ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The judge’s failure to charge the jury, that its verdict on the grading question related to a theft charge had to be found beyond a reasonable doubt, was not plain error, because the whole jury charge advised the jury of the State’s obligation to prove all elements by proof beyond a reasonable doubt.  *Id.* at 603-05.  Likewise, in *State v. Mendez*, 175 N.J. 201 (2002), Mendez did not object to the portion of the charge that failed to indicate that a special interrogatory asking for a “yes” or “no” answer was subject to the “beyond a reasonable doubt” standard.  175 N.J. at 207, 214.  The Court held any flaw in the special interrogatory omitting that standard was not plain error, as the jury charge “clearly instructed jurors that they had to be convinced of the State’s proofs beyond a reasonable doubt.
[brief] Regulations are “presumed to be reasonable and valid” and if such regulation is “procedurally regular, it may be set aside only if it is proved to be arbitrary or capricious or if it plainly transgresses the statute it purports to effectuate, or if it alters the terms of the statute or frustrates the policy embodied in it. ”  Matter of Repeal of N.J.A.C. 6:28, 204 N.J. Super. 158, 160 (App. Div. 1985).  Any rulemaking that does not “conform[] with basic tenets of due process and provide[] standards to guide both the regulator and the regulated,” will be set aside.  Lower Main St. Assocs. V. N.J. Hous. & Mortg. Fin. Agency, 114 N.J. 226, 236 (1989).  Courts will also set aside rulemaking if it is not “authorized by or consistent with the agency’s enabling legislation. ”  Id. at 243.  As such, in reviewing administrative actions, the judicial role is ordinarily confined to three inquiries: (1) whether the agency’s action violates the enabling act’s, express or implied legislative policy; (2) whether there is substantial evidence and records to support the findings upon which the agency based application of the legislative policies; and (3) whether, in applying the legislative policies to the facts, the agency clearly erred by reaching a conclusion that could not reasonably have been made upon a showing of the relevant factors.
[brief] Defendant is a joint land use board consisting of Class I, Class II, Class III, and Class IV members organized pursuant to N.J.S.A. 40:55D-69 and [...] Code § 149-1 et seq. (Da001–002).  The Board exercises all powers of both a planning board and zoning board of adjustment.  N.J.S.A. 40:55D-25.  The Board’s Class I and Class III members may not participate in applications involving N.J.S.A. 40:55D-70d relief.  N.J.S.A. 40:55D-25c.(2).
[directive] These Guidelines are designed to channel prosecutorial discretion, not to eliminate it.  It is expected that courts in reviewing whether a plea offer is arbitrary and capricious, reflecting a gross and patent abuse of prosecutorial discretion, will generally defer to prosecutors as to whether there is a good faith basis to support a determination that a defendant is ineligible for a standardized waiver offer based upon one or more specific eligibility criteria, or to support a prosecutor’s use of a Special Offense Characteristic, an Aggravating or Mitigating Factor, a Special Application and Enhancement Feature, or a Downward Departure for Trial Proof Issues or for Substantial Cooperation.  See State v. Vasquez, 129 N.J. 189, 196 (1992) (the standard of judicial review of a prosecutor’s decision under N.J.S.A. 2C:35-12 requires a defendant to show by clear and convincing evidence that the prosecutor’s decision was arbitrary or capricious to be entitled to relief).
[brief] On March 31, 2023 [...] again presided over a joint resentencing hearing.  (5T)  [...] argued to reduce his sentence from a term of life imprisonment to a term of 40 years.  Judge D’arrigo did not modify [...]’s base sentence, and again imposed two concurrent terms of life imprisonment, but this time lowered the parole bar to 29 years, one year fewer than the 30-year bar previously imposed.  (5T92-2 to 12)
[brief] They arrived at the beach around lunch-time and spent the day there.  They left the beach around 5:30 p.m. and went to the laundromat in Neptune City.  They left the laundromat at approximately 8:30 p.m. and then drove around for a while.  Defendant needed to use the bathroom, so he parked at the boardwalk in Asbury Park to use a Port-a-John.  [...] stayed inside the car.  (7T:121-11 to 124-18).  Notably, [...] observed defendant take Adderall when they were leaving the beach.
[brief] *Id.* at 286-287 (emphasis added).  In light of the fact that the damages available to an insurance carrier under the Insurance Fraud Prevention Act are equitable in nature and since a jury trial is not available at common law in the courts of equity (*See Wanaque Borough Sewerage Auth. v. Township of West Milford*, 144 *N.J.* 564, 575, (1996)), the Court properly held that the parties here are not entitled to a jury trial.
[brief] See Clark v. Fog Contracting Co., 125 N.J. Super. 159 (App. Div.), certif. den. 64 N.J. 319 (1973) in which a proposed expert witness was named in answers to interrogatories but no written report was annexed as requested.  The answering party conceded that he received an oral report of the substance of the expert’s expected testimony.  In enforcing the obligation under R. 4:17-4(a) to furnish subsequently received reports, whether written or oral, the court precluded the expert from testifying.
[brief] PROCEDURAL HISTORY AND STATEMENT OF FACTS..........................  1  ARGUMENT  THE COMMISSIONER’S DECISION SHOULD BE AFFIRMED BECAUSE IT ACCORDED WITH THE LAW AND WAS SUFFICIENTLY SUPPORTED BY THE RECORD  ...........................................................................................................8  A.  The Commissioner Correctly Found [...] in Violation of N.J.S.A. 18A:12-24(b) and -24.1(f).  ................ .................12  B.  The Commissioner Correctly Found [...] in Violation of N.J.S.A. 18A:12.1(e).  ................ .........................15  C.  The Commissioner’s Decision to Affirm the Commission’s Penalty Recommendation of Censure was Reasonable and Supported by Precedent .........................................................19  CONCLUSION ......................................................................................................................21
[brief] The State’s reliance on Rahimi misses the point.  Rahimi involved a Texas resident whose gun license was suspended for two years as part of a domestic violence restraining order.  Id. at 1895.  After the restraining order --- 3  This decision has been vacated and remanded to the Third Circuit for further consideration in light of Rahimi.  Garland v. Range, 144 S. Ct. 2706 (2024).  was entered, Rahimi was arrested for possessing a firearm while subject to a domestic violence restraining order, in violation of 18 U.S.C. § 922(g)(8).
[brief] ”  Ibid.  Despite its claimed concern for potential air pollution impacts, the undisputed facts show that the compressor is powered by electricity, which will not create emissions.  (Aa55; Aa80).  The only emissions the Project would create will be an “emergency generator, a heater, and infrequent venting that will occur during operation and maintenance of the facility. ” (Aa80).  Those emissions would be subject to separate permitting requirements by DEP that are not at issue here.  Ibid.  Appellants’ concern that the Project will “contribut[e] to increased [greenhouse gas] emissions” is outside the scope of DEP’s review.
[brief] The factual circumstances in each case will determine the appropriate weight to be accorded to any factor or group of factors.  State v. O’Neill, 193 N.J. 148, 181 (2007)  Defendant’s characterization of the record surrounding his March 6 interview as supporting a determination that his interview was “custodial” is incredible, and the primary case he relies on in support, State v. O’Neill, 193 N.J. 148 (2007), is completely factually inapposite.  In, O’Neill, the defendant was questioned while he was behind bars and by officers who knew he had a handgun at the time of a murder.  He was interrogated for over an hour and a half about his precise whereabouts that night before being administered Miranda warnings.  Id. at 169.  Here, the record clearly demonstrates that Defendant was not in custody during his March 6, 2018 statement.
[brief] The Punitive Damages Award is Not Against the Weight of the Evidence, Nor is it Excessive (RAISED BELOW: Pa57-Pa61)  Finally, the Defendants contend that the Jury’s punitive damages award is excessive and against the weight of the evidence because there is no proof of intentional/willfully ignorant conduct by the upper management of the Defendants to satisfy such an award.  See Db at pp. 26-32.  Again, the Defendants arguments are belied by the factual record at trial in this matter, and as such, appeal on this ground should be rejected, and the Jury’s punitive damages award affirmed.
[directive] [Não corresponde/NA] você também se declarar culpado por posse de arma que não seja arma de fogo sob circunstâncias evidentemente inapropriadas para o uso legal da arma enquanto cometeu, tentou cometer ou conspirou para cometer qualquer um destes crimes, você receberá uma sentença consecutiva por posse de arma? you also plead guilty to possessing a weapon, other than a firearm, under circumstances not manifestly appropriate for lawful use of the weapon while committing, attempting to commit or conspiring to commit any of these offenses you will receive a consecutive sentence for possessing the weapon?  Data/Date Réu/Defendant Advogado de defesa/Defense Attorney Promotor/Prosecutor no Formulário promulgado pela diretiva 01-18, (02/23/2018), CN 11169-Portuguese página 2 de 2 Revised Form Promulgated by Directive #01-18, (02/23/2018), CN 11169-Portuguese page 2 of 2 Attachment 9 Supplemental Plea form for No Early Release Act (NERA)
[brief] [...]’s 2022 Reorganization Meeting was originally scheduled to take place on January 4, 2022.  (Pa163).  The Borough published notice of the Reorganization Meeting in the Borough’s designated newspapers on December 23, 2021.  (Pa163, Pa261).  Notice of the meeting was also posted on the Borough website and on the bulletin board in Borough Hall.  (Pa163).  In the last two weeks of December 2021, [...] unfortunately became ill with COVID-19, and was unable to perform her duties as Deputy Clerk during that time.
[brief] ”  Romano v. Maglio, 41 N.J. Super. 561, 568 (App. Div.), certif. denied, 22 N.J. 574 (1956), cert. denied, 53 U.S. 923 (1957).  Granting leave to appeal here would frustrate each of those goals.  As a threshold issue, the State wrongly asserts that “[w]ithout this court’s interference, the State will not have another opportunity to appeal for relief…”  Plaintiff-Appellant’s Brief at 19.  On the contrary, the State will have the right to seek appellate review if [...] ultimately grants [...]’s suppression motion.  State v. Witt, 435 N.J. Super. 608, 610 (App. Div. 2014) (“[I]t is our general practice to grant the State’s motions for leave to appeal the suppression of evidence”) (citations omitted).
[brief] It is therefore the doctrine of Stare Decisis that OBLIGATES courts to look at precedents while formulating their decisions to which the lower court failed to demonstrate.  This further speaks to the trial court’s clear abuse of judicial discretion, for absent of being able to demonstrate valid proof of service (Plaintiff [...] failed to respond) (Pa1) the 1990 court lacked personal jurisdiction as determined in: (Gen. Elec. Co. v. Deutz AG, 270 F3d 144, 150, (3d Cir. 2001).
[brief] ’”  *State v. Acevedo*, 205 N.J. 40, 45 (2011) (quoting *State v. Murray*, 162 N.J. 240, 247 (2000).  “A defendant may challenge an illegal sentence at any time. ”  *State v. Zuber*, 227 N.J. 422, 437 (2017) (citing R. 3:21-10(b)(5) and *Acevedo*, 205 N.J. at 47 n.4).
[directive] Rule or Statute Description  This Rule provides that “Except in first or second degree cases as set forth in N.J.S.A. 2A:162-12 and unless the order setting the bail specifies to the contrary, Rule 3:26-4(g) whenever bail is set pursuant to Rule 3:26-1, bail may be satisfied by the deposit in court of cash in the amount of ten-percent of the amount of bail fixed and the Ten Percent Cash Bail.  4 defendant’s execution of a recognizance for the remaining ninety percent.  No surety shall be ordered unless the court fixing bail so orders. ”  This Rule provides that the State may request either orally or in writing, at any time prior to the commencement of trial, a hearing pursuant to N.J.S.A. 2A: 162-13.
[brief] On or about July 8, 2019, the Bill Ricci Rescue, Recovery, and Cleanup Operations Act (hereinafter referred to as the “Ricci Act”) was signed into law.  On or about March 3, 2023, a Petition was filed with the [...] on behalf of several retired and active New Jersey State Troopers.  Pa30.  On or about July 6, 2023, [...] filed his Eligibility Registration Form to register his presence at Ground Zero under the Ricci Act, along with a Request for Amended Benefits Form, Affidavit, joining the previously filed Petition.  Pa56.  Pa58.  Pa60.  Pa80.  On or about July 7, 2023, the [...] administratively denied [...]’s appeal and the matter was transmitted to the [...].  Pa80.  On or about July 26, 2023, the [...] issued an initial decision to deny [...]’s request to register for the Ricci Act.  Pa24.  On or about September 6, 2023, [...] appealed the Board’s initial decision and requested an administrative hearing.  Pa16.  The Board denied an administrative hearing and issued a Final Agency Decision on November 29, 2023.  Pa9.  This appeal ensued.  Pa1.  STATEMENT OF FACTS
[brief] 14  TABLE OF JUDGMENTS  Respondents adopt and incorporate Appellant’s Table of Judgments and offer no supplement.  ### TABLE OF AUTHORITIES  ####  CASES - **Aparicio v. Norfolk & Western Ry. Co.**, 84 F.3d 803, 810 (6th Cir. 1996)........7 - **Beeber v. Norfolk Southern Corp.**, 754 F.Supp. 1364, 1368 (N.D.Ind.1990)....8 - **Brady v. Southern Ry. Co.**, 320 U.S. 476, 483 (1943).................................11 - **Brill v. Guardian Life Ins. Co.**, 142 N.J. 520, 540 (App. Div. 1995)...............5 - **Consolidated Rail Corp. v. Gottshall**, 512 U.S. 532, 543 (1994).....................6 - **CSX Transp., Inc. v. McBride**, 564 U.S. 685, 695-96 (2011).......................6, 7 - **De Pascale v. Pa. R. Co.**, 180 F.2d 825, 827 (3d Cir. 1950).........................8 - **Ellis v. Union Pac. R.R. Co.**, 329 U.S. 649, 653 (1947)..............................6 - **Gallose v.Long Island R.R. Co.**, 878 F.2d 80, 85 (2nd Cir. 1989)...................7 - **Globe Motor Co. v. Igdaley**, 225 N.J. 469, 479 (2016).................................4 - **Middle Dep't Insp. Agency v. Home Ins. Co.**, 154 N.J. Super. 49, 56 (App. Div. 1977), certif. denied, 76 N.J. 234 (1978)..............................................5 - **Polizzi v. New Jersey Transit**, 364 N.J.Super. 323, 332 (App. Div. 2003)......6 - **Raudenbush v. Baltimore & Ohio R.R., D.C.**, 160 F.2d 363, 367 (3rd Cir. 1947).
[brief] “An application for leave to appeal is not mandatory and not necessarily desirable....  Interlocutory appellate review runs counter to a judicial policy that favors an uninterrupted proceeding at the trial level with a single and complete review. ”  *Reldan* at 205, internal cite and quotation omitted.  Further, in *Brundage v. Estate of Carambio*, 195 N.J. 575 (2008), this Court emphasized the court system’s aversion to piecemeal appeals.
[brief] Regarding the duty to register pursuant to the Public Workers Contractor Registration Act, N.J.S.A. 34:11-56.51 sets forth very succinctly, in pertinent part:  ‘No contractor or subcontractor, including a subcontractor not listed in the bid proposal, shall engage in the performance of any public work subject to the contract, unless the contractor or subcontractor is registered pursuant to the act’  The requirement to register derives from the nature of the project being a public work and the identification of the company as a subcontractor.  *The Registration Act* makes no distinction among the varying types of subcontractors and whether they are licensed professionals.  [Id. at *10 (emphasis added). ]  On appeal before the DOL Commissioner, the Commissioner affirmed the Administrative Law Judge’s finding that the licensed surveyor was obligated to be registered under the PWCRA.
[brief] **A Fiduciary Relationship Existed between the Bank and the Plaintiff under the Circumstances Surrounding the Opening of Plaintiff’s Replacement Accounts.  (Raised below in Brief - Trial Judge’s Opinion Pa 8-9)**  The Trial Court asked the parties to address whether under the facts and circumstances of this case, the Bank was in a fiduciary or special relationship with the Plaintiff such that it had a duty to advise the Plaintiff of the nature of what he was signing and the terms thereof, including inclusion of the arbitration clause, (1T 31-5 to 32-8).  The issue whether a Defendant owes a legal duty or its scope is generally a question of law for the court to decide.  *Carvalho v. Toll Bros. & Developers*, 143 NJ 565, 572 (1996); Kelly v. Gwinnell, 96 NJ 538, 552 (1984).  The determination of the existence of a “duty to exercise reasonable care to avoid a risk of harm to another ... is one of fairness and public policy that implicates many factors”.  Carvalho, supra, 143 NJ at 572.  In a case in which the legal relationship is clearly defined, common law classifications can be useful in determining the existence and scope of the duty of care owed.  Id.  While there is no presumed fiduciary relationship between a Bank and its customers, one can be implied in law depending on the specific factual situation surrounding the transaction and the relationship of the parties United Jersey Bank v. Kensey, 306 NJ Super 540, 552 (App. Div. 1997).
[brief] (Da267-81).  The Probate Court ordered that [...] was barred from asserting any claim to the property at issue except as provided for in Paragraph 24(F) of the Settlement Agreement (which, as described below, relates to a separate interest in the Palm Beach Property that passed to [...] from her late grandfather).  (Da281).  The Probate Court further held that [...] breached the Settlement Agreement, and awarded [...] attorneys’ fees under the Settlement Agreement’s fee shifting provision.  (\textit{Id.}).  The Probate Court denied Plaintiff’s remaining requests.  On March 8, 2024, the Probate Court further issued an order and opinion awarding [...] $279,596.02 in fees and costs.  (Da282).  ---  \(^1\)  At least part of [...]’s request seems aimed towards obtaining injunctive relief instead of declaratory relief under the New Jersey Declaratory Judgment Act, 2:16:50, \textit{et seq}.  This procedural issue was not addressed below.  \(^2\)  Transcripts are designated as follows:  1T: July 15, 2022  2T: December 16, 2022  3T: November 6, 2023 (fees only)  STATEMENT OF FACTS
[brief] But [...] rejected defendant’s purported show of remorse, (5T22-15 to 23-4), and his youth was already accounted for in both mitigating factor (14) and the court’s consideration of the Miller factors, making repetitive use of it inappropriate.  See State v. Teat, 233 N.J. Super. 368, 372-73 (App. Div. 1989) (observing that “[d]ouble counting mitigating factors distorts the sentencing guidelines as much as double counting aggravating factors.).  Conclusion
[directive] Bail Ranges for attempts or conspiracies should generally be the same as the actual substantive crime.  Statute Charge Description  Degree  Bail Range 10%  Cash Bail Option  Disorderly Persons  $500 to $1,000 10% permissible  a.  Actor enters or surreptitiously remains in any structure or separately secured or occupied Unlicensed Entry portion thereof; disorderly persons offense. of Structures; 2C:18-3(a)(b)  Defiant Trespass  b.  Defiant trespass.  Actor not licensed or privileged enters or remains in any place where Petty Disorderly notice is given by communication, posting or fencing; petty disorderly persons offense.  $100 to $500 10% permissible
[brief] See Model Criminal Jury Charge, Unlawful Possession of a Handgun, at 4.  The failure to instruct the jury on this essential element of the offense renders the jury verdict on this count invalid.  The gun possession charge must be reversed.  R. 2:10-2; U.S. Const. amends. VI and XIV; N.J. Const. art. I, pars. 1, 9, 10.  A trial court’s 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.  State v. Federico, 103 N.J. 169, 176 (1986).  This is so because the absence of a correct jury instruction on an element means that there can be no proper jury finding of that element, even if it is uncontested or conceded.  State v. Vick, 117 N.J. 288, 291 (1989).  “[T]here is simply no substitute for a jury verdict” on every element of a crime.  Ibid.  The Sixth Amendment guarantees no less.  State v. Vick illustrates this foundational, constitutional requirement to instruct the jury on every single element of an offense.  In Vick, the Supreme Court reversed the defendant’s conviction for gun possession when the judge failed to instruct the jury that the State had to prove that the defendant did not have a permit to carry the gun.  Id. at 290.  The Court reversed in Vick, even though there was no dispute whatsoever about defendant’s lack of a gun permit.  _Id._ at 290-92.  Not only was the absence of a permit not disputed, but “the absence of a permit was inherent in the defense,” such that based on the defense, “defendant could not possibly have had a permit for the weapon. ”  _Id._ at 290-91.  The Court recognized that “it is difficult to explain why juries should be required to make a finding of what seems to be the obvious,” yet ultimately held that “there is simply no substitute for a jury verdict. ”  _Id._ at 291.  The Court concluded that a retrial would “seem such a waste,” given the trial evidence.  _Id._ at 292.  However, the Court concluded that the need to instruct the jury on every element of an offense is a requirement “so basic and so fundamental that it admits of no exception no matter how inconsequential the circumstances. ”  _Id._ at 292-93.  Here, as in _Vick_, the trial court erroneously omitted an instruction on the third element of the gun possession offense — that the State must prove [...] did not have a gun permit.  As seen in _Vick_, it is always harmful error to fail to instruct the jury on an element of the offense, even when that element is uncontested.  Thus, as in _Vick_, the gun possession conviction must be reversed.
[brief] THE COURT: -- both sides?  JUROR NO. 12:  I was disappointed and concerned because I don't want to interrupt the process.  But I'm comfortable, you know, the main objective.  THE COURT:  Does your husband understand that he can't be coming home and blurting things out to you now?  JUROR NO. 12: Yes, that's very clear.  THE COURT:  So let's say the evidence showed that the State just could not prove the charges beyond a reasonable doubt, at the end of the day, you're just not convinced.