ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] (15T33-13 to 15).  She concluded that there are “always folks who are going to make decisions about whether or not they want to engage” in the distribution or the possession of CDS with the intent to distribute.  “And so, the circumstances that exist in this case are clearly circumstances that have the ability to reoccur time and time again.  Ultimately,” defendant would have to decide for himself whether he wanted to be a part of illegal drug trafficking.  (15T33-15 to 20).  Despite finding a risk of defendant reoffending, the trial court gave him the benefit of mitigating factor 9 in that the defendant’s “character and attitude” indicated that he was “unlikely to commit another offense. ”  N.J.S.A. 2C:44-1(b)(9).  Defendant admitted at sentencing that he lacked judgment at the time of his crime and that he was taking full responsibility for his crime; he had opened two new businesses ([...] and a package delivery service) with the help of his family; and he was “ready to live back out in society as an honest member of society, which [he had] done for the past six years. ”).  (15T14-14 to 16-23).  While [...] afforded defendant mitigating factor 9, she noted that defendant had victimized the very community that had submitted several letters of support to the court on his behalf.  (15T35-11 to 36-2).  [...] rejected defendant's request that the court find non-statutory mitigating factors that he had been offense-free and had done positive things while he awaited trial.  The judge found that while it was a “good thing to remain offense-free,” society expects defendants to remain offense-free.  (15T30-23 to 30-1).
[brief] Although the verdict sheet contained a lesser-included offense of criminal trespass, the jury was unable to record a verdict of guilty to the lesser-included offense of third-degree burglary because the verdict sheet omitted any such option.  The judge charged the jury that “[i]n this case the State alleges that defendant was armed with or displayed what appears to be a deadly weapon. ”  He omitted to then read  In order for defendant to be guilty of being “armed with” ... a deadly weapon, however, the State must prove not only possession but also immediate access to that ... deadly weapon.  The State must prove beyond a reasonable doubt that the weapon was easily accessible and readily available for use during the burglary.  [Model Jury Charge (Criminal), “Burglary in the Second Degree” (2010). ]  Similarly, the judge charged the jury,  If you find beyond a reasonable doubt that the defendant committed the crime of burglary or in the course of committing that offense he ... recklessly inflicted or purposely intended to inflict or threatened to inflict bodily injury upon the victim, ... then you must find the defendant guilty of burglary in the second degree.  He did not define “recklessly. ”  Finally, the judge charged the jury that “burglary becomes a crime of the second-degree if the burglar ... attempts to inflict or threatens to inflict bodily injury....”  He omitted to read, however, the definition of “attempt,” which is “[a] person is guilty of an attempt to inflict bodily injury if (he/she) purposely commits an act which constitutes a substantial step toward the commission of the infliction of bodily injury. ”  *Model Jury Charge (Criminal)*, “Burglary in the Second Degree” (2010).  “[T]he failure to charge the jury on an element of an offense is presumed to be prejudicial error, even in the absence of a request by defense counsel. ”  *Federico*, supra, 103 N.J. at 176, 510 A.2d 1147.  III
[brief] A.  The Agree-Upon and Memorialized Settlement is Valid and Binding on the Parties ..............................................19  B.  Defendant’s “Change of Heart” is Insufficient to Repudiate the Memorialized Settlement  ..................................25  POINT II  THE TRIAL COURT ERRED FINDING THE OLDER WORKERS  BENEFIT PROTECTION ACT PERMITTED  DEFENDANT TO REPUDIATE THE AGREED-UPON AND MEMORIALIZED SETTLEMENT (2T18:22-20:14)  .........................................................28  CONCLUSION .........................................................................................................................................................34
[brief] ”  (Pa 6; 1T 9-11 to 10-23; 1T 11-11 to 11-16)  The CI, who claimed to have purchased CDS from [...] in the past, told the detectives that [...] was part owner of a restaurant called [...] in [...], drove a 2015 black Audi with New York plates, and uses the Audi to obtain CDS from a source in New York City.  (Pa 7; 1T 9-24 to 10-23)  The CI, however, did not say where in New York City [...]’ supplier was located, how often [...] visited the supplier, what day of the week [...] visited the supplier, what time of day [...] visited the supplier, or where in his car [...] stored CDS.  (Pa 7; 1T 45-16 to 46-16)  Based on the information provided by the CI, the detectives began surveilling [...] at his restaurant.
[brief] 24T – Mar. 11, 2020, vol. 1 (trial)  25T – Mar. 11, 2020, vol. 2 (trial)  26T – Mar. 12, 2020 (trial)  27T – Mar. 17, 2020, vol. 1 (trial)  28T – Mar. 17, 2020, vol. 2 (trial)  29T – Mar. 18, 2020, vol. 1 (trial)  30T – Mar. 18, 2020, vol. 2 (trial)  31T – Mar. 19, 2020, vol. 1 (trial)  32T – Mar. 19, 2020, vol. 2 (trial)  33T – Mar. 23, 2020 (adjournment)
[brief] The trial court further failed to properly consider, or consider at all, the fact that Appellant did not even sign the Arbitration Agreement itself.  Instead, the only indication of Appellant’s alleged “agreement” to arbitrate any claims she had against Respondents is a computer-generated statement of acknowledgement which required virtually no affirmative action by Appellant.  See id.  Unlike in Riddell, Appellant had absolutely no opportunity to independently review the Arbitration Agreement or ask questions about same, nor did anyone put Appellant on notice that she should carefully review these policies because they are, in fact, agreements that restrict her rights.  For these reasons, the present case is readily distinguishable from New Jersey cases where courts have enforced arbitration provisions with respect to discrimination claims.
[brief] This is simply not the case.  The Commission has held that parties have “a mutual obligation to seek agreement on [negotiations] ground rules. ”  Phillipsburg Bd. of Ed., P.E.R.C. No. 83-34, 8 NJPER 569 (¶13262 1982), recon. den. P.E.R.C. No. 83-67, 9 NJPER 23 (¶14011 1982).  PERC’s Order specifically directs the Board to negotiate over ground rules pertaining to the [...], in light of the [...]’s certified willingness to discuss “a ground rule to limit how many members of the [...] could attend a negotiations session or limit how many sessions the [...] could attend. ”  50 NJPER 226, 229 (¶50 2023) (Pa227).  PERC’s Order does not dictate the terms or outcome of those negotiations.  The Board next argues that PERC could or should have ordered the parties to declare an impasse and request the appointment of a PERC mediator if they could not agree on a ground rule.  The Commission notes that the Board did not raise this issue below.  Issues not raised below will ordinarily not be considered on appeal unless they are jurisdictional in nature or substantially implicate public interest, and neither exception applies here.  See, e.g., State v. Vincenty, 237 N.J. 122, 135 (2019); County of Essex v. First Union, 186 N.J. 46, 51 (2006); Brock v. Public Service Electric & Gas Co., 149 N.J. 378, 391 (1997).  Regardless, even if the Board had properly raised this issue to the Commission, it would not change the result.  First, the Commission cannot compel parties to declare an impasse.  That must be done by the parties, either individually or jointly.  N.J.A.C. 19:12-3.1(a).  Second, in Phillipsburg Bd. of Ed., supra, the Commission held that “a party may not insist until impasse on a particular ground rule for substantive contract negotiations. ”  In denying reconsideration of that decision, the Commission further held that a party’s “insistence until impasse on . . . a [ground rule] proposal would warrant finding a per se violation” of the Act’s requirement that parties negotiate in good faith.  Id.  In other words, doing so is an unfair labor practice unsuitable for resolution through impasse proceedings.  Here, the Board’s argument presupposes that, prior to substantive negotiations over a successor to the parties’ 2019-2022 CNA, each party’s insistence on conflicting ground rules (pertaining to the [...]) resulted in impasse.  But if, under Phillipsburg, parties may not do that without violating the Act, it is questionable whether PERC could have reasonably ordered (or condoned) such a result.  In any case, the proper forum for deciding alleged violations of a party’s duty to negotiate in good faith is an unfair practice proceeding, as occurred here.  As such, the Board’s newly-raised contention is devoid of merit.  III.
[brief] 9.  On or about February 1, 2020, plaintiff asked [...] if she could call her attorney, which plaintiff alleges that she was denied the opportunity to call her counsel.  (Pa001, pg4, ¶12).  10.  On February 2, 2020, plaintiff alleges that she again asked if she could call her attorney to which [...] informed the plaintiff that she could call his office phone and not a cell phone number.  (Pa001, pg4, ¶13).  11.  On February 7, 2020, inmate [...] told MCC for corrections officers that quote she felt like murdering someone and that he, [...], was a fucking asshole. ” (Pa001, pg5, ¶15).  12.
[brief] The First Circuit’s decision in *Peabody Essex Museum, Inc. v. U.S. Fire Ins. Co.*, 802 F.3d 39 (1st Cir. 2015), another case relied on by [...], is even more distinguishable than *Maestranzi*.  In *Peabody*, “fact-based” allocation was only applied because the insurance carrier was subject to a unique burden shifting procedure under Massachusetts law.  *Peabody*, 802 F.3d at 43 (“[A]n insurer that wrongfully declines to defend a claim [must bear] the burden of proving that the claim was not within its policy's coverage. ”) (citing *Polaroid Corp. v. Travelers Indem. Co.*, 414 Mass. 747, 610 N.E.2d 912, 922 at n. 22 (1993)).  This burden shifting procedure was the sole basis cited by the First Circuit in affirming fact-based allocation.  In fact, the First Circuit referred to the fact-based allocation chosen in *Peabody* as “make believe,” but nonetheless affirmed the trial court’s judgment based solely on its holding that fact-based allocation maximized the carrier’s “indemnity exposure in line with its burden under *Polaroid*”.  *Peabody*, 802 F.3d at 51.  There is no *Polaroid* burden shifting procedure in this case.  In fact, there is not even a denial of coverage.  (Pa0368-Pa0379).  This case is not comparable to the facts in *Maestranzi* or the burden shifting procedure at issue in *Peabody*.
[brief] LEGAL ARGUMENT ..........................................................................................................1  I.  THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN GRANTING THE FORCED SALE OF THE SUBJECT PROPERTY  BECAUSE IT WAS CONTRARY TO THE APRIL 13, 2022  CONSENT JUDGMENT (Da1)  .......................1  II.  THE TRIAL COURT FAILED TO CONSIDER AND ENFORCE THE BINDING TERMS OF THE CONSENT JUDGMENT WHICH THE CO-OWNERS AGREED TO ON APRIL 13, 2022 (Da1, Da4)  ..................................................................................................................4  III.
[brief] PROCEDURAL HISTORY  The procedural history of this case is straightforward.  Plaintiff filed a complaint on September 15, 2023.  (Pa 6)  The complaint seeks payment for an open book account balance on account of retainage for a generator sale.  The amount claimed is $198,066.38.  (Pa 10)  Defendant was timely served and retained counsel.  A stipulation extending time to answer was filed October 24, 2023.  (Pa 12)  Defendant filed a motion to dismiss in lieu of an answer on November 3, 2023.  (Pa 13)  The motion was scheduled for hearing on December 1, 2023.  Defendant requested an adjournment to December 15th which the court accommodated.  (Pa 84)  Plaintiff opposed the motion on December 5, 2023 (Pa 53)  The opposition included a detailed certification of Plaintiff's Executive Vice President for Power Systems.  (Pa 53-81)  Defendant filed a reply brief on December 11, 2023.  The court, on its own motion, adjourned the hearing on multiple occasions to January 5 and 19, February 2 and 15, March 1, April 12 and 26, May 10 and 24, 2024 (Pa 103 and 104).  On May 24, 2024 (posted May 28, 2024) the Law Division filed an order dismissing Plaintiff's case and awarding Defendant's attorney unspecified fees.  (Pa 1)  The Law Division did not entertain argument nor did the court make findings of facts or conclusions of law.  (Pa 1)  On June 3, 2024
[brief] In *Metromedia*, our Supreme Court provided guidance on when a particular agency action should be considered de facto rulemaking.  “Th[is] guidance is important because informal agency action that is de facto rulemaking will be voided for failing to comply with the APA rulemaking procedures. ”  Besler & Co. v. Bradley, 361 N.J. Super. 168, 171 (App. Div. 2003).  Agency action may constitute rulemaking regardless of the label the agency gives it.  Metromedia, 97 N.J. at 331-32 (emphasis added).  Agency action will be considered rulemaking when it: (1) is intended to have wide coverage encompassing a large segment of the regulated or general public, rather than an individual or a narrow select group; (2) is intended to be applied generally and uniformly to all similarly situated persons; (3) is designed to operate only in future cases, that is, prospectively; (4) prescribes a legal standard or directive that is not otherwise expressly provided by or clearly and obviously inferable from the enabling statutory authorization; (5) reflects an administrative policy that (i) was not previously expressed in any official and explicit agency determination, adjudication or rule, or (ii) constitutes a material and significant change from a clear, past agency position on the identical subject matter; and (6) reflects a decision on administrative regulatory policy in the nature of the interpretation of law or general policy.
[brief] On April 8, 2019, Plaintiff Had Constitutional, Statutory and Common Law Standing to Seek Compensatory Damages, Injunctive and Declaratory Relief.  On November 2, 2023, plaintiff filed his forty-nine pages appellate merits brief.  Thereafter, the United States Supreme Court and the Third Circuit issued opinions supporting plaintiff’s constitutional, statutory and common law standing in this hybrid prerogative writ/declaratory judgment/civil rights violations action.  On November 7, 2023, the Third Circuit reversed, in part, the trial court’s lack of federal standing dismissal of an amended complaint seeking damages, injunctive and declaratory relief.  [...] v. [...], ___ F4th ___ (3d Cir. Nov. 6, 2023).  The Third Circuit restored plaintiff’s rights to pursue monetary damages against a union.  The Third Circuit noted: “The standing inquiry remains focused on whether the party invoking jurisdiction held the requisite stake in the outcome when the suit was filed. ” (slip op. at p.14).  The Third Circuit analyzed separately each claim, count and requested relief.  On December 5, 2023, our United States Supreme Court dismissed on mootness grounds a split of circuit matter involving whether a serial Americans with Disabilities Act violations test case plaintiff had standing to sue in federal court to enforce the accessibility law rather than to remedy her own harms.
[brief] See also Eichenbaum & Stylianou, LLC v. Osaedebiri, 2013 WL 4104105, at *1 (N.J. Super. Ct. App. Div. Aug. 15, 2013) (“We have before us only the statements made in defendant’s brief which are outside the record.  As such, we cannot adequately review[.]”).  The same is true for [...]’s footnote reference to a May 28, 2024 excavation of asphalt millings that is also dehors the record and ineligible for consideration.  [Db8, fn 2].  Additionally, two of [...]’s central contentions materially mischaracterize the record and therefore require correction.
[brief] Defendant [...] has denied plaintiffs the benefit of $1,000,000 in UIM coverage that plaintiffs purchased based upon a definitional exclusion contained, not within the [...] excess policy, but within the underlying automobile insurance policy issued by [...].  [...] claims that the language from that policy applies to [...]’s excess UIM coverage.  Plaintiffs do not contest the validity of the definitional exclusion as it applies to [...].  However, the invocation of the definitional exclusion through the follow form language creates a significant ambiguity when applied to the facts of the current matter such that [...] should be precluded from denying coverage based upon same.  It is fundamental that any ambiguities in policies of insurance are to be construed in favor of the insured.  See Gibson v. Callaghan, 158 N.J. 662, 670 (1999).  Courts should consider whether use of “more precise language” in drafting of the insurance agreement would have removed all doubt as to the meaning of certain language.  Ibid.  As noted in Point I, supra, insurance policies are not traditional contracts entered into between parties with equal bargaining power, equal expertise, and equal specialized knowledge.  Insurance policies are contracts of adhesion.  See, e.g., Progressive Cas. Ins. Co. v. Hurley, supra, 166 N.J. at 272 (2001).  Insurance carriers are experts in drafting insurance agreements and those agreements are unilaterally prepared for layperson consumers.  See Allen, supra, 44 N.J. at 305.  Our courts have acknowledged that even the most astute consumer is disadvantaged by the complex terminology used in insurance agreements to the point where very often these agreements are not typically reviewed by the insured-consumer.  See Bromfeld, supra, 298 N.J. Super. at 75.  Moreover, even when reviewed in detail, even the most knowledgeable and learned insured “must find his or her bargaining power is necessarily limited. ”  Ibid.  The onus is placed, therefore, upon the insurer to make absolutely clear the terms, conditions, and exclusions in an insurance policy.  See, e.g., Progressive Cas. Ins. Co. v. Hurley, 166 N.J. 260, 274 (2001) (“When construing an ambiguous clause in an insurance policy, courts should consider whether clearer draftsmanship by the insurer would have put the matter beyond reasonable question. ”); Kook v. American Sur. Co., 88 N.J. Super. 43, 51 (App. Div.1965) ("[C]onsideration should be given [about] whether alternative or more precise language, if used, would have put the matter beyond reasonable question.").  Courts are bound to construe policy terms in favor of the insured and “to the end that coverage is afforded ‘to the full extent that any fair interpretation will allow. ’”  Kievit v. Loyal Protective Life Ins. Co., 34 N.J. 475, 482 (1961) (quoting Danek v. Hommer, 28 N.J.Super. 68, 76 (App. Div.1953), aff’d, 15 N.J. 573 (1954)).  And when the language of a policy term or exclusion “supports two meanings, one favorable to the insurer and the other to the insured, the interpretation favoring coverage should be applied. ”
[brief] Prior to his untimely demise, [...] employed [...] as a maintenance worker.  [...] is a wholesale distributor of various alcoholic beverages and soft drinks operating at a commercial property located at [...] (the “Property”).  [...]R2 is a Limited Liability Company formed on August 22, 2016, and was the owner of the Property at the time of [...]’s death (Pa0034-43).  [...]R2 obtained its ownership interest in the Property on December 24, 2016.  (Pa0035-0043).  However, [...] purported to enter into a lease agreement with [...]R2 for exclusive use of the Property on or about September 1, 2016.  (Pa0001-0033).  Accordingly, [...] and [...]R2 executed the 2016 Lease more than three months before [...]R2 acquired any ownership interest in the Property.
[brief] [...] had a total disc replacement at two levels.  (2T12-16).  [...]’ own diagnosis of [...] included “aggravations,” “pre-existing” injuries, “age-related degenerative disc disease,” and “osteoarthritis. ” (2T17-19).  Having an “aggravation,” having “pre-existing” injuries to the same part of the body, having “age-related degenerative disc disease” and/or having “osteoarthritis” were not, and are not, automatic disqualifiers for getting an ADR.  (2T19-22).  Per [...], [...]’s prior workers’ compensation injuries of 2000 and 2004, even though they involved his neck and MRI studies showed both bulges and herniations, did not disqualify him from getting an ADR.  (2T20-22).  [...] found both 2000 and 2004 “remote” when dealing with the accident of October 17, 2015.  (2T22).  [...] found [...] being asymptomatic from his return to work after the 2004 incident until October 17, 2015, to be significant.  (2T22-23).  Per [...], [...] had a difference in disc pathology following the accident of October 17, 2015.  (2T23-24).  [...]’ own diagnosis of [...] that included “aggravations,” “pre-existing” injuries, “age-related degenerative disc disease,” and “osteoarthritis” did nothing to change the opinion he gave [...] on causation.  (2T25-26).  In the absence of continuing medical treatment for which there was none, the concepts of “aggravations,” “pre-existing” injuries, “age-related degenerative disc disease,” and “osteoarthritis” would make no difference to any of the responses [...] provided in either his report or testimony to [...].  (2T26-28).  All opinions [...] provided to [...] were to a reasonable degree of medical probability and certainty in his field of expertise, i.e., orthopedics.  (2T28).  Respondent's Expert [...] was an orthopedic surgeon.
[brief] Before filing suit, Relator gave the State neither the former employee statements\(^{11}\) nor the analysis of VRDO transactions that purportedly supports its allegations.  Ja2148 (\(\S\) 84), Ja2150–51 (\(\S\S\) 86–87).  Therefore, the court cannot consider either with respect to the original source analysis.  N.J.S.A. § 2A:32C-9(c); *Rahimi*, 3 F.4th at 830.  \(^{11}\)  Moreover, Relator scoffs at this court’s statement that such “statements from third parties” constitute “indirect knowledge” that cannot make a relator an original source, *Brennan ex rel. State v. Lonegan*, 454 N.J. Super. 613, 619 (App. Div. 2018), but Relator offers no other way to read *Brennan*.