ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] LEGAL ARGUMENT POINT I THE TRIAL COURT CORRECTLY HELD THAT WESTFIELD’S ORDINANCE IS PREEMPTED UNDER STATE LAW (Da0006-0007)  A.  The trial court properly held that the Supreme Court’s decision In re [...] required a finding of preemption.  The legal issue presented by [...]’s prerogative writ action was the validity of [...]’s Ordinance purporting to regulate the placement and height of electric utility poles on public rights of way.  The threshold question raised by [...] in its motion for summary judgment was whether the Ordinance was rendered without force and effect by operation of the legal doctrine of preemption.  In determining this question, the trial court’s inquiry ends, as [...] would not have the power to enact such an Ordinance.  Under well-settled principles of New Jersey law, the doctrine of preemption precludes municipal regulation when supervening statutes and state regulations occupy the field and leave no room for municipal regulation.  Preemption “is a judicially created principle based on the proposition that a municipality, which is an agent of the State, cannot act contrary to the State. ”  Overlook Terrace Mgmt. Corp. v. Rent Control Bd. of Town of W. N.Y., 71 N.J. 451, 461 (1976).  Applying this principle, a court will “declare an ordinance invalid if it . . . is preempted by superior legal authority[.]”  Rumson Estates, Inc. v. Mayor & Council of Borough of Fair Haven, 177 N.J. 338, 351 (2003).  The trial court properly determined this threshold question and granted summary judgment in favor of [...], finding the Ordinance preempted by state law.
[brief] Respondent continues to cling to one lone entry in one lone record as evidence of a 2009 incident or accident.  [...]’s uncontradicted testimony at the hearing showed:  1.  From his start in law enforcement in April of 1989 but prior to October 17, 2015, [...] was never involved in any off-duty motor vehicle accidents in which he was injured.  (1T20-21).  2.  From his start in law enforcement in April of 1989 but prior to October 17, 2015, [...] was never involved in any off duty falldowns in which he was injured.  (1T21).  3.  From his start in law enforcement in April of 1989 but prior to October 17, 2015, [...] was never involved in any off-duty fights, assaults, or muggings in which he was injured.  (1T21).  4.  From his start in law enforcement in April of 1989 but prior to October 17, 2015, [...] was never involved in any off-duty sporting events in which he was injured.  (1T20-21).  5.  [...] filed no workers’ compensation claims while employed with the [...].  (1T21).  6.  [...] filed one workers’ compensation claim while employed with the [...].  (1T22).  7.  [...] injured the pinky finger on his right hand.  (1T22-23).  8.  [...] needed surgery and returned to full duty in about 30 days.  (1T23).  9.  [...] filed two workers’ compensation cases while employed with the [...].  (1T23-24).  10.
[brief] **No lesser-included offenses were clearly indicated from the record.**  [...] died from blunt force trauma to the head, due to two distinct beatings with a five-pound wine chiller.  The pathologist’s examination revealed multiple head injuries, encompassing seven to nine lacerations and three to four depressed fractures on the skull.  The repetitive use of such a weighty object strongly implies an intentional act.  Also, the record lacks any evidence supporting the notion that defendant acted out of a passionate response.  Even if one were to consider her self-serving statements suggesting a belief that [...] intended to poison her, defendant neither cooked nor consumed any of the food.  In her confession, she said [...] asked why she was killing her, yet she persisted.  Consequently it does not rise to passion provocation manslaughter.  The judge was thus not compelled to sift through the record to find grounds for unrequested charges.  The evidence did not clearly indicate that this crime was anything other than knowing or purposeful murder, and thus, the judge was not required to sua sponte charge any lesser-included offenses.
[brief] While the 2020 Action included new causes of action for alleged concealment of evidence, those claims all related to the same Pork Chop Hill Assemblage transaction that formed the basis for the 2015 Action.  Thus, the 2015 Action and the 2020 Action involved the same (or at least substantially the same) parties, claims, and legal issues.  Finally, dismissal of the 2020 Action in deference to the then still-pending 2015 Action in no way deprived Plaintiffs-Appellants of an opportunity for adequate relief, which they had the right to continue to pursue against [...] and [...] in the 2015 Action.
[brief] Further, “[a] prosecutor is not forced to idly sit as a defense attorney attacks the credibility of the State's witnesses; a response is permitted. ”  *State v. Hawk*, 327 N.J. Super. 276, 284 (App. Div. 2000).  “Generally, remarks by a prosecutor, made in response to remarks by opposing counsel are harmless[.]”  *Id.* at 284-85.  Against these principles, defendant’s argument lacks merit.
[brief] THE $503,000 SANCTION AGAINST [...] WAS AN ABUSE OF DISCRETION AND MISAPPLICATION OF LAW (1T46:25-47:6) (3T13-24:14-12)(3T32:19-33:16)(Pa3155)  Relief under *Rule* 1:10-3, "is not for the purpose of punishment, but as a coercive measure to facilitate the enforcement of" the order a party has violated.  *Ridley v. Dennison*, 298 N.J. Super. 373, 381, 689 A.2d 793 (App. Div. The scope of relief awarded must be "limited to remediation of the violation."  Abbott v. Burke, 206 N.J. 332, 371, 20 A.3d 1018 (2011); Bd. of Educ. of the Twp. of Middletown v. Middletown Twp. Educ. Ass'n, 352 N.J. Super. 501, 509 (Ch. Div. 2001).
[directive] Pursuant to N.J.S.A. 2A:156A-4b, a law enforcement officer may intercept and record a wire or oral communication using a body transmitter if that officer is a party to the communication or where another officer who is a party requests or requires that such interception be made.  Individual departmental or agency policy dictates procedures for such recordings.  This kind of law enforcement non-third party intercept can be used during internal affairs investigations.  7.9.5
[brief] 3T116:19-117:4.  More specifically, [...] testified that he had this conversation with [...] at or around the time that the Mall was completed in 2009.  2T46:10-14.  [...] confirmed that, under the Construction Phasing Schedule in the Redevelopment Agreement, the Authority was supposed to commence construction of the Authority Garage at the same time Center City began construction of the Mall.  2T51:4-6.  Because that alleged conversation took place when the Mall was almost completed, [...] admitted that the Authority Garage was already eighteen months behind schedule.  2T51:7-15.  [...] also acknowledged that, under the scheduling plan set forth in the Redevelopment Agreement, the Authority Garage was supposed to be completed four months before the Mall completion and, therefore, by the time of this alleged conversation between [...] and [...], the Authority Garage was to have been completed.
[brief] The proposition cited by the Borough – i.e., that there is a presumption that property owners abutting a \textit{public} street own title up to the middle of the roadbed – is only relevant to the question of what happens if the road is vacated by the Borough or taken by eminent domain, neither of which is at issue here.  Further, the area described in the 2005 Map as “existing access easement to remain” does not indicate that some unknown party has title to, or an interest in, the Roads.  (Da171.)
[brief] Ja525-26.  On January 19, 2024, the trial court heard oral argument on the motions.  The court issued an Order on January 29, 2024, granting Defendant insurers’ motions to dismiss Plaintiff’s coverage action with prejudice, and denying Plaintiff’s cross-motion for partial summary judgment.  Ja1-3.  The trial court’s order was accompanied by a thirteen-page written decision analyzing the issues and stating the court’s reasoning in dismissing Plaintiff’s claims for insurance coverage.  Ja4-16.  Plaintiff filed a timely Notice of Appeal on March 5, 2024.
[brief] Only one issue is similar to this case: The order incorrectly marked plaintiff's motion as "unopposed."  Defendants filed a motion for reconsideration on January 19, 2011.  The court heard oral argument on February 4, 2011 ….  [T]he same date, the court indicated that defendants' previously-filed opposition had now been considered … and the court … deny[ed] defendants' motion [for reconsideration]  ....  Id at p. 6.  18  A list of the entire quotes is available at Pa406-07.  Here, [...] never stated he considered the earlier filed Opposition but he did state the reasons would be “the exact same reasons [as for Absecon]” (4T-3-24 to 4-1).  His Honor did not have to re-read my Opposition, I just wanted the record corrected for the dirty trick, since “unopposed” may bar appeal.  I think this dearth of “mistake” cases makes it clear these types of errors are addressed and remediated below.  This Court should not have to be “sorting out” obvious mistakes.  Still, Portofino is clear: fix mistakes and do justice.
[directive] In deciding whether to de-activate the BWC, the officer shall consider the privacy interests of the person requesting de-activation and the person in need of medical assistance.  6.3  Procedures for De-Activation Upon a Civilian’s Request.  When an officer de-activates a BWC pursuant to Section 6.1 or 6.2, the following procedures shall be followed: 1) the discussion between the officer and the civilian concerning the request for de-activation shall be electronically recorded; 2) the officer before de-activating the BWC shall narrate the circumstances of the de-activation (e.g., “I am now turning off my BWC as per the victim’s request.
[brief] The Trial Court’s Orders granting the Motion to Dismiss filed by Holder Respondents, [...] (“Sherman III”), [...] (“Sherman”), and [...] (“[...]”) and denying Appellant’s Cross-Motion to Vacate Default Judgment, Transfer, and Consolidate are correct and should be affirmed.  The class action complaint (the “Complaint”) in this case was filed against Holder Respondents and co-defendants Sherman III, Sherman, and [...] (collectively, “Respondents”) arising from a credit card debt on which Appellant defaulted.  At a time when the debt in question was owned by [...] (and not Holder Respondents), Appellant contends that he was subject to collection efforts on that debt, and that because Respondents were not licensed in New Jersey, those efforts and the upstream transactions through which [...] acquired the debt were invalid and unlawful.  In this case, Appellant brought claims for violation of the New Jersey Consumer Finance Licensing Act, N.J.S.A. 17:11C-1 *et seq.* (the “NJCFLA”) (under the guise of the Uniform Declaratory Judgments Law, N.J.S.A. 2A:16-50 *et seq.*) (Count I), violation of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 *et seq.* (the “NJCFCA”) (Count II), and unjust enrichment (Count III), without distinguishing among the roles of the various named Respondents or where their respective activities took place.  Indeed, Holder Respondents here are not alleged to have conducted any activities in New Jersey whatsoever, much less to have attempted to collect a debt from Appellant.  Rather, while [...] was the plaintiff in the debt collection action in New Jersey that Plaintiff challenges, [...]’s and [...]’s roles pertained exclusively to acquiring and holding the relevant debt, all entirely outside of New Jersey, and all prior to the debt being owned by [...], much less any enforcement action on it.  The Trial Court’s Orders correctly recognized that Appellants’ claims against *all* Respondents failed as a matter of law because there is no private right of action under the NJCFLA, Appellant failed to state a claim under the NJCFCA, and he failed to plead an ascertainable loss.
[brief] POINT V: The Court erred and abused its judicial discretion in failing to provide Defendant with due process and protection against unreasonable seizure of Defendant’s private property as provided under the NJ Constitution, Article 1, in a manner contrary to the law and the interests of justice and equity.  Re: Order of 5/12/2023 (DA14), Order of 3/30/2023(DA20)  1.  Please recall that the Appellate Court stated in its decision of 6/5/2018, appeal docket no. [...] (DA141):
[brief] As discussed, there was substantial evidence in the record establishing that [...] had matured and rehabilitated.  Conversely, there was no evidence in the record to suggest that [...] had failed to mature, or failed to become rehabilitated.  Because the record clearly demonstrated [...]’s maturity and rehabilitation, it was erroneous for the court to find aggravating factors 3 and 9, and to decline to find mitigating factors 7, 8, and 9.
[brief] As noted, [...] did not testify at trial, nor did any other defense expert.  The State’s response to amicus, filed along with this brief, does not function as a concession of its argument that introduction of such evidence at this stage is inappropriate because the State had no chance to cross-examine an expert at trial.  (2) the field testified to . . . [is] at a state of the art such that an expert’s testimony could be sufficiently reliable; and (3) the witness . . . [has] sufficient expertise to offer the intended testimony.
[directive] This Policy is intended to guide the circumstances under which officers may engage in vehicular pursuits.  High-speed vehicular pursuits create a substantial risk of injury and fatalities.  Over 10% of vehicular pursuits end up in accidents resulting in injuries or fatalities, including to officers, innocent third parties in vehicles unrelated to the pursuit, and pedestrians.  1.2  The pursuit policy was last updated in 2009.  The policy succeeded initially in reducing the number of pursuits, injuries, and fatalities associated with them.  However, after an initial decline, the number of pursuits has been increasing steadily since 2014.  Since the policy was updated there have been almost 4,200 accidents during pursuits that resulted in over 2,800 injuries, including injuries to 625 law enforcement officers, 682 victims in third party vehicles, and 52 pedestrians.  In that same period, there have been 59 fatalities associated with pursuits, including an officer, four third-party drivers, and eight pedestrians.  1.3
[brief] C.  THE OFFENSIVE USE OF COLLATERAL ESTOPPEL AGAINST A CRIMINAL DEFENDANT ON A PRESUMPTIVELY UNLAWFUL SEARCH AND SEIZURE IS GENERALLY INAPPROPRIATE.  There is good reason, generally, for not permitting the State to wield collateral estoppel as a sword against a criminal defendant seeking to suppress the fruits of a presumptively unlawful warrantless search or seizure.  The roots of the use of collateral estoppel in criminal cases have to do with protecting defendants’ Fifth Amendment protection against double jeopardy.  *State v. Redinger*, 64 N.J. 41, 45–46 (1973) (“collateral estoppel, as applied in the federal decisions, must be considered a part of the Fifth Amendment's guarantee against double jeopardy and binding on the states through the Fourteenth Amendment”) (citing *Ashe v. Swenson*, 397 U.S. 436 (1970)); *Brown*, 394 N.J. Super. at 501-02 (“the rule of collateral estoppel is embodied within the Double Jeopardy Clause, protecting a man who has been acquitted from having to ‘run the gauntlet’ a second time) (internal quotations and brackets omitted).  The State’s proposed application of this important constitutional protection is a distortion of those values that serves little justifiable interest.  Perhaps this is why the State has not cited to a single authoritative case condoning this use of collateral estoppel.  The unpublished case relied upon by the State (Plaintiff-Appellant’s Brief at 17-18), *State v. Davis*, has no precedential effect and was not even raised to the trial court.  2010 WL 4056849 (App. Div. July 13, 2010).  Therefore, the trial court cannot have erred for failing to consider it, and the State should not now raise it here.  The interests in that case are also quite different.  That case dealt with a statement, which, unlike this seizure and search, is not presumptively unlawful.  *State v. Nyema*, 249 N.J. 509, 527 (2022) (warrantless searches and seizures are prima facie invalid).  Finally, that defendant was facing multiple related cases in the same county, and, unlike here, that record is devoid of any denied applications to consolidate the actions.  To apply collateral estoppel here would be tantamount to granting the State’s consolidation request and treat these actions like one case when that has been repeatedly denied in [...].  Those circumstances distinguish these cases and render this case a poor one for this Court to announce a new rule blessing the State’s offensive use of collateral estoppel against criminal defendants under circumstances like these.  **CONCLUSION**
[brief] Paragraph 1 provides (Da122):  It is understood that any dispute from medical services rendered by [...], [...] and or any physician nurse or person associated therewith shall be submitted to binding arbitrations and shall not be resolved by a court of law except as New Jersey law provides for judicial review or arbitration discussions.  I understand that a “dispute” means any unresolvable disagreement between the parties, including disputes over contract terms, as well as disputes over rendition of medical services alleged to be unnecessary, unauthorized or improperly, negligently, or incompetently performed.  I specifically understand that by entering into this agreement, both parties voluntarily give up their constitutional right to have such a dispute decided by a court of law before a judge and jury.  Paragraph 2 provides (Da122):  I understand that all claims for damages arising from medical services rendered by [...] and or [...], and/or any associate or substitute physicians, nurses or employee must be arbitrated.  This includes any claim of a spouse, heir, child (born or unborn), or other successor in interest to any such claim.  Paragraph 3 provides terms for selecting an arbitration panel as follows (Da122):  I understand that I must submit a demand to arbitrate a dispute as defined by this agreement in writing.  I also understand that within 30 days of my demand to arbitrate a dispute, the parties must agree on a panel of three arbitrators, one of which must be a medical doctor.  A list of suggested arbitrators shall be supplied by the medical provide upon receipt of the demand to arbitrate.  Should the parties be unable to agree upon the arbitration panel within the 30-days allotted, the medical provider shall make the final decision regarding the panel members.  It is further understood that each party shall bear their own costs, including the cost of their own legal counsel, as well as any other expenses incurred for their own benefit.  Each party shall bear their pro rata share of all other arbitration costs, including, but not limited of [sic] the cost to retain the arbitrators.
[brief] And here comes common sense again.  Isn't it interesting that the DOH, whose job it is to make sure that facilities comply, found none?  They were in compliance.  Instead, counsel or [...] told you -- or they will tell you that the state of New Jersey did a poor investigation.  And we don't know what they did, they say, and you can't use that, it's not trustworthy.  But if there had been violations in the face of a dead patient -- that's why they went there.  They had that information.  They would have found a violation, if there was one, and they didn't find a single one.  11T94:1-14.
[brief] CONCLUSION  For the reasons set forth above, [...]’s convictions must be reversed.  Respectfully Submitted, [...]  Public Defender Attorney for Defender-Respondent BY: ____________________________  Deputy Public Defender Superior Court of New Jersey  APPELLATE DIVISION DOCKET NO. [...]  CRIMINAL ACTION  STATE OF NEW JERSEY, Plaintiff-Respondent, v. [...], Defendant-Appellant.  On Appeal from a Judgment of Conviction of the Superior Court of New Jersey, Law Division, Essex County.
[directive] Page 2  Enclosed Forms  1.  Certification of Offense Location and Application for Drug Offender Restraining Order  The Act has been amended to require that a law enforcement officer or the prosecuting attorney apply for a restraining order.  2C:35-5.7a., b., c., and d; see also 2C:35-5.9.  N.J.S.A. N.J.S.A.  This may be accomplished by filing the enclosed “Certification of Offense Location and Application for Drug Offender Restraining Order. ”  This one-page form has been designed for use in both juvenile and adult cases.  The submission of this form constitutes the required application for a restraining order under the Act.  The form includes check-off paragraphs that allow a law enforcement officer to request either the presumed 500 foot buffer zone, or a different buffer zone to be described in the form.  Although the form contains citations to all of the offenses covered by the Act, it should be noted that juveniles may not be charged with violations of either N.J.S.A. 2C:35-6 (employing a juvenile in a drug distribution scheme) or 2C:35-8 (distribution to N.J.S.A. person under age 18) since an element of each offense is that the person charged must be at least 18 years of age.  A new section, to be codified as N.J.S.A. 2C:35-5.10, gives specific authority to law enforcement officers to not seek a restraining order if the defendant is charged with an offense resulting from the stop of a motor vehicle, or if the defendant was using public transportation.
[brief] *American Home Products Corp. v. Adriatic Ins. Co.*, 286 N.J. Super. 24, 33 (App. Div. 1995).  This principle is grounded in New Jersey public policy that seeks to avoid “vexatious and oppressive multiple litigation . . . [that] could yield inconsistent results. ”  Bass v. DeVink, 336 N.J. Super 450, 458 (App. Div. 2001).
[brief] APPELLANT’S CONVICTION SHOULD BE OVERTURNED BECAUSE THE COURT ALLOWED DR. DIETZ TO TESTIFY IN DEPTH REGARDING THE ULTIMATE ISSUE AND THE VERACITY OF WITNESSES IN THE CASE (13T:21-8 to 10); (14T:84-19 to 85-7); (14T:118-5 to 12)  .............................................................................................................................................70  a.  [...] was Prejudiced by the Court allowing [...] to Opine on the Veracity of Witnesses Testimony (Not Raised Below)  .......................72  POINT VII .................................................................................................................................76
[brief] First, the judge prevented defendant from introducing into evidence two 2021 photos (D-111 and 112; Da 20) of a surveillance camera on [...] -- with appropriate testimony about the photos -- because, in the judge’s estimation, the photo was unauthenticated and irrelevant because no one could testify that the camera was there in 2019 or that it was operational at that time.  (14T 115-3 to 14; 14T 142-4 to 6; 15T 11-4 to 9; 15T 51-7 to 53-19)  Secondly, the judge precluded defense counsel from introducing photos (D-115 and 116; Da 20) of a walkway leading from the backyards on [...] to the next street over -- [...] -- and from arguing to the jury what was intended to be counsel’s very line of defense: that when the perpetrator ran between 22 and 24 Ellsworth and left the line of sight of police, that person could have run through a backyard onto, or across Edgemere, thereby evading police, who instead mistakenly tackled defendant in front of a house on [...].  (14T 142-6 to 161-20)  Defendant urges on appeal that by refusing both to admit this evidence and to allow that argument, the judge usurped the role of the jury, denied defendant his Sixth Amendment-based right to present a defense as well as his rights to due process and a fair trial under the Fourteenth Amendment and the corresponding provisions of the state constitution.