ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] (Pa3 ¶ 11).  At the time of the filing of the Verified Complaint, it had been over 100 days since Plaintiff’s written request, and no information had been provided by Defendant.  (Pa3 ¶ 12).  This is most disturbing since the items Plaintiff stored at his Aunt’s home are potentially worth well more than the amount he owes the Estate, and if said items were sold by the Administrator and Trustee, Plaintiff’s debt may well have been paid off.  Unfortunately, Defendant’s refusal to comply with the law and his fiduciary duty make such a determination impossible.  (Pa3 ¶ 13).  At the time of the filing of the Verified Complaint, more than two (2) years had elapsed since Defendant was appointed Administrator and Trustee, and he had not settled his account as provided under N.J.S.A. §§ 3B:17-2, 3B:17-3, or 3B:17-10.  (Pa4 ¶ 15).  Accordingly, [...] filed the within action, seeking an order that, inter alia, Defendant, Administrator CTA of the Estate of [...] and Trustee of Rhoda’s Trust, present and settle an account of his administration of the Estate and Trust.  (Id.)
[brief] As in *Salamone* and *Calabrese*, the trial court disqualified [...] from service without making the “necessary inquiry” into his fitness to serve.  *Salamone*, 800 F.2d at 1226.  New Jersey law prohibits those “convicted of any indictable offense under the laws of this State, another state, or the United States” from jury service, 2B:20-1, but allows individuals with expunged convictions to serve on juries.  *D.J.B.*, 216 N.J. at 441.  Once a conviction has been expunged, “the arrest, conviction and any proceedings related thereto shall be deemed not to have occurred, and the [person] may answer any questions related to their occurrence accordingly.
[brief] The trial court deprived [...] of his constitutional right to present a complete defense by restricting [...] from presenting this evidence and arguing third-party guilt to the jury.  “The Compulsory Process Clause in the United States and New Jersey Constitutions gives the accused in a criminal prosecution the right to call ‘witnesses in his favor. ’”  State v. Cope, 224 N.J. 530, 551 (2016) (quoting U.S. Const. amends. VI; N.J. Const. art. I, ¶ 10).  Thus, “[a] defendant has a constitutional right to present a complete defense, including the ‘right to introduce evidence of third-party guilt. ’”  State v. Hannah, 248 N.J. 148, 180, (2021) (quoting Cope, 224 N.J. at 551).  Evidence of third-party guilt is admissible “if the proof offered has a rational tendency to engender a reasonable doubt with respect to an essential feature of the State’s case. ”  State v. Fortin, 178 N.J. 540, 591 (2004).  “That standard does not require a defendant to provide evidence that substantially proves the guilt of another, but to provide evidence that creates the possibility of reasonable doubt. ”  State v. Cotto, 182 N.J. 316, 333 (2005).  The connection between the proffered evidence and the crime cannot be based on mere conjecture.  Ibid.  “Rather, a defendant’s proofs must be capable of demonstrating ‘some link between the third-party and the victim or the crime. ’”  Ibid. (quoting State v. Koedatich, 112 N.J. 225, 301 (1988)).  The defendant’s proffered evidence must also be admissible under the Rules of Evidence.
[brief] In the seminal CFA case, Cox v. Sears Roebuck & Company, the Supreme Court held that non-payment did not preclude the plaintiff from establishing an ascertainable loss.  Cox, supra, 138 N.J. at 22, ("[T]o demonstrate a loss, a victim must simply supply an estimate of damages, calculated within a reasonable degree of certainty.  The victim is not required actually to spend the money for the repairs before becoming entitled to press a claim.").  Cullum at 253-54.
[brief] (T4 125-3 through 125-23).  19.  The jury then returned a verdict in favor of the Respondent and against the Appellant in the amount of $240,000.  (Da29-Da30).  The court subsequently entered judgment in the amount of $250,085.48 in favor of Respondent and against Appellant, which included $10,885.48 in pre-judgment interest.  (Da29-Da30).  Judgment was initially entered on October 17, 2023.  (Da29-Da30).  20.  On October 19, 2023, Respondent filed a motion to pay counsel fees, enhanced interest and legal expenses based upon the non-acceptance of the previously filed offer of judgment.  21.  Subsequent to the filing of the within Notice of Appeal, the court granted in large part the Respondent’s motion for costs, enhanced prejudgment interest and attorney’s fees.  (Da47-Da48).  22.  Defendant/Appellant [...] was insured under a policy of automobile liability insurance with a $100,000 limit.  (Da63).  23.  The revised judgment docketed by the court on January 19, 2024 included an additional award of costs in the amount of $13,937.54.  They were also awarded an additional $7,675.07 in additional pre-judgment interest.  Finally, the order awarded attorney’s fees in the amount of $31,800.  Thus, under the January 19, 2024 order in response to Respondent’s motion for costs, fees and enhanced interest, the overall judgment was increased by a total of $53,412.61.  (Da47-Da48).
[brief] Rezem Family Assoc., LP v. Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div.), cert. denied, 208 N.J. 366 (2011).  The Court “review[s] such a motion by the same standard applied by the trial court; thus, considering and accepting as true the facts alleged in the complaint; [it] determine[s] whether they set forth a claim upon which relief can be granted.  Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div. 2005).  However, “[i]t is a long settled principle of appellate jurisprudence that an appeal is taken from a trial court’s ruling rather than reasons for the ruling.  [An Appellate Court] may [therefore] affirm the final judgment of the trial court on grounds other than those upon which the trial court relied. ”  *New Jersey Div. of Child Protec. and Permanency v. K.M.*, 444 N.J. Super. 325, 333–34 (N.J. Super. App. Div. 2016) (citations and quotations omitted).  See also *Hayes v. Turnersville Chrysler Jeep*, 453 N.J. Super. 309, 313–14 (N.J. Super. App. Div. 2018); *State v. Santa-Mella*, 2022 WL 2309245, at *7 (N.J. Super. App. Div. June 28, 2022).  C.
[brief] The Court Rules provide that a defendant is entitled to all relevant discovery.  R. 3:13-3b, et seq.  Relevance in this context may not be assessed solely from the perspective of the State.  State v. Ford, 240 N.J. Super. 44, 52 (App. Div. 1990).  So long as the discovery at issue is not beyond the scope of discovery as defined in Ford, i.e., “evidence having any tendency in reason to prove any material fact,” it must be provided.  Id. at 48.  Stated differently, a discovery demand must be honored if the information sought “(1) concerns an issue involved in the prosecution and (2) tends, reasonably, to prove a fact material to such an issue. ”  State v. Tull, 234 N.J. Super. 486, 499 (Law Div. 1989); see also United States v. Bagley, 473 U.S. 667, 682 (1985) (holding that the State must provide discovery to the defendant which might be used to impeach the State’s witness(es)).  In this matter, the discovery relative to the “[...]” account that was used by [...] to communicate with Defendant on the date of his arrest is clearly relevant and certainly had (at an absolute minimum) a tendency to prove a material fact at issue.  Accordingly, it should have been preserved by the State and produced to the defense.  In particular, [...]’s “[...]” profile information, which included at least one (1) photograph and his age, was critical to a primary issue in the prosecution of this case, to wit: whether Defendant knew that he was communicating with a minor.  This should have been apparent to the State during the investigation.  Yet, that discovery was not preserved and was never provided to the defense.  Rather, it was lost/destroyed by Detective Borow.  Notably, it is well-established that, for Brady purposes, the knowledge of police officers is imputed to the prosecutor.  See State v. Russo, 333 N.J. Super. 119, 133-35 (App. Div. 2000); State v. Mustaro, 411 N.J. Super. 91, 102 (App. Div. 2009); State v. Robinson, 229 N.J. 44 (2017) (holding that discovery in the possession of police are deemed to be in the possession of the prosecutor).  The State’s failure in this regard is fatal to its case.  POINT II
[brief] APPELLANT’S BELATED ATTEMPT TO INCORPORATE A DIRECT APPEAL OF THE 2017 WFD PERMIT AND 2019 PERMIT MODIFICATION SHOULD BE REJECTED BECAUSE IT IS UNTIMELY AND THE 2017 WFD PERMIT AND 2019 PERMIT MODIFICATION SHOULD BE AFFIRMED AS THEY WERE ISSUED PURSUANT TO [...]’S AUTHORITY AND IN COMPLIANCE WITH THE WATERFRONT DEVELOPMENT LAW AND THE CZM RULES (Aa0001-Aa0005; Aa0089-Aa0091; Aa546-Aa555).
[brief] On June 11, 2015, Plaintiffs filed a Complaint against the Cooper Levenson defendants, among others, under docket number [...] (the “2015 Lawsuit”\(^2\)).  (259a).  On July 20, 2015, [...], Esquire and [...] filed an Answer to the Complaint with Separate Defenses and a Demand for Affidavits of Merit.  (259a).  On or about November 24, 2015, [...], Esquire and [...]  filed a Motion to Dismiss the plaintiffs’ Complaint for failure to provide an Affidavit of Merit. \(^3\)  The Motion was granted by [...], and the Complaint against [...] and the Cooper Levenson firm was dismissed, with prejudice, on January 19, 2016.  (284a).  \(^2\)  Based on the legal argument presented below, it is respectfully submitted that this Court take judicial notice of the pleadings and Motions filed in the 2015 action, which involve the same facts and transaction as the instant matter.
[brief] Thus, rather than prepare an amended judgment of conviction as first requested by [...]’s counsel, the court simply ordered that the October 17, 2018 judgment of conviction be vacated.  (Pa223; Pa224-Pa225).  2013 WL 3550894, at *12 (W.D. Pa. July 11, 2013) (“[S]tate law governs the accrual of state causes of action. ”) (internal citations omitted).  Accordingly, [...]’s assertion that the Third Circuit decision of Smith v. Holtz, 87 F.3d 108 (3d Cir. 1996) is “dispositive,” is without merit.  (Pa13); Rankin, 2013 WL 3550894, at *12.  Second, [...]’s claim that the Heck deferred accrual rule applies to an anticipated future conviction, (Pb12-Pb13), is unsupported by Heck and was also expressly repudiated by the United States Supreme Court in Wallace v. Kato, 549 U.S. 384 (2007).
[brief] The subject matter is such that jurors of common judgment and experience can form a valid judgment as to whether the conduct of [...] was reasonable.  See id.  Thus, even without the aid of expert testimony, Plaintiffs should be permitted to go before a jury because Plaintiffs can demonstrate that [...] owed Plaintiffs a non-delegable duty to use reasonable care to protect Plaintiff against known or reasonably discoverable dangers, and breached that duty, by not only failing to implement policies and procedures to address the risk of overloaded U-boats, but also by failing to provide adequate and proper training to its employees to ensure proper use by its customers.
[brief] VOL. I October 27, 2023  Order granting the [...]’ Motion to Compel Arbitration .............................................. Pa0001 October 27, 2023  Order granting the [...]’ Motion to Dismiss .......................................................... Pa0009 October 27, 2023  Order granting Defendant [...]’s Motion to Dismiss ..................................................................... Pa0016  Plaintiffs’ Complaint, filed March 15, 2023 ......................................................... Pa0023  VOL.  II Defendants [...] d/b/a [...]; [...]; [...]; and [...]’s Answer, filed June 2, 2023 .............................................. Pa0152 Defendants [...]; [...]; [...]; and [...]’s Answer, filed October 19, 2023 ........................................................................... Pa0215 Defendant [...]’ Answer, filed October 23, 2023 ........................................ Pa0257 eCourts Docket Page for [...] .................................................... Pa0334 Defendants [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], and [...]’s Notice of Motion to Dismiss/Remand in lieu of Answer, filed April 13, 2023 ........................................................................... Pa0335 Defendants [...], [...], [...], [...], and [...]’s Notice of Motion to Compel Arbitration, filed April 24, 2023 ........................................................................... Pa0338 Defendant [...]’s Notice of Motion to Dismiss for Failure to State a Claim, filed June 2, 2023……………………………………………………………Pa0341 Defendants [...], [...], [...], [...], and [...]’s Notice of Motion to Compel Arbitration, filed August 10, 2023……………………………………………………………………Pa0344 Defendants [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], and [...]’s Notice of Motion to Dismiss/Remand in lieu of Answer, filed August 14, 2023……………………………………………………………Pa0347 VOL. III Defendant [...]’s Notice of Motion to Dismiss for Failure to State a Claim, filed August 16, 2023……………………………………………………………Pa0350
[brief] Like in *Mauricio*, [...] testified at the trial that there was a physical struggle between the victims and [...] as the victims were “trying to get [[...]] out of the house. ” (5T22-9 to 17).  [...] similarly testified that there was a “tussle” between the victims and [...].  (5T120-5).  More importantly, however, is the fact that one of the victims, [...], was armed with a loaded handgun—almost certainly the same gun that was used in the shooting.  Because [...] ultimately got control of the gun, the reasonable inference is that at some point [...] must have produced the gun during the struggle.  Just like *Carrero*, a physical struggle in which the victim produces a handgun against a defendant must sufficiently meet the low-threshold rational-basis test for instructing on passion/provocation manslaughter.  *Id.* at 130.  Accordingly, given the clear facts in support of the instruction, the trial court was obliged to instruct the jury on passion/provocation manslaughter as lesser-included offenses of the murder counts.
[brief] In fact, when the Supreme Court held that there was no right to trial by jury for NJLAD cases in Shaner v. Horizon Bancorp., 116 N.J. 433 (1989), the Legislature promptly overruled the Supreme Court and added an explicit right to trial by jury in N.J.S.A. 10:5-13.  See L.1990, c.12, Assembly Judiciary, Law and Public Safety Committee Statement (reprinted as an annotation to N.J.S.A. 10:5-3).  “The swiftness of the Legislature’s reaction to [the Shaner] decision leads to the inference that the amendment was curative, intended to express that the Legislature actually meant to confer a jury-trial right despite its failure to expressly say so. ”  Allstate New Jersey Ins. Co. v. Lajara, 222 N.J. 129, 150-51 (N.J. 2015); see 1A [...], Sutherland Statutory Construction, § 22.31, at 375 (7th ed. 2009) (noting that when amendment is expeditiously adopted to overturn judicial interpretation of statute, courts may “logically conclude that a[n] amendment was adopted to make plain what the legislation had been all along from the time of the statute’s original enactment”).  Specifically, in the context of whether an arbitration clause should be applied to an employee’s NJLAD claim, the Supreme Court has emphasized that the “choice of forum established by the [NJ]LAD is an integral feature of the statute. ”  Garfinkel v. Morristown Obstetrics & Gynecology, 168 N.J. 124, 131 (2001).  Therefore, it is clear that the history of the NJLAD mandates that the aggrieved party have the right to a jury trial.
[brief] A thorough legal research on all federal and all state precedents, Defendants have not found a case directly supporting this new “creative” ruling.  Almost all courts reject the concept to award legal fees to plaintiffs for no actual damages sustained by plaintiffs.  Almost all courts across the nation held that the argument that plaintiff would not have incurred attorneys’ fees in cases and the related litigations but for defendants’ breach of duty or contracts is unpersuaded, because plaintiff is attempting to recast his attorney’s fees as consequential damages of the breach to be unavailing and nothing more than a pedestrian attempt to circumvent the American Rule that parties shall bear their own legal fees.  One court had pointed out that “[i]t is the defendant’s actions that caused the breach of contract that are compensated for, and not the plaintiff’s action in seeking to enforce his or her rights. ”
[directive] Either a photo array or live lineup must be done.  The officer must ask the witness whether he or she has spoken to anyone (law enforcement or civilian) about the identification, and also instruct the witness not to speak to anyone about the identification and not to obtain information from other witnesses or sources.  Officers must avoid providing any “feedback,” that is, signaling to the witness in any way (whether during or after the procedure) that the witness had correctly identified the suspect.
[brief] Richardson v. Board of Trustees, 192 N.J. 189, 212-13 (2007) (emphasis added).  The applicant bears the burden of proof on each of these elements.  Id. at 212.  Here, the Board determined that Petitioner met all of the Richardson elements except element 2-c above, because he failed to demonstrate his disability was the direct result of a traumatic event caused by a circumstance external to the member.
[brief] Plaintiff also violated N.J. S.A. 2A:13-6 as in addition to the Pre-Action Notice, N.J.S.A. 2A:13-6 mandates that an action for fees cannot be commenced unless the attorney first sends by certified mail, return receipt requested, and regular mail a full accounting of its bill to the client’s residence.  *Merkling v. Merkling*, 30 N.J. Super. 272, 104 A.2d 79, 1954 N.J. Super. LEXIS 645 (Ch.Div. 1954).  This court in *Crusader Servicing Corp. v. Demarzino*, A-2930-04T2, 2006 WL 280519 (N.J. Super. Ct. App. Div. Feb. 7, 2006) held that a complaint filed in violation of the law is invalid and so is any judgment thereon “because the complaint upon which [it was] based was void and could not effectively initiate judicial action and confer subject matter jurisdiction on the [court] at the time it was filed. ”  *Crusader*, at *6.  As *Crusader* holds, complaints cannot be filed in derogation of court rules, especially by trained attorneys.  In *African Am. Data & Research Inst., LLC v. Hitchner*, A-1592-20, 2023 WL 3014833 (N.J. Super. Ct. App. Div. Apr. 20, 2023), the appellate court upheld dismissal of an unverified complaint because the plaintiff failed to follow OPRA Rule 4:67-2(a)’s pre-requisite that mandated the filing of a verified complaint and held that rule violation rendered the unverified complaint a nullity and insufficient to invoke the court’s subject matter jurisdiction.
[brief] [...]’s attempts to apply various cases (many of which Plaintiff previously distinguished and/or addressed in its underlying brief) only reaffirms Plaintiff’s argument.  See [...] Brief, pp. 13-15  For example, [...] relies on Beture, 2018 U.S. Dist. LEXIS 121801, at * 28 for the following:  “…the relief would primarily benefit the discrete\(^2\) class members who purchased defective phones and suffered actual harm by requiring Samsung to ‘correct, replace or otherwise rectify’ the phones, and, at best, would incidentally benefit potential future purchasers of Samsung smartphones who had not suffered any harm)…”  Id.  Here, and unlike Betre, where the alleged injunctive relief could “replace” or “rectify” the phones purchased by those plaintiffs (i.e. to their direct and immediate benefit), changing [...]’s form, New Jersey, Membership Agreement does nothing for Plaintiff or the putative class as they have already received [...]’s health club contract, which violates various New Jersey consumer statutes.  Thus, stopping [...] from using the Membership Agreement does not change the fact that when it was first provided to Plaintiff it failed to contain her total payment obligation, or obligated her to renew the contract pursuant to HCSA, 56:8-42(b) and (i).  (Ja14,Ja22-Ja23)  On the other hand, if [...] is forced to change its Membership Agreement, the total \(^2\) Which as previously stated was not pleaded in Plaintiff’s Complaint but made up by [...].  Supra. payment obligation would be present, and the obligating renewal language would be absent, from the Membership Agreement provided to future New Jersey consumers.  [...] also relies on *Grigorian v. Citibank*, N.A., 2024 U.S. Dist. LEXIS 71375, * 10 (C.D. Cal. April 17, 2024) which is inapplicable to the case, *sub judice*, for a couple of reasons.  First, the subject arbitration and/or class action waiver provisions do not mention “public injunctive relief” (unlike [...]’s Membership Agreement”; and, second, unlike *Gregorian* which involved a specific ethnic group’s (i.e. Armenians’) credit card applications, Plaintiff’s Complaint does not contain such limitations but involves the entire New Jersey public who could be provided with [...]’s violating Membership Agreement.  Accordingly, Plaintiff’s injunctive relief sought in the Complaint alleging [...]’s CFA, HCSA, TCCWNA and RISA violations is specifically excluded from the arbitration provision in [...]’s form, New Jersey, health club “Membership Agreement”
[brief] N.J.A.C. 7:25-5.6, current through amendments included in the New Jersey Register, Vol. 55, Issue No. 18, dated September 18, 2023.  If the 30% threshold was reached before the second phase of the bear hunt on December 4, then the second phase would be cancelled.  See, 2023 Black Bear Management FAQs published at dep.nj.gov (last visited 11/15/23).  The Code promulgated by the Council requires that hunters obtain black bear hunting permits and comply with the black bear hunting requirements, including the payment of a permit fee in order to hunt bears within the special zones set up within the northwestern part of the State where bear hunting is to be allowed.  N.J.A.C. 7:25-5.6 published in New Jersey Register, Vol. 55, No. 19, October 2, 2023.
[brief] The trial court issued its decision on December 20, 2023, and it was a resounding vindication for each of [...]’s core positions.  The court began its decision noting the 1967 subdivision and its intent: the transfer of the Strip to Lot 3.  4Tr. at 4:16-25.  After briefly summarizing how the parties came to own the properties today, the court found, “an important question that the Court must answer is whether plaintiff took title to this property in 1991 on notice that there was a cloud on the title to the strip. ”  Id. at 6:3-6.  In determining whether [...] had notice of the cloud on Lot 4’s title to the Strip, the court presented its findings and observations about the witnesses who testified at trial.
[brief] The Pre-Action Notice was effectively served on Defendant [...], despite her efforts to evade service.  Defendant [...] proceeded through arbitration while the underlying complaint remained dismissed without prejudice, awaiting the outcome of that arbitration process.  Once the arbitration was fully utilized by Defendant [...], Plaintiff moved to reinstate the complaint and the trial court properly entered judgment in the amount of $4,600.00 against the Defendant [...].  Respectfully, this Court should now affirm the denial of Defendant’s motion for reconsideration.