ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Similarly, as noted above, the New Jersey Supreme Court enforced an arbitration agreement in *Hojnowski*, despite the fact that the agreement was against public policy because it purported to waive a minor child’s claim.  *Hojnowski* at 346.  Likewise, in *Muhammad*, the New Jersey Supreme Court severed an arbitration clause, even though an illegal waiver of class arbitration was contained in the same arbitration provision.  See *Muhammad*, 189 N.J. at 26.  It is beyond dispute that Courts should avoid interpreting contracts in a manner that would render them illusory.  See *Bryant v. City of Atl. City*, 309 N.J. Super. 596, 621 (App. Div. 1998).  Arbitration provisions are separate and distinct from other portions of an agreement.  Courts have repeatedly held that an arbitration provision is severable from any illegal or unenforceable portion.  See *Buckeye Check Cashing, Inc. v. Cardegna*, 546 U.S. 440, 445 (2006).  Based on the above, even if the court found Paragraph 3 of the Arbitration Agreement to be unenforceable, the remedy is to sever the same rather than void the entire contract.
[brief] Notwithstanding this acknowledgment, the [...] nonetheless ordered the review and disclosure of what the [...] certified were approximately 45,000 text messages, an astronomical amount and what should be considered reversible error.  (Da27-28).  No case has held that a records request that failed to identify a subject matter or that encompassed text messages sent to or from any [...] commissioner, former commissioner, or any [...] employee for a period of two years and six months was valid.  [...]’s OPRA request “failed to identify with any specificity or particularity the governmental records sought,” and were instead “open-ended searches of an agency’s files,” which “OPRA does not countenance[.]”  MAG Entertainment, LLC v. Division of Alcoholic Beverage Control, 375 N.J. Super. 534, 549 (App. Div. 2005).  If a request for records “fails to specifically identify the documents sought, then the request is not ‘encompassed’ by OPRA and OPRA’s deadlines do not apply. ”
[brief] Essentially, plaintiffs argue that this defendant had a contractual obligation to have remedied the condition of the parking lot prior to [...]’s accident.  Plaintiffs overlook the fact that the lease agreement was and is a contract between [...] and [...].  Any obligations imposed upon [...] by the contract run from [...] to [...], not to plaintiffs.  There is no privity of contract between plaintiffs and [...].  Put another way, plaintiffs have no standing to assert breach of contract claims against this defendant.
[brief] Although Petitioner argues that the Board had no evidence of a quid pro quo arrangement, the Board specifically noted that through the Settlement Agreement, [...] avoided disciplinary charges and termination in exchange for his promise to retire (PA150).  Petitioner’s separation from employment was not solely due to his alleged disability and the underlying charges against him were not all related to his alleged disability.  This is evidenced by the fact that if for some reason his alleged disability vanished and he sought reemployment with [...], all disciplinary charges seeking his removal would be immediately reinstated (RA38).  Stated another way, even in the absence of his asserted disability, [...] would still seek to separate Petitioner from employment for reasons other than his underlying disability.  The terms of the Settlement Agreement make clear that Petitioner’s return to the job would not be permitted even if the conditions of his disability abated (“[...] hereby understands and agrees that from February 1, 2020 forward he is forever barred from future employment with [[...]]…[and] he is barred from taking any actions as a law enforcement officer for the [...] Police Department” [RA38]).  Thus, the Board properly deemed Petitioner ineligible to apply for AD benefits on statutory grounds.
[brief] Florida v. J.L., 529 U.S. 266 (2000) ...............................................................7  Terry v. Ohio, 392 U.S. 1 (1968).................................................................7  N.J. SUPREME COURT  State v. Locurto, 157 N.J. 463 (1999).......................................................6  State v. Thomas, 110 N.J. 673 (1988).......................................................6  State v. Arthur, 149 N.J. 1 (1997)..........................................................7, 8, 9, 11  State v. Pineiro, 181 N.J. 13 (2004).......................................................7, 8, 11 State v. Goldsmith, 251 N.J. 384 (2022)..................................................11
[brief] THE RELIEF SOUGHT BY THE PLAINTIFFS IS BASED UPON COMMON LAW AND STATUTORY AUTHORITIES AND GRANTS SUBJECT MATTER JURISDICTION UPON THE LAW DIVISION.  Both common law and statutory conflict of interest principles support the filing of the instant case in Superior Court.  As noted below, New Jersey opinions routinely cite and rely upon both types of legal authority in lawsuits involving a conflict of interest of a municipal employee or officer.  Here, the Plaintiffs cited the Local Government Ethics Law (LGEL), N.J.S.A. 40A:9-22.1 to -22.25 in its Verified Complaint.  However, the very relief sought -- and the nature of this case -- explicitly requires and cries out for Superior Court intervention.  Common law principles dictate that a “public official is disqualified from participating in judicial or quasi-judicial proceedings in which the official has a conflicting interest that may interfere with the impartial performance of his duties as a member of the public body. ”  Grabowsky v. Twp. of Montclair, 221 N.J. 536, 551-52 (2015), quoting Wyzykowski v. Rizas, 132 N.J. 509, 523 (1993).  “To determine whether there is a disqualifying interest, a court need not ascertain whether a public official has acted dishonestly or has sought to further a personal or financial interest; the decisive factor is ‘whether there is a potential for conflict.
[brief] [Wohlegmuth, supra, 302 N.J. Super. at 316 (quoting Last, supra, 227 N.J. Super. at 608 (emphasis added). ]  The Appellate Division applied the reasoning from Rosa, supra, 260 N.J. Super. at 458.  In Rosa, this court found a waiver of the defendant’s right to contest the judgment, notwithstanding the deficient service.  Plaintiff should therefore also have been given an opportunity to prove waiver, as well as estoppel or laches, as bases to avoid the defense of lack of in personam jurisdiction.
[brief] The Board does not seek to have any control whatsoever over the actual identity of any of the Association’s “designated representatives,” nor does it take issue with any specific Association member being on the negotiations team.  Rather, the Association must actually select representatives from among its members to act on its behalf during negotiations.  N.J.S.A. 34:13A-5.3 states, in relevant part:  Representatives designated or selected by public employees for the purposes of collective negotiation by the majority of the employees in a unit appropriate for such purposes…shall be the exclusive representatives for collective negotiation concerning the terms and conditions of employment of the employees in such unit.  […]
[brief] THE PCR COURT CORRECTLY FOUND THAT DEFENDANT’S SENTENCE WAS NOT ILLEGAL  While he was out on bail for charges related to [...], defendant was arrested in relation to separate offences later charged under [...].  After he pleaded guilty to Count 2 of [...], third-degree unlawful possession of weapon contrary to N.J.S.A. 2C:39-5b, he was sentenced to serve a flat five years in New Jersey State Prison; and, he was sentenced to a concurrent seven-year term for his guilty plea to Count 6 of [...], second-degree possession of a weapon for an unlawful purpose contrary to N.J.S.A. 2C:39-4a. (Da1-11).  He has served this sentence.  Subsequently, defendant was convicted following a jury trial on all five Counts of [...].  (Da12-13).  At sentencing – after merging Counts 3 and 4 into Count 1 – the trial court sentenced him to an extended term of fifty years of imprisonment subject to NERA on Count 1, first-degree armed robbery contrary to N.J.S.A. 2C:15-1; thirty years of imprisonment subject to NERA on Count 2, first-degree kidnapping contrary to N.J.S.A. 2C:13-1b; and, eighteen months of imprisonment on Count 5, fourth-degree resisting arrest contrary to N.J.S.A. 2C:29-2a.  *Ibid.*; (2T4-22 to 5-21).  His previous convictions were used as predicate offenses for the imposition of his extended term sentence after the court granted the state’s motion to sentence defendant as a persistent offender pursuant to Rule 3:21-4e, N.J.S.A. 2C:43-7, and N.J.S.A. 2C:44-3(a).  (1T10-17 to 11-22; 41-24 to 42-13).  In his PCR petition, defendant challenged the legality of his previous convictions and sentence under [...].  The PCR court properly denied his petition finding that it was time-barred; that it did not establish a prima facie case of ineffective assistance of counsel; and, that there was no support in the record for his contention that the sentencing judge failed to state reasons for not imposing a presumptive consecutive sentence pursuant to N.J.S.A. 2C:44-5(h).  (Da38-45).  On appeal, defendant maintains that the PCR court erred by not vacating his previous convictions and “illegally lenient” sentence.
[brief] This fact alone distinguishes this case from those cited by the [...].  While Appellant stated in its objection letters to the [...] and other governmental entities that a general navigational and safety hazard to boaters, kayakers, and paddle boaters would be created by the dock extension, Appellant focused on the particular navigational issues faced solely by Appellant.  [Aa380-Aa382.]  In sum, Appellant is unable to safely maneuver its watercrafts in or out of its waterfront facilities due to the extension.  [Aa380-Aa382.]  Again, this objection is supported by the documentary evidence in the record.  [Aa149; Aa150; Aa152; Aa188; Aa291-Aa295; Aa297; Aa303.]  The [...] cites to Spalt v. N.J. Dep’t of Envttl. Prot., 237 N.J. Super. 206 (App. Div. 1989), In re Riverview Development, LLC, Waterfront Development Permit No. 0908-05-0004.3 WFD 060001, 411 N.J. Super. 409 (App. Div. 2010), and In re AMICO/Tunnel Carwash, 371 N.J. Super. 199 (App. Div. 2004) in its decision in an effort to explain why Appellant does not have a particularized property interest.
[brief] ”  Id. II.  [...]’S APPLICATION FOR INTERVENTION IS TIMELY AND NON-PREJUDICIAL.  This is an appeal from an administrative action.  R. 2:2-3(a)(2).  [...] is a non-party to the appeal and its interests were not implicated until the matter was pending on appeal and its conduct was placed at issue by the Department as purported support for the Department’s position.  This was done via submissions of November 2023 and January 2024.  [...] had no practical opportunity to intervene at administrative agency level.
[brief] A careful review of [...]’s sentencing decision, through the lens of the standard of review that governs appellate scrutiny of sentencing decisions, shows that defendant has failed to establish that [...] abused her discretion in re-sentencing defendant.  The judge considered the Miller factors, the Yarbough factors, and the statutory aggravating and mitigating factors in light of the evidence presented by defendant at the re-sentencing hearing and the facts and circumstances of defendant’s crimes established at his jury trial.  She correctly identified, considered, and fairly weighed each of these factors.  Her decision comports with how judges should analyze such a confluence of sentencing factors against an extensive record, and, applying the proper standard of deference to it, this Court must uphold it.
[brief] ”  It was unnecessary to specify that a lane change must also be preceded by a signal 100 feet before turning because the statute already defined a turn to include a “move right or left. ”  This construction is further supported by the manner of usage of “movement” in the statute.  Namely, in the first sentence, after listing the various “turn[s],” “move[s],” and “start[ing] or back[ing],” the statute provides that “such movements” may not be made until safe.  Thus, “such movements” as used in the first sentence, includes both “turn[s]” and “move[s] right or left. ”  The phrase “such movement” is repeated in the second sentence to correspond to “so turn,” and hearkens back to the first sentence, in which “such movement[s]” refers to all the listed movements.  So, while defendant attempts to drive a wedge between “turn” and “movement,” the statute in fact uses the words interchangeably.
[brief] *Molnar v. Hedden*, 138 N.J. 96, 104 (1994) (quoting *McGlone v. Corbi*, 59 N.J. 86, 94 (1971).)  Finally, [...] denied the motion to dismiss on the grounds that the landlord was not forthcoming in producing the leases and because Plaintiff may have been misled by [...]’s answers to interrogatories indicating that there were “no other parties who might be responsible.
[directive] At the same time, law enforcement work places an extraordinary mental and emotional toll on officers, and all officers must be free to seek treatment and support that enables them to cope with those pressures.  Accordingly, under no circumstances shall an officer face any sort of discrimination or adverse internal affairs consequences for the sole reason that the officer decided to seek medical or psychological treatment for a mental health concern, including depression, anxiety, post-traumatic stress disorder, or substance use disorder.  All officers are encouraged to take advantage of the resources provided by the New Jersey Resiliency Program for Law Enforcement, as well as the other resources identified in AG Directive 2019-1, also known as the “Officer Resiliency Directive. ”  INTERNAL AFFAIRS POLICY & PROCEDURES | November 2022  10  3  Prevention of Misconduct
[brief] ### Cases  **Berrie v. Berrie,** 188 N.J. Super. 274 (Ch. Div. 1983) .................................................................18  **Canlar v. Estate of Yacoub,** 2018 N.J. Super. Unpub. LEXIS 1764 (App. Div. July 24, 2018) ..........................5  **Carlson v. Jerousek,** 68 N. E.3d 520 (Ill. App. Ct. 2016) ........................................................................15 **Consumer Fin. Pro. Bureau v. Navient Corp.,** 2018 U.S. Dist. LEXIS 215146 (M.D. Pa. Dec. 21, 2018) ......................................20, 21 **Deibler v. Sanmedica Int’l, LLC,** 2021 U.S. Dist. LEXIS 247974 (D.N.J. Dec. 30, 2021) ..........................................5 **Dryer v. NFL,** 2012 U.S. Dist. LEXIS 194684 (D. Minn. May 21, 2012) .....................................11 **Enslin v. Coca-Cola Co.,** 2016 U.S. Dist. LEXIS 193556 (E.D. Pa. June 8, 2016) .......................................14 **Estate of Lasiw v. Pereira,** 475 N.J. Super (App. Div. 2023) ...........................................................................4, 7, 8 **FlowRider Surf, Ltd. v. Pac. Surf Designs, Inc.,** 2016 U.S. Dist. LEXIS 153563 (S.D. Cal. Nov. 3, 2016)
[brief] “The critical determinant of custody is whether there has been a significant deprivation of the suspect's freedom of action based on the objective circumstances, including the time and place of the interrogation, the status of the interrogator, the status of the suspect, and other such factors. ”  *State v. P.Z.*, 152 N.J. 86, 103 (1997).  Courts must determine what a reasonable objective person would have believed in the suspect’s situation and “not on the subjective views harbored by either the interrogating officers or the person being questioned. ”  *State v. Hubbard*, 222 N.J. 249, 267 (2015).  “[S]imply because someone is questioned at a police station, by police officers, does not mean they are ‘in custody. ’  Nor is it dispositive whether police consider someone a ‘suspect,’ ‘person of interest,’ or ‘witness. ’”  State v. Erazo, ___ N.J. ___, ___ (2023)(slip op at 12)(internal citations omitted).
[brief] At no point did [...] oppose the motion by stating he could not afford to make the payment, thereby waiving the argument.  Moreover, any failure of the trial court to make an “ability \textsuperscript{6}The remaining requested amounts included a request for [...] fees totaling $254,201.00 and fees for a Canadian law firm in the amount of $3,103.64 and miscellaneous costs in the amount of $3,735.80.  to pay” determination was—at worst—harmless error, as [...] actually paid the Sanction, in full, almost immediately upon being forced to do so.  (Pa247)  Nobody who is unable to pay a $500,000+ sanction can nonetheless suddenly cut a check for that exact amount so quickly (or at all).  Indeed, [...]’s payment of the $500,000+ sanctions came very soon after [...] had already repaid the cash portion of the sham $700,000 loan in full. \(^7\) (Pa248)  Thus, [...]’s ability to pay was never an actual issue.  For all these reasons, the $503,000 Sanction should be affirmed.
[brief] I, ¶ 10 | 9, 19, 39, 40 | | U.S. Const. amend. VI | 9, 19, 39 | | U.S. Const. amend. XIV | 9, 19, 39 | | **Other Authorities** | | | Informing Injustice: The Disturbing Use of Jailhouse Informants, Innocence Project (Mar. 6, 2019) | 29 | | [...] et al., Campbell Collab., Effects of Parental Imprisonment on Child Antisocial Behaviour and Mental Health: A Systematic Review (2009), https://www.ojp.gov/pdffiles1/nij/grants/229378.pdf | 49 | | [...] & [...], Econ. Pol’y Inst., Mass Incarceration and Children’s Outcomes (2016), https://files.epi.org/pdf/118615.pdf | 49 | | Unreliable and Unregulated Informants, Innocence Project | 29 | PROCEDURAL HISTORY On December 21, 2015, defendant [...] was charged in [...] with first-degree murder, N.J.S.A. 2C:11-3(a)(1) and (2), second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); second-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b); and second-degree certain person not permitted to possess a firearm, N.J.S.A. 2C:39-7(b).
[directive] ¿Entiende que si infringe las condiciones de la supervisión de su libertad condicional, se [Sí/Yes] [No/No] podrá revocar su libertad condicional y es posible que tenga que volver a la cárcel para cumplir todo el período de supervisión de su libertad condicional o cualquier porción del mismo, aún cuando usted ya haya cumplido el período de encarcelamiento que se le impuso anteriormente?  Do you understand that if you violate the conditions of your parole supervision that your parole may be revoked and you may be subject to return to prison to serve all or any portion of the remaining period of parole supervision, even if you have completed serving the term of imprisonment previously imposed?  [Sí/Yes]  [No/No]
[brief] (Pa1; Pa61 at 12:3-6). ¹  The dangerous condition that caused the plaintiff to trip and fall was created by the foot of a temporary barricade erected at the entrance of the [...] store that was bent and protruded above the surface and into the pedestrian walkway.  (Pa63 at 20:14-22; Pa217-Pa219; Pa220; Pa234).  A Complaint was filed on her behalf on November 15, 2021 seeking damages for the permanent injuries she sustained as a result of the fall against [...], Inc. and [...] (hereinafter “the defendants” collectively or “defendant [...]” and “[...]” individually).
[brief] (10T 5-2 to 5-12; 10T 41-23)  At the time of his arrest, [...] was in possession of a loaded firearm.\(^3\) (14T 6-4 to 6-14; 10T 42-18 to 42-23; 10T 43-25 to 44-14)  [...] gave a post-arrest statement to police that, as [...] admitted at trial, was filled with lies and inconsistencies.  (11T 122-17 to 122-22)  He began his statement by telling police that he was not in New Jersey on the day of the shooting; he claimed he was living out of state since September and had just returned for his cousin’s funeral.  (10T 74-7 to 79-21)  He later told police that he went to Virginia on November 2, picked up a friend and “drove him back up here. ”  (10T 83-10 to 84-21)  He finally admitted that he was at the barbershop that night but claimed he went there alone and had nothing to do with shooting.  (10T 97-10 to 109-16)  He told police, “I was there gambling, a shot went off, I looked up, I ran, that’s it. ”  (10T 117-6 to 117-7)  On December 30, 2022, Atlanta police, accompanied by New Jersey detectives, arrested [...] at his home.
[brief] See Lancos v. Silverman, 400 N.J. Super. 258, 275 (App. Div.), certif. denied, Lydon v. Silverman, 196 N.J. 466 (2008).  No such discretion, however, is accorded to a ruling that is incompatible with the applicable law.  Pressler & Verniero, Current N.J. Court Rules, comment 4.7 on R. 2:10-2 (2024).  Plaintiff in this case asserts that cumulative errors relating to the admission of evidence resulted in an inconsistent verdict holding that although the defendant violated the standard of care, there was no proximate cause and no violation of the decedent’s rights under the NHA.
[brief] The First Count of the Verified Complaint sought to void all actions taken by the Borough Council at its January 11, 2022, reorganization meeting and to direct the Council to convene a new meeting due to its failure to properly notice the January 11th special meeting.  The reorganization meeting had previously been noticed for January 4, 2022, but was not held on that date.  The Second Count of the Verified Complaint challenged the Borough’s enactment of Ordinance 1423-21 on December 28, 2021, which amended the Redevelopment Plan because (i) the amendment was introduced on November 12, 2021, at a special meeting held in violation of the OPMA; (ii) the ordinance was reviewed at a special meeting of the Planning Board held on December 16, 2021, in violation of OPMA; and (iii) adoption of the Ordinance violated the substantive and procedural requirements of the LRHL and N.J.S.A. 40:49-2.  The Third Count of the Complaint sought a waiver of the 45-day limitations period to permit plaintiff to challenge the original adoption of the Redevelopment Plan in December, 2020, which suffered from some of the same violations of the LRHL and of N.J.S.A. 40:49-2 that plagued the adoption of the amendment.
[brief] LoBiondo, 199 N.J. at 90; Freeman, 347 N.J. Super. at 26.  Because [...]’s complaint was not filed until October 13, 2020, over two years after he had reason to know he had a basis to bring suit, the trial court below also correctly held that [...]’s malicious prosecution-related claims were time-barred by the applicable two-year statute of limitations.  (Pa1-Pa43, Pa353).  In the court below, as on appeal, [...] relies on the self-serving assertion that his malicious prosecution-related claims first began to accrue on October 17, 2018, a date that would be within the applicable two-year statute of limitations.
[brief] (Pa7-Pa9).  In addition, the Commission found that, of the genuine vacancies claimed by [...], two were filled before the certification of PM1039V, and the impending retirements on February 1, 2023 and March 1, 2023 could not be considered current vacancies pursuant to N.J.A.C. 4A:4-4.8(b).  Ibid.  [...] also questioned why similar concerns regarding genuine vacancies were not raised in connection with the two prior retirements.  (Pa8-Pa9).  [...] acknowledged that it filled those two vacancies in July 2022 in anticipation of retirements to take place in September 2022 and October 2022.  (Pa55).  This was consistent with [...]’s then-normal practice of filling positions based on pending retirements, which were not ultimately genuine vacancies.  (Pa63).  However, because the certification for these positions was issued and disposed of before the expiration of PM1039V, the [...] never confronted whether a disposition due date required extension in connection with these promotions.  (Pa9).  They therefore did not involve the same concerns as the present matter and have little relevance.  (Ibid.).  This appeal from the August 23, 2023 Final Administrative Action by the Commission followed.  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.