565, 578 (2014) (citations omitted).  That practice, however, is no more than a rule of statutory interpretation meant to “aid the court in the search for legislative intent. ”  *Twiss v. State*, 124 N.J. 461, 467 (1991) (citation omitted).  As such, it “is not to be applied mechanistically to every case. ”  *Gibbons v. Gibbons*, 86 N.J. 515, 522 (1981) (*citing Rothman v. Rothman*, 65 N.J. 219, 224 (1974).
[brief] An express contract is one in which the parties have shown their agreement by words.  Express contracts include those in which the parties have orally stated the terms to each other or have placed the terms in writing.  Nor does defendant deny the predicates to a breach of contract – i.e., defective performance\textsuperscript{49} via furnishing of contaminated water failing to meet statutory requirements\textsuperscript{50} - defendant admits selling contaminated water.
[brief] Under New Jersey law, the court shall modify or correct the award if: (1) there was an evident mathematical miscalculation or an evident mistake in the description of a person, thing, or property referred to in the award . . . [or] (3) the award is imperfect in a matter of form not affecting the merits of the decision on the claims submitted.  N.J. Stat. Ann. § 2A:23B-24(a). offered by [...] and the amount [...] had “paid against” those EGPs.  Da291-345.  The Arbitrator’s discussion of the Hackensack Project, in which he explains that the reason he is denying [...]’s claim for EGP on this project is that “the update sheets . . . for many months showed the amount due to [...] to be the amount previously paid, that is $191,381.00,” [Da138] is evidence that “updates” referred to by the Arbitrator are [...] Exhibit Numbers 5-12.  The only documents that reflect this figure are found in the Financial Reportings marked as [...] Exhibit Numbers 5-12.
[brief] The lack of verifiable details in the tip further undermines the informant’s purported reliability; the only such details provided were the specific storage unit rented by [...] and [...]’s cellphone number.  (Dca 5-6)  He did not describe, for instance, the manner in which the drugs are packaged for delivery to the unit or what times of day [...] accepts deliveries.  See Keyes, 184 N.J. at 558 (lack of detail in informant’s tip weakened basis of knowledge prong where the tip merely provided the address at which the defendant was selling cocaine and indicated that there were lookouts standing outside the apartment to alert drug dealers to the presence of police).  Thus, while [...] told police that he obtained the information personally and not secondhand, nothing else about the tip implies reliability.
[brief] For the purposes of this appeal, Appellee accepts Appellant’s Procedural History statement of facts but notes additional history below.  In addition, Appellant erroneously references Jury Verdict Questionnaire at Da154 of his Appendix.  The correct Jury Verdict Questionnaire can be found in Appellant’s Appendix at Da272, 273 and at Db1-2.  Lastly, Appellant erroneously states that Appellee [...]/[...] has settled with plaintiff; there has been no settlement.  LEGAL ARGUMENT POINT I THE JURY’S FINDING THE APPELLANT [...] WAS 40% AT FAULT FOR THE ACCIDENT WAS REASONABLE AND SHOULD NOT BE DISTURBED (Da272, 273; Db1,2)
[brief] The policy for the TOA Rule does not authorize the Planning Board’s exercise of jurisdiction in derogation of the plain language of N.J.S.A. 40:55D-70(d)(3). *  [3T]  Disregarding its own failure to file the Board application before the Ordinance went into effect, [...] resorts to an incorrect policy argument that amounts to a claim that the Supreme Court got it wrong in Dunbar, supra.  [...] wants this Court to ignore the plain language of N.J.S.A. 40:55D-70(d)(3) that assigns exclusive jurisdiction over applications for development requiring conditional use variance to boards of adjustment.  In doing so, [...] also asks the Court to disregard the plain language of the TOA Rule and seeks to contort the TOA Rule’s legislative history in a misguided effort to rescue itself from its failure to file its application with the Board prior to April 28, 2022, to say nothing about its obligation to file a complete application prior to the effective date of the Ordinance.
[brief] (Da154.)  [...]’s counsel stated that:  [[...]] have already indicated that they intend to engage in further motion practice to compel additional ESI discovery.  Based on past experience, it is likely that after reviewing [[...]’] ESI production the [...] Defendants will need to raise deficiencies with the Court (for example, 7 [...] asserts that it was unaware while negotiating search terms that it would be required to produce all of its search results.  (Da122 ¶¶ 11-12.)  Although [...] and [...] disagree on this point, [...] was in the best position to know the protocols in place while the parties negotiated search terms and to ensure that no party was placed at an unfair advantage.
[brief] First, [...] was notified it was erroneously enrolled and was being unenrolled from the CCIP mere hours after [...] received the auto-generated “Welcome Letter” on July 30, 2015, when [...] e-mailed [...] stating “Atlantic will not be able to enroll into the CCIP for that work” because the CCIP “cannot enroll subcontractors into the CCIP who are performing structural demolition.
[brief] ”  Brill v. Guardian Life Ins. Co., 142 N.J. 520, 538 (1995).  In deciding whether a genuine issue of material fact exists, the court must “draw[] all legitimate inferences from the facts in favor of the non-moving party. ”  Friedman v. Martinez, 242 N.J. 449, 472 (2020).  The trial court must not decide issues of fact; it must decide only whether any such issues exist.
[brief] (4T 116-1 to 18)  [...] told [...] that [...] was not there; [...] also told [...] that he did not want to fight, and [...] walked off the porch.  (4T 116-19 to 117-3)  [...] and his brothers returned across the street and walked past [...]’s car.  (2T 161-16 to 162-25)  [...] went inside to cook and called his friend, [...], to come to the home with a gun.  (4T 117-24 to 119-24).  [...] arrived about 15 minutes later and parked in the lot directly across the street from the [...].  (4T 120-5 to 122-12).  [...] was inside his house resting; he grabbed his BB gun and exited his house when he saw [...] arrive.
[brief] #  TABLE OF AUTHORITIES | Cases | Page(s) | |----------------------------------------------------------------------|---------| | **Arpaio v. Robillard,** | | | 459 F. Supp. 3d 62 (D.D.C. 2020) | 10 | | **Bacon v. New Jersey State Dep’t of Educ.,** | | | 443 N.J. Super. 24 (App. Div. 2015) | 4 | | **Dershowitz v. Cable News Network, Inc.,** | | | 541 F. Supp. 3d 1354 (S.D. Fla. 2021) | 10 | | **Durando v. Nutley Sun,** | | | 209 N.J. 235 (2012) | 11, 13 | | **Gray v. Press Commc’ns, LLC,** | | | 342 N.J. Super. 1 (App. Div. 2001) | 12 | | **Harte-Hanks Commc’ns, Inc. v. Connaughton,** | | | 491 U.S. 657 (1989) | 10 | | **Neuwirth v. State,** | | | 476 N.J. Super. 377 (App. Div. 2023) | 1 | | **Pistilli-Leopardi v. MediaNews Grp., Inc.,** | | | 2020 WL 3967992 (N.J. Super. Ct. App. Div. July 14, 2020) | 8 | | **Pro. Recovery Servs., Inc. v. Gen. Elec. Cap. Corp.,** | | | 642 F. Supp. 2d 391 (D.N.J. 2009) | 11, 12 | | **Secord v. Cockburn,** | | | 747 F. Supp. 779 (D.D.C. 1990) | 13 | | **St. Amant v. Thompson,** | | | 390 U.S. 727 (1968) | 11, 12, 14 | | **Turf Lawnmower Repair, Inc. v. Bergen Rec. Corp.,** | | | 139 N.J. 392 (1995) | 12 | | **Ward v. Zelikovsky,** | | | 136 N.J. 516 (1994) | 4 | # TABLE OF APPENDIX | Document | Page(s) | |--------------------------------------------------------------------------|---------| | Amended Complaint | Da_001 | | First Page of Complaint and Jury Demand | Da_153 | | Cover and Table of Contents of [...]’s Motion to Dismiss the Amended Complaint | Da_154 | | Cover and Table of Contents of [...] and [...]’s Motion to Dismiss the Amended Complaint | Da_156 | | Notice of Motion of [...] to Dismiss the Complaint | Da_158 | | Supplemental Memorandum of Law in Further Support of Motion by Defendant [...], Inc. to Dismiss the Amended Complaint | Da_160 | | Supplemental Memorandum of Law in Further Support of Defendants [...] and [...]’s Motion to Dismiss the Amended Complaint | Da_173 | | October 23, 2023
[directive] 6.  ___ _______ --~_  Dispositive Motions - on 20 at AM or PM  Non Dispositive Motions ---- 20 -------· --- ---- AM PM at or on immediately before trial  7a.  Did defense counsel discuss with the defendant his/her immigration status, the potential of or consequences a guilty plea conviction and his/her right to seek legal advice on D D NJ (State [...], 200 v. No his/her immigration status.
[brief] (1T)  The State moved for a discretionary extended term under the persistent offender statute, N.J.S.A. 2C:44-3(a), and the court found that [...] met the statutory criteria.  (1T5-18 to 19, 16-18 to 21)  The court found aggravating factors three, six and nine and no mitigating factors and imposed an aggregate sentence of thirty years with twenty-two years of parole ineligibility.  (1T15-10 to 18)  On Indictment [...], the court sentenced [...] on count one (first-degree robbery) to twenty years with seventeen years parole ineligibility pursuant to the No Early Release Act.  (1T17-15 to 19)  The court merged counts two (aggravated assault by pointing a firearm) and four (possession of a firearm for an unlawful purpose) with count one and imposed a concurrent ten-year term on count three (possession of a handgun without a permit).  (1T17-24 to 18-13)  On count one of Indictment [...] (second-degree certain persons not to possess firearms), the court imposed a ten-year term with five years of parole ineligibility to run consecutive to the twenty-year NERA term.
[brief] DEFENDANT'S SENTENCE MUST BE REVERSED BECAUSE IT WAS THE RESULT OF MULTIPLE LEGAL AND FACTUAL ERRORS AND BECAUSE IT WAS EXCESSIVE (33T32-24 TO 33T39-8)...........................................43  TABLE OF CONTENTS  (CONT'D.)  1.  Defendant's Sentence Must Be Reversed Because The Court Failed To Provide A Reasoned Explanation For Finding Multiple Contradictory Aggravating And Mitigating Factors And Because Those Findings Were Not Supported By Sufficient, Competent Credible Evidence In The Record.  .................................................................45  2.  Defendant's 40-Year Sentence As An Accomplice To Felony Murder Was Grossly Excessive, Given His Lack Of Prior Felony Convictions, The Jury's Acquittals On The Own-Conduct Robbery And Murder Charges, And The Co-Defendant's 13-Year Sentence For Aggravated Manslaughter......................48  CONCLUSION .............................................................................................................50
[brief] While [...] is discussed in detail in the Argument portion of this brief, the basics of its holding are necessary to provide context for the factual discussion here.  The [...] court held that Massachusetts law requires pro-rata, time-on-the-risk allocation of damages resulting from progressive indivisible environmental contamination.  In rendering this ruling, the Supreme Judicial Court expressly rejected all other allocation methodologies, except for limited circumstances where a “fact-based” allocation would be feasible.  The [...] court defined what a “fact-based” analysis would be:  We do not foreclose the possibility that in some cases the facts may permit a more accurate estimation of how much property damage took place in each period.  If the evidence permits an accurate estimation of the quantum of property damage in each policy period then proration by time on the risk may be inappropriate.  The situations in which fact-based allocation is appropriate are limited to those where the insured can establish, with accuracy, the amount of property damage that “in fact” took place during each policy period.
[brief] Relying on language from the NRC report, the requested instruction informed the jury that:  - “[T]he analyst employing the ACE-V method ‘must make subjective assessments throughout’ the process. ”  (Da 198) (quoting the NRC Report at 142).  - “You should be aware that, regardless of what preconceptions you may have about the infallibility of fingerprinting, latent print identification is not infallible, as ‘errors can occur with any judgment-based method. ’”  (Da 198) (quoting the NRC Report at 87, 143).  - “Even if all human fingerprint patterns are unique, ‘uniqueness does not guarantee that prints from two different people are always sufficiently different that they cannot be confused, or that two impressions made by the same finger will also be sufficiently similar to be discerned as coming from the same source.’” (Da 198) (quoting the NRC Report at 177).  The trial court did not give this instruction nor any kind of instruction to the jury about how to consider the fingerprint evidence.  The failure to give any kind of instruction to guide the jury’s consideration of the reliability of this critical evidence requires reversal of [...]’s convictions.