ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] BRIEF OF APPELLANT  [...] (051242013)  [...] (016792012)  [...] (403672022)  [...]  [...]  [...]  [...] [...] (p) [...] (f)  [...]  [...]  [...]  Attorneys for Appellant, [...] Of Counsel and On the Brief: [...] (051242013)  [...] (016792012)  [...] (403672022)
[brief] 18 - **Arnold v. United Companies Lending Corp.**, 204 W. Va. 229, 511 S.E.2d 854 (1998), overruled in part by Dan Ryan Builders, Inc. v. Nelson, 230 W. Va. 281, 737 S.E.2d 550 (2012)  .....................  16 - **Atalese v. U.S. Legal Servs. Grp., L.P.**, 219 N.J. 430 (2014)  ..............................................  5 - **Baldyga v. Oldman**, 261 N.J.Super. 259 (App.Div.1993) ..........................  26 Moore v. Woman To Woman Obstetrics & Gynecology, L.L.C., 416 N.J. Super. 30 (App. Div. 2010) ...................... 26 New Jersey Div. of Youth & Fam. Servs. v. M.C. III, 201 N.J. 328 (2010) ...........................................
[brief] N.J. S.A. 40A:9-22.2 33 N.J.S.A. 40A:9-22.5(d) 33 Rules of Professional Responsibility RPC 3.3 34 RPC 4.2 10 Court Rules Rule 1:1-2 24 Rule 1:4-8 24,38 Rule 1:6-5 24 Rule 1:6-6 24 Rule 1:7-4 24 Rule 1:13-1 24 Rule 4:5-3 24,38  Rule 4:9-2, -3, -4 24 Rule 4:46-2 4,39  Rule 4:49-2 24
[brief] ”  State v. Murray, 240 N.J. Super. 378, 392 (App. Div. 1990).  See also State v. O’Brien, 377 N.J. Super. 389, 414 (App. Div. 2004), aff’d in part relevant part, 183 N.J. 376 (2005) (approving of a judge asking in voir dire whether “they could ‘accept the concept that psychiatry is a credible medical science’”).  The failure to probe whether jurors already believed that fingerprint analysis was infallible or could consider evidence to the contrary requires reversal.
[brief] \(^1\) (Da 241)  [...] also moved to stay [...]’s return to his position.  [...] denied this request (Da 346) but the Appellate Division reversed this ruling.  This decision to grant the stay essentially removed [...] from office because [...] never again sat as a commissioner prior his term expiring.  On July 10, 2023, (nearly two years after the motion judge granted summary judgment to [...]) the Appellate Division issued an opinion reversing summary judgment\(^2\) (Da347), remanding the matter to the motion judge to determine the issue of “whether an appointed public official's private conduct can constitute misconduct in office under N.J.S.A. 40:14A-5(c). ”  (Da 357-58)  [...] considered further briefing and oral argument, then granted [...] summary judgment and denied summary judgment to [...] again.  [...] found that the allegations made by [...] against [...] could not establish grounds for removal under the statute because the allegations were clearly of “private conduct” and not “misconduct in office. ”  [...] --- \(^1\)  The summary judgment granted to [...] is a final order appealable as of right by [...].  Rule 2:2-3.  However, the denial of summary judgment to [...] is an interlocutory order and cannot be appealed without leave granted.  Rule 2:2-4.  \(^2\)  Although the Borough’s Resolution cites only a local ordinance as the basis for terminating [...] – and not the statute - the panel chalked this up to an “apparent drafting error” despite an absence of any indication in the record.
[brief] ”).  If defendant had problems with plaintiff's discovery it should have raised them, which it continually did.  Defendant's problems with plaintiff's discovery do not justify or excuse its late document production.  Another reason defendant gives for not producing the [...] reports earlier is the fact that the reports were not physically located in plaintiff's personnel file.  This is another unacceptable excuse.  Defendant could have and should have produced all documents regarding plaintiff's work performance, no matter where they were physically located.  The [...] reports and critiques are plainly relevant to important issues in the case, including but not limited to plaintiff' retaliation claim.15  Again, the Court would be flabbergasted if plaintiff did not rightfully assume that all documents critiquing his work performance would be produced, even if the documents were not physically present in plaintiff's personnel file.
[brief] 42  Table of Orders and Rulings Being Appealed Per Rule 2:6-2(a)(2)  Transcript of Trial Court’s Decision (5/3/23)  ..............................................  2T Order (5/3/23).................................................................................................. Pa22  ## Table of Authorities ### Cases - **Allen v. Metropolitan Life Ins. Co.**, 44 N.J. 294 (1965) .......... 13, 14, 28, 29, 37 - **Badiali v. New Jersey Mfrs. Ins. Group**, 220 N.J. 544 (2015) ...................... 26 - **Bromfeld v. Harleysville Ins. Companies**, 298 N.J. Super. 62 (App. Div. 1997) ................................................................. 12, 28, 34, 35, 37 - **Caviglia v. Royal Tours of Am.**, 178 N.J. 460 (2004) ...........................................
[brief] *Id.* at 387.  The New Jersey Supreme Court has frequently “admonished trial courts ‘not [to] accept passively’ the submissions of counsel” to support the lodestar amount.  *Walker v. Giuffre*, 209 N.J. 124, 132 (2012) (quoting *Rendine* 141 N.J. at 335); See *Yueh v. Yueh*, 329 N.J. Super. 447, 468 (App. Div. 2000) (rejecting a trial court’s “unquestioning acceptance of all plaintiff’s requested attorney’s fees”).  Rather, the Court must conduct a “*critical analysis.*”  *Id.* at 467 (emphasis added).  In so doing, the Court must exclude hours that are not reasonably expended if “excessive, redundant, or otherwise unnecessary. ”  *Rendine* 141 N.J. at 335 (quoting *Rode v. Dellarciprete*, 892 F.2d 1177, 1183 (3d Cir. 1990)).  A further reduction is called upon “if the level of success achieved … is limited as compared to the relief that is sought.
[brief] See N.J.S.A. 2B:20-10(c); *Williams*, 171 N.J. at 165 (quoting [...], *What is Wrong With American Juries and How to Fix it*, 20 Harv. J. L. & Pub. Pol’y 483, 486-87 (1997)).  Even assuming the financial hardship of jury service was the motivating factor behind some of the juror exclusions resulting from the judge’s question regarding availability on scheduled trial dates, a finding of discriminatory exclusion of a constitutionally-protected group still could not be found here.  In excluding jurors who stated they were unavailable for the scheduled trial dates, [...] was acting in accord with the direction of our Supreme Court, which has empowered trial courts with the “discretion to excuse a juror on the basis of financial hardship” and to do so liberally when the issue of the “[f]inancial hardship associated with jury duty” is addressed when it is “best” to do so: “before the jury is sworn.
[brief] PROPERLY ENFORCED THE PARTIES AGREEMENT AS WRITTEN (Raised below at IT16:13-16, IT17:6-21, IT18:12 to IT20:21, IT 22:6-25, IT19:12-23, IT 22:6-25, and Da199-Da200)  Initially, since the Trial Court found that Appellant breached the Separation Agreement (Da202, then the issue of specific performance thereafter follows, as required by Totaro:  “Performance makes the non-breaching party whole by requiring the breaching party to fulfill his or her obligation under the agreement.  See id. at 444, 453 A.2d 160.  Totaro, Duffy, Cannova and Co., L.L.C. v. Lane, Middleton & Co., L.L.C., 191 N.J. 1, 13 Appellant’s argument at Db 24 that the Trial Court failed to review the within matter for specific performance under [...] fails, as the Appellant argued [...] in his moving papers below\(^7\).
[brief] See, e.g., Dep’t of Labor v. Titan Constr., 102 N.J. 1, 13 (1985); Crema v. NJDEP, 94 N.J. 286, 299 (1983) (“This Court has recognized the need . . . of rulemaking for establishing administrative law[.]”) (emphasis added); id. at 299–301; Boller Beverages, Inc. v. Davis, 38 N.J. 138, 151–55 (1962).  For instance, the Supreme Court has emphasized the need to have “administrative officers articulate the standards and principles that govern their discretionary decisions in as much detail as possible,” adding that “an agency determination that changes existing law and has widespread application must be addressed by rulemaking and not adjudication. ”  Crema, 94 N.J. at 301 (cleaned up).  Similarly, an agency with “boundless [discretion] under the statute” must adopt “regulations containing standards to guide” its determinations and “assure the faithful execution of the legislative mandate. ”  Matter of Farmers’ Mut. Fire Assur. Ass’n of N.J., 256 N.J. Super. 607, 621 (App. Div. 1992) (quoting Holmdel Builders Ass’n v. Township of Holmdel, 121 N.J. 550, 578 (1990)).  Indeed, the Supreme Court has long made clear that agency action is invalid absent prospective and “sufficiently definite regulations and standards,” because an “essential quality” of the administrative state is “fairly predictable decisions. ”  *Boller Beverages*, 38 N.J. at 152.
[directive] 12  Program 4  No of needs the law enforcement agency. funding entity shall anticipate or forfeitures proceeds therefrom in the adoption and approval of the budget for its law enforcement agency.  or Forfeiture funds may not be used for payment of regular salaries to create B. or in that new personnel positions, to pay dues fees an organization bar as a represents any interest other than a law enforcement interest, such of association, or to pay any expense imposed as a condition maintaining
[brief] [...] testified that he stopped the vehicle because the front windows were tinted, but he failed to provide sufficient testimony that it was the front tinted windows that inhibited his ability to clearly see inside the vehicle, which is the test for establishing reasonable suspicion of a tinted windows violation under N.J.S.A. 39:3-74.  Notably, the State chose not to present any photographs of the allegedly tinted windows, despite [...]’s testimony that such photographs existed.  (1T 46-2 to 9)  By strategically rejecting the opportunity to present critical evidence about the degree of tint, the State invited its own failure to meet its burden of proving an N.J.S.A. 39:3-74 violation, and must be bound by the consequences of its own strategy.
[brief] LEGAL ARGUMENT .................................................................................................1  POINT I  A MEDICAL EXAMINER CANNOT TESTIFY THAT THE MANNER OF DEATH WAS A HOMICIDE WHEN HIS OPINION ON THAT DISPUTED ISSUE IS NOT BASED ON APPLICATION OF HIS SCIENTIFIC KNOWLEDGE, BUT DEPENDS INSTEAD ON FACTS  WHOSE SIGNIFICANCE IS FOR THE JURY’S ULTIMATE DETERMINATION..................................................................................1  CONCLUSION ..............................................................................................................7
[brief] [...] found in his February 15, 2023 Opinion that plaintiff had abandoned at oral argument his claim that New Jersey had a six-year statute of limitations for malicious prosecution claims and advanced instead a continuing violation theory.  (Aa79; Aa99-100).  [...] was correct.  [T]he Federal Court held that the plaintiff’s allegations were ... malicious prosecution related claims and they were untimely as of March 6th, 2020 ....  ***  [Plaintiff’s moving papers] point to two very old cases, Cabakov [v.] Thatcher, 27 N.J. Super. 404, 409 (App. Div. 1953) and Earl [v.] Winne, 14 N.J. 119, 132 (1953) for the proposition that there’s a six-year statute of limitations.  That’s clearly not correct given the clear findings of N.J.S.A. 2A:14-2.  At oral argument, the plaintiff abandoned that argument and advanced the continuing violation theory, continuing tort theory, pointing to the fact that the actions of the State with regard to the amended judgment of conviction were a continuing effort to maliciously prosecute the plaintiff.  Id.  Plaintiff’s malicious prosecution argument has been waived.
[brief] (Aa013-014).  Further, the Commission also noted that the [...] had stated that if it had not bypassed [...], it would have removed her.  (Aa013).  The Commission also noted that it has the authority to remove candidates from an eligible list *sua sponte*.  (Aa014); see N.J.A.C. 4A:4-4.7(a).  Regarding [...]’s claims that her disciplinary history was insufficient to remove her name, the Commission reasoned [...]’s reliance on a Collective Negotiations Agreement (CNA) that required the removal of counseling and written reprimands from her personnel file was misplaced, given the Commission was not a party to the CNA and that consideration of [...]’s full record was in the public interest.  *Ibid.*  Having reviewed the merits briefs filed by the primary parties, the Commission has determined that the factual and legal issues involved in this appeal do not warrant the filing of a separate brief.
[brief] The Discovery Is Not Duplicative.**  [...] states that “any conceivable testimony is duplicative of discovery already conducted in the underlying litigation. ”  Ab11.  [...] does not identify which testimony he is referring to or which deposition he is referring to in the Underlying Action.  If [...] knows of the testimony, he should file it.  And, if [...]’s testimony will be “duplicative” of discovery already being conducted, how can he, at the same time, maintain that his testimony is not relevant if others are being examined on the identical issues?  [...] further states: “there is no conceivable testimony that could be given by [...] that is not already known to [...], either due to his personal knowledge or obtained during discovery in the other litigations. ”  Ab10-11.  [...] once again does not identify what “conceivable testimony” he has in mind, what it is that is “known,” and what other discovery he is referencing.  [...]’s position -- that if a party has personal knowledge of a fact, then no other witnesses can testify about those facts -- would undo the Court Rules, which permit a party to issue a third party subpoena of a witness.  R. 1:9-1 (“A subpoena may be issued…and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein. ”).  C.
[directive] A reasonable belief is an objective assessment based upon an evaluation of how a reasonable officer with comparable training and experience would react to, or draw inferences from, the facts and circumstances confronting and known by the officer at the scene.  Serious Bodily Injury.  Serious bodily injury means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.  Serious bodily injury and serious bodily harm have the same definition the purposes of this Policy.
[brief] *Id.* at 527.  The role of a reviewing court “is to defer to the local land-use agency’s broad discretion and to reverse only if we find its decision to be arbitrary, capricious or unreasonable. ”  *Id.* at 529.  “Thus, the question is not whether a reviewing court would have reached a different conclusion if it had initially decided the matter … but whether the Planning Board was arbitrary, capricious, or unreasonable” in reaching its decision to apply the doctrine of res judicata to the second application.  *Id.* at 527.  The *Bressman* court went on to state the rationale behind this doctrine.
[brief] The [...] is a state regulatory agency within the [...] within [...].  The Council consists of eleven members “chosen with due regard to [their] knowledge of and interest in the conservation of fish and game[,]” each of whom are appointed by the Governor ¹  Because they are closely related, these sections are combined for efficiency and the court’s convenience. with the advice and consent of the Senate.  N.J.S.A. 13:1B-24.  Three of the eleven members are farmers recommended by the [...] for appointment by the Governor; six are sportsmen recommended by the [...] (“[...]”) for appointment by the Governor; one is the chairman of the [...] (“[...]”); and the final member is a person knowledgeable in land use management and soil conservation practices.  Ibid.  There is no requirement that the farmers or sportsmen recommended for appointment be members of the [...] or the [...].  Ibid.  The Governor may remove individuals from the Council for cause once appointed.  N.J.S.A. 13:1B-26.  By statute, the Council is tasked with promulgating the State Fish and Game Code (“Game Code”) for the “purpose of providing an adequate and flexible system of protection, propagation, increase, control and conservation of fresh water fish, game birds, game animals, and fur-bearing animals in [New Jersey], and for their use and development for public recreation and food supply. ”  N.J.S.A. 13:1B-30; see also N.J.A.C. 7:25-5.1 to -5.39.  The Council also “formulat[es] comprehensive policies for the protection and propagation of fish, birds, and game animals and for the propagation and distribution of food fish and for the keeping up of the supply thereof. ”  N.J.S.A. 13:1B-28.  Those policies are “subject to the approval of the [[...]] commissioner. ”  Id.  In New Jersey, black bear hunts occur pursuant to the Game Code, in accordance with a duly promulgated Comprehensive Black Bear Management Plan (“CBBMP”).  N.J.A.C. 7:25-5.6(a).  A CBBMP is a “comprehensive polic[y],” N.J.S.A. 13:1B-28, that must be promulgated as an administrative rule.  N.J. Animal Rights Alliance v. N.J. Dep’t of Envtl. Prot., 396 N.J. Super. 358, 364, 370 (App. Div. 2007).  On September 6, 2023, the Council adopted the 2022 CBBMP as well as related Game Code amendments.²  55 N.J.R. 2056(a) (Oct. 2, 2023).  On September 21, 2023, the [...] and [...] (collectively “[...]”) filed a Verified Complaint for Declaratory and Injunctive Relief with an Order to Show Cause, challenging the constitutionality of the Council, and by virtue, the 2022 CBBMP and 2023 black bear hunt.
[brief] **The Standard For A Motion For Reconsideration(Pa13-20)**  Reconsideration is a matter “within the sound discretion of the Court to be exercised in the interest of justice. ”  *D’Atria v. D’Atria*, 242 N.J. Super. 392, 401 (Ch. Div. 1990).); see also *Cummings v. Bahr*, 295 N.J. Super. 374, 384 (App. Div. 1996).  The *D’Atria* Court warned, however, that “[a] litigant should not seek reconsideration merely because of dissatisfaction with a decision of the Court. ”  *D’Atria*, 242 N.J. Super. at 401.  The ultimate goal of a motion for reconsideration is “substantial justice. ”  *Bednarsh v. Bednarsh*, 282 N.J. Super. 482, 485 (Ch. Div. 1995).  Reconsideration should be used for those cases wherein the Court has expressed its decision based upon a (1) palpably incorrect or irrational basis or (2) where it is obvious that the Court either did not consider or failed to appreciate the significance of probative, competent evidence, or (3) there is good reason for the Court to reconsider new information.  *Fusco v. Board of Educ. of the City of Newark*, 349 N.J. Super. 455, 462, 793 A.2d 856 (App. Div. 2002); *Cummings v. Bahr*, 295 N.J. Super. at 384-385.  Further, R. 4:49-2 provides that a Motion for Reconsideration seeking to alter or amend a judgment must state the basis on which it is made, including a statement of the matters or a controlling decision which counsel believes the Court has overlooked or to which it has erred.  Herein, the Court failed to consider that there is a genuine question of fact that [...] caused the dangerous condition and instead based its decision incorrectly as to whether the [...] had actual or constructive notice.
[brief] The State may not admit against a defendant testimonial statements by a non-testifying witness unless (1) the witness is unavailable and (2) the defendant had a prior opportunity to cross-examine her.  Sims, 250 N.J. at 223.  Thus, “both the Confrontation Clause and the hearsay rule are violated when, at trial, a police officer conveys, directly or by inference, information from a non-testifying declarant to incriminate the defendant in the crime charged. ”  State v. Branch, 182 N.J. 338, 350-51 (2005) (“[A] police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant. ”); accord State v. Bankston, 63 N.J. 263, 268-71 (1973) (same).  In addition, even where hearsay is admitted, the opposing party is permitted through cross-examination to impeach the out-of-court declarant.  N.J.R. E. 806; accord [...], Current N.J. Rules of Evidence, cmt. on N.J.R.E. 806 (2023).  Indeed, a criminal defendant’s right to cross-examine the evidence against him and “test [its] reliability” is “at the very core of the right of confrontation. ”  State v. Cabbell, 207 N.J. 311, 328-29 (2011).  Thus, “the denial of effective cross-examination when it should have been allowed would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it. ”  State v. Higgs, 253 N.J. 333, 362 (2023); e.g., Cabbell, 207 N.J. at 330-39 (reversing convictions where court denied cross-examination on eyewitness identification); State v. Jackson, 243 N.J. 52, 69-74 (2020) (reversing conviction where court denied cross-examination on witness bias); State v. Bass, 224 N.J. 285, 305-11 (2016) (same).
[brief] Id. at 474.  (Pa96)  The Council is authorized to promulgate the detailed regulations and policies governing the bear hunt, and it is the Council, not the DEP or the DEP Commissioner, that has the authority to “adopt and from time to time amend and repeal” the regulations that make up the Code.  N.J.S.A. 13:1B-30.  In addition to formulating comprehensive policies for the protection and propagation of fish, birds, and game animals, N.J.S.A. 13:1B-28, the Council itself is responsible for promulgating the Code, N.J.S.A. 13:1B-30, the purpose of which is to ensure “an adequate and flexible system of protection, propagation, increase, control and conservation of freshwater fish, game birds, game animals and furbearing animals in this State, and for their use and development for public recreation and food supply. ”  Id.  Accordingly, the Council through the Code regulates: “under what circumstances, when and what localities, by what means and what amounts and numbers such freshwater, game birds and game animals, and fur-bearing animals, or any of them may be pursued, taken, killed or had in possession so as to maintain an adequate and proper supply thereof.
[brief] What’s more, withholding application of the entire controversy doctrine based on a litigant’s failure to avail himself of easily available evidence would frustrate the policies underlying the entire controversy doctrine because it would punish future defendants for an earlier plaintiff’s laziness.  As with res judicata and collateral estoppel, inattentive case preparation by an earlier plaintiff does not entitle a future plaintiff to a do-over.  Challenger argued below that [...] should exercise her discretion not to apply the entire controversy doctrine because [...] “engaged and litigated the case, served discovery, answered discovery, took depositions, and in all respects litigated the case through the close of discovery.
[brief] 12  STATUTES AND RULES  N.J.C.R. 2:6-1(a)(2) ...........................................................................  4 N.J.C.R. 2:2-3 ............................................  3, 6, 8, 11, 35 N.J.C.R. 4:46-2 ..............................................  32, 33  N.J.A.C. 1:1-12.5.................................................. 32 N.J.A.C. 1:1-18.6.................................................. 32  N.J.A.C. 6A:28-1.2 .................................................. 39 N.J.A.C. 6A:28-8. 3 .................................................. 36, 43 N.J.A.C. 6A:28-10.12 .................................................. 34 N.J.A.C. 6A:28-11.1 .................................................. 34 N.J.S.A. 18A:12-22 ........................................  1, 13, 22, 23, 24, 26, 27, 31, 34, 45, 46 N.J.S.A. 18A:12-24.1(a) ........................................  4, 36, 45 N.J.S.A. 18A:12-24.1(e) ..........................................  13, 23, 36, 37, 40 N.J.S.A. 18A:12-29 ...........................................  8, 34 New Jersey Executive Order 251 (2021).  ..........  5, 7, 43, 44, 45, 46, 47  PRELIMINARY STATEMENT