ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] ## Federal Cases  **Smith v. Spizzirri,** 601 U.S. 472 (2024)  ...........................................................................................................15  ## State Cases **257-261 20th Ave. Realty, LLC v. Roberto,** 477 N.J. Super. 339 (App. Div. 2023)  ..................................................................................8  **Alfano v. BDO Seidman, LLP,** 393 N.J. Super. 560 (App. Div. 2007)  ..................................................................................15  **Antonucci v. Curvature Newco, Inc.,** 470 N.J. Super. 553 (App. Div. 2022) ..................................................................................16 **Atalese v. U.S. Legal Servs. Grp., L.P.,** 219 N.J. 430 (2014) ..............................................................................................................10, 11 **Brown v. Allied Plumbing & Heating Co.,** 129 N.J.L. 442 (Sup. Ct. 1943) .............................................................................................7 **Cervalin v. Universal Glob., Inc.,** No. A-0974-20, 2021 WL 2793593 (N.J. Super. Ct. App. Div. July 6, 2021) (unpublished) ........................................................................................................16 **ConnectOne Bank v. Bergen Protective Sys., Inc.,** No. A-0468-20, 2021 WL 5045440 (N.J. Super. Ct. App. Div. Nov. 1, 2021) (unpublished) ........................................................................................................15 **Delaney v. Dickey,** 244 N.J. 466 (2020) ..............................................................................................................12 **Finderne Heights Condo. Ass’n, Inc. v. Rabinowitz,** 390 N.J. Super. 154 (App. Div. 2007) ..................................................................................14 **Frantzen v. Howard,** 132 N.J. Super. 226 (App. Div. 1975) ..................................................................................5 Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174 (2013) .................................................................11, 12 Jacobs v. Mark Lindsay & Son Plumbing & Heating, Inc., 458 N.J. Super. 194 (App. Div. 2019) ..............................................7 Jefferson v. Midland Credit Mgmt., Inc., No. A-0535-21, 2022 WL 2351711 (N.J. Super. Ct. App. Div. June 30, 2022) (unpublished) ..................................................................16 Kernahan v. Home Warranty Adm’r of Fla., Inc., 236 N.J. 301 (2019) ........................................................................11 New Jersey Sch. Const. Corp. v. Lopez, 412 N.J. Super. 298 (App. Div. 2010) ..................................................7 Parker v. City of Trenton, 382 N.J. Super. 454 (App. Div. 2006)
[directive] 1.  The juvenile’s age and maturity; 2. The nature and circumstances of the offense; 3.  The juvenile’s prior history of juvenile adjudications and/or stationhouse adjustments, with a presumption against authorizing a stationhouse adjustment for any juvenile previously adjudicated for a first- or second-degree offense; 4.  The willingness of the juvenile to adhere to the proposed terms of the stationhouse adjustment; and 5.  Where relevant, the support and cooperation of the victim and the juvenile’s parent, or guardian/caregiver/designee.  D.
[brief] [...] nonetheless had reasonable suspicion to deploy the K-9 in this case because under the totality of the circumstances, [...] had lied to [...] several times that there was nothing in the back of her truck, she and [...] were traveling across the country in a vehicle owned by a third person where they claimed that they were going to pick up a car but did not possess a trailer or a car dolly, to haul the car back.  (Da21; 1T29-15 to 30-1).
[brief] On page 2 of the December Terms is the bolded heading “Arbitration Agreement” in a font size substantially larger than the surrounding text.  (Da81.)  The first sentence describes, in plain language, the effects of the Arbitration Agreement:  “By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against [...] on an individual basis in arbitration as set forth in this Arbitration Agreement. ”  (Id.)  Next, Section (2)(a), titled in large, bold font “Agreement to Binding Arbitration Between You and [...],” states in relevant part that:  You and [...] agree that any dispute, claim or controversy in any way arising out of or relating to … (ii) your access to or use of the Services at any time, [or] (iii) incidents or accidents resulting in personal injury that you allege occurred in connection with your use of the Services … will be settled by binding arbitration between you and [...], and not in a court of law.
[brief] Id.  But here, it is clear that the police initiated the renewed conversation by waiting until defendant had invoked his right to silence and then asking questions about the sneaker, which was clearly a piece of evidence.  They did not precede that reinitiation of interrogation with new warnings.  Defendant did not spontaneously indicate he wanted to speak to police.  Rather, he did it in response to questions about the sneaker after defendant had invoked his right to silence.  The judge’s approach below was legally absurd and untenable.  She was attempting the impossible: splitting the encounter into questions followed by allegedly spontaneous statements -- that were actually in response to the questions -- and then followed by more questions which were followed, in the judge’s estimation, by more spontaneous statements, that were actually responses to questions.  Plain and simple, the police were interrogating defendant about the sneaker.  The test for whether police conduct constitutes “interrogation” is “whether ‘a suspect’s incriminating response was the product of words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response. ’”  *State v. Ward*, 240 N.J. Super. 412, 417 (App. Div. 1990), quoting *Rhode Island v. Innis*, 446 U.S. 291, 303 (1980).  Police conduct constitutes interrogation when officers “ask questions or make statements which open up a more generalized discussion relating directly or indirectly to the investigation. ”  *Ward*, 240 N.J. Super. at 419; *State v. Wright*, 444 N.J. Super. 347, 366-67 (App. Div. 2016).  That is obviously what was done here, without new *Miranda* warnings, in direct violation of *Hartley*.  Because the error of admitting this statement is obvious and was not harmless beyond a reasonable doubt, the defendant’s convictions should be reversed and the matter remanded for a retrial at which this statement is excluded from evidence.
[brief] ”  State v. Watts, 223 N.J. 503, 513 (2015).  “‘Warrantless searches are presumptively unreasonable,’” and “the State bears the burden of proving by a preponderance of the evidence not only that the [warrantless] search or seizure was premised on probable cause, but also that it ‘fell] within one of the few well-delineated exceptions to the warrant requirement. ’”  State v. Bryant, 227 N.J. 60, 69-70 (2016) (quoting State v. Johnson, 193 N.J. 528, 552 (2008)).  Consent to search is a “long-recognized” exception to the warrant requirement.  State v. Coles, 218 N.J. 322, 337 (2014).  Consent searches of motor vehicles that are pulled over by police are valid only if (1) “there is a reasonable and articulable basis beyond the initial valid motor vehicle stop to continue the detention after completion of the valid traffic stop,” State v. Carty, 170 N.J. 632, 647 (2002); and (2) the consent is “given knowingly and voluntarily,” id. at 639.  The linchpin to voluntary consent “is whether a person has knowingly waived [her] right to refuse to consent to the search. ”  *State v. Domicz*, 188 N.J. 285, 308 (2006) (citing *State v. Johnson*, 68 N.J. 349, 353-54 (1975)).  The burden is on the State to prove “that the individual giving consent knew that he or she ‘had a choice in the matter. ’”  *Carty*, 170 N.J. at 639 (quoting *Johnson*, 68 N.J. at 354).  Specifically, the consenting individual must have been aware of her right to refuse, before giving consent.  *Johnson*, 68 N.J. at 354.  In *State v. King*, 44 N.J. 346, 352-53 (1965), the Court delineated factors for use by our courts in considering the voluntariness of consent.
[brief] [Id. at 167.]  Both testimonial and MVR evidence bear out the prosecution’s inability to prove that [...] was under the influence of alcohol beyond a reasonable doubt.  Indeed, video in this case is “equal or superior to testimonial evidence. ”  State v. Stein, 225 N.J. 582, 596 (2016).  In making his determination to arrest [...], [...] relied on three factors: the red-light infraction, what he called an odor of alcohol with the confirming admission made in a “slightly delayed” response not noticeable on MVR and in SFST.  He delivers an opinion of alcohol impairment, couched as suspicion-understandable given the odor, admission, and traffic violation.  But his reliance on SFST raises doubt and fails to prove [...]’s guilt for several reasons: First, the purpose of SFST is not to prove the influence of alcohol but merely to assist an officer in making an arrest decision.  Second, [...] was unfamiliar with SFST.  While “practice makes perfect”—[...] had academy training and took a five-day course in which to learn these tests and practiced them at least 10 times or more outside of class during his short career—[...] had neither training nor experience with SFST.  Third, while [...]’s decision to attempt these tests was supposedly voluntary, [...] never gave him an option, insisting that [...] attempt them despite the weather conditions, and [...] was not free to leave.  Fourth, OLS and W&T required [...] to stand in abnormal unusual ways that induce signs of impairment, whether from alcohol, nervousness, tiredness, distraction, or other reason, and nothing in evidence ruled out these innocent explanations for alleged impairment.
[brief] This matter arises out of an incident that occurred on March 26, 2015, on a truck route in The City of [...] (hereinafter “[...]”).  [Da35 & 5T136:1 to 84:8]  Respondent, [...], was attempting to travel beneath an unmarked overpass when the top of Respondent’s truck struck the overpass due to improper signage and/or the appropriate signs and warning missing from the overpass and a proceeding exit.  [Id.]  As a result of the collision, Respondent was caused to suffer serious and permanent injuries.  [Da35 & 5T36:1 to 84:8 & Da185]  Respondent alleged that Appellant, [...], was negligent relating to the signing in connection with the overpass.  [Id.]  PROCEDURAL HISTORY
[brief] I will refer to this condition as the pre-existing condition.  There are different rules for awarding damages depending upon whether the pre-existing condition was or was not causing Plaintiff any harm or symptoms at the time of this accident.  Obviously, the Defendant in this case is not responsible for any pre-existing condition of the Plaintiff.  As a result, you may not award any money in this case for damages attributable solely to any pre-existing condition.  If you find that Plaintiff’s pre-existing condition was not causing her any harm or symptoms at the time of the accident, but that the pre-existing condition combined with injuries occurred in the accident to cause or damage, then the Plaintiff is entitled to recover to the full extent of the damages she sustained.
[brief] ” ([...] Decl. Ex. 1 at 9.)  Courts in this Circuit have consistently concluded that similar language constitutes a “clear and unmistakable” delegation.  See, e.g., Kai Peng v. Uber Techs., Inc., 237 F. Supp. 3d 36, 53 (E.D.N.Y. 2017) (“The delegation clause’s language that an arbitrator will decide disputes ‘arising out of or relating to interpretation or application of this Arbitration Provision, including [its] enforceability, revocability or validity,’ clearly and unmistakably delegates the gateway issues to the arbitrator.
[brief] ”  Id. at 288.  That suggestiveness does not need to be “impermissible,” as the State asserts in its brief.  Here, and contrary to the State’s claims, [...] met that low, threshold showing of “some evidence of suggestiveness” because of features of this identification procedure that were in the control of the police: the detective’s conduct after [...] did not recognize anyone, and the detective’s conduct after [...] eventually did pick a photo.
[directive] Si usted se esta declarando culpable de tal cargo, el periodo minimo obligatorio sin posibilidades de libertad condicional es de __ afios y __ meses (Ilene la cantidad de afios/meses) y el periodo maximo sin posibilidades de. libertad condicional podra ser de __ afios y __ meses (Ilene la cantidad de afios/meses) y este periodo no se podra reducir por creditos por buen comportamiento, trabajo o custodia minima.
[directive] The provisions of this Directive and the Use of Force policy shall be severable.  If any Severability. phrase, clause, sentence or provision of either this Directive or the Use of Force Policy is declared by a court of competent jurisdiction to be invalid, the validity of the remainder of either document shall not be affected.  C.  Any questions concerning the interpretation or implementation of this Directive or the Use Questions. of Force Policy shall be addressed to the [...], or their designee.  D.  This Directive shall take effect and remain in force and effect unless and Effective date. immediately until it is repealed, amended, or superseded by Order of the [...].
[brief] Ibid.  But those are actions inherent to transgender, gender non-conforming, and non-binary students, which is why the policy mentions them specifically.  (Da128; 152-53).  Indeed, a school policy that disfavors Jews who observe the Sabbath would facially discriminate against Jewish people, even if not exclusively by dint of religious “status. ”  Appellants engage in differential treatment on the basis of gender identity.
[brief] Assuming [...]’s Counterclaim relates back to [...]’s institution of this lawsuit in 2021, the clock for the statutory 30-year period began running in 1991.  [...]’s “proofs” are at least 24 years short of the required continuity period to support a claim for adverse possession.  [...] has not produced any documents to support its claim of continuous possession for the years 1991, 1992, 1993, 1994, 1995, 1996, 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2010, 2014, 2015, 2016, 2017, 2018 or 2019.  [...] also has not provided any proof that its possession of the Property continued uninterrupted for the entire 30-year statutory period.  [...] also cannot avail the tacking argument because it has not produced any evidence in discovery that the tacking rule would even apply to this case.
[brief] (Pa1355-1417)  It is self-evidently irrational for the trial court to opine that an appellant must inform the reviewing court of all issues, even the ones that are not on appeal or have no bearing on the proper consideration of the arguments raised on appeal.  “A party on appeal is obliged to provide the court with such other parts of the record . . . as are essential to the proper considerations of the issues. ”  Society Hill Con. v. Society Hill A., 347 N.J. Super. 163, 177 (App. Div. 2002).  Further, the trial court’s conclusion that the appellant must apprise the Appellant Division of all issues by providing the complete transcript is contrary to the counsel of the Supreme Court - “[W]e encourage courts to restrict the required portions of a transcript to the minimum necessary for that review, thereby minimizing the impact on the public fisc.  See R. 2:5-3(c)”  In the Matter of Adoption of a Child by J.D.S, 176 N.J. 154, 159 (2003).  While I fully recognize that the Court issued the advisory in the context of an indigent parent facing termination of parental rights, the context does not invalidate the underlying universal rationale that requiring an appellant to provide the complete transcript despite the relevance of only a subset of the transcript and for the Appellate Division to review the redundant full transcript is a needless waste of both the appellant’s and judicial resources.  I note that the Supreme Court’s holding in *In re Adoption of a Child by J.D.S.* on the requirement to provide only necessary transcripts is judiciously consistent with the Federal Rule of Appellate Procedure 10(b) rather than the New Jersey Rule 2:5-3(b).  “Within 14 days after filing the notice of appeal … the appellant must do either of the following: (A) order from the reporter a transcript of such parts of the proceedings not already on file as the appellant considers necessary …; or (B) file a certificate stating that no transcript will be ordered. ”  Fed. R. App. P. 10(b)(1) (emphasis added).  In contrast that defies logic, Rule 2:5-3(b) by default indiscriminately requires an appellant to order the transcript of “entire proceedings” regardless of whether the specified grounds of appeal require a complete transcript or not.  **POINT IX**
[brief] (Pa124-130).  The ALJ pointed out the Board’s erroneous interpretation of N.J.S.A. 43:16A-8(2), stating:  Any beneficiary under the age of 55 years who has been retired on a disability retirement allowance under this act, on his request shall, or upon the request of the retirement system may, be given a medical examination and he shall submit to regular or assigned duties and that such disability was not the result of the member’s willful negligence and that such member is mentally or physically incapacitated for the performance of his usual duty and of any other available duty in the department which his employer is willing to assign to him.  The application to accomplish such retirement must be filed within five years of the original traumatic event, but the board of trustees may consider an application filed after the five-year period if it can be factually demonstrated to the satisfaction of the board of trustees that the disability is due to the accident and the filing was not accomplished within the five-year period due to a delayed manifestation of the disability or to other circumstances beyond the control of the member.  N.J.S.A. 43:16A-7(a)(1).  The ALJ indicated further that the Board had also erred in every respect in interpreting the remedial aspects of the statutes including but not limited to N.J.S.A. 43:16A-8(2) that governed over its authority, stating:  [T]he Board is attempting to use this language as a means by which to block a member’s accidental disability application from being processed.  In its denial letter, the Board does not address any of the statutorily provided determinative factors regarding accidental disability retirement benefits.  See Richardson v. Bd. of Trs., Police & Firemen’s Ret. Sys., 192 N.J. 189 (2007).  Instead, the Board relies on a hypothetical situation wherein [...] is granted benefits, subsequently recovers from his disability, applies to become re-employed by his former employer, and is ultimately denied employment by said employer due to the language of the previously entered into settlement agreement.  Thus, the Board is attempting to use the language of N.J.S.A. 43:16A-8(2) as a means by which to bar a member from applying for benefits.  The ALJ further rejected the Board’s other reasonings by stating:
[brief] In the past, New Jersey’s municipalities were guided by the broad grants of authority under N.J.S.A. 40:48-1 (providing the ability to adopt ordinances that “Regulate the ringing of bells and the crying of goods and other commodities for sale at auction or otherwise, and to prevent disturbing noises”) and N.J.S.A. 40:48-2 (providing for the adoption of other “necessary and proper” ordinances for health, safety and welfare) in crafting localized noise ordinances.  Those general provisions were “further refined” by the Noise Control Act of 1971 (the “NCA”), codified at N.J.S.A. 13:1G-1 to -23, which provides for the adoption and enforcement of noise standards throughout the State.  See *State v. Krause*, 399 N.J. Super. 579, 582 (App. Div. 2008).
[brief] Defendant contends that he cannot be sentenced as a second offender because at the time of the commission of the offense leading to the second conviction, he had not then received the mandated oral advice by the court of the penalties for a second, third or subsequent violation.  The basis for this position is the language in the statute providing that the failure of the court to provide defendant with written notice is not a defense to a subsequent charge, coupled with silence of the statute as to the effect of a failure to so notify the defendant orally.  Defendant posits that this legislative silence signifies an intention to bar sentencing as a subsequent offender without, minimally, an oral advisement of the penalties for a second, third or subsequent violation.  We disagree.  To do so would frustrate the obvious legislative intent to provide enhanced penalties for each subsequent conviction of the statute.  We would then reward the defendant who intentionally or negligently fails to appear in court and subsequently violates the statute because he could not then be sentenced as a subsequent offender.  [Id. at 478][Emphasis added.]  The Appellate Division, therefore, determined that even if the lower court fails to comply with the oral requirement portion of the statute, it is not a basis to grant a Defendant relief from the required enhanced penalties and it is not a defense to a subsequent charge.
[directive] Proceeding  Bail for listed offenses may only be posted by full cash, or a surety bond executed by an authorized corporation under Chapter 31 of Title 17 of the Revised Statutes, or a bail bond secured by real property situated in New Jersey with an unencumbered equity equal to the amount of bail undertaken plus $20,000.  “Crimes with bail restrictions” means a crime of the first or second degree charged under any of the following sections: murder, manslaughter, kidnapping, sexual assault, robbery, carjacking, arson and related offenses, causing or risking widespread injury or damage, burglary, theft by extortion, endangering the welfare of children, resisting arrest, eluding officer, escape, corrupting or influencing a jury, possession of weapons for unlawful purposes, weapons training for illegal activities, soliciting or recruiting gang members, and human trafficking.
[brief] (Vol. 1 Pa. 83; [...] Dep. TR 71-20 to 24).  In December of 2017, a month prior to the transfer of [...] by [...] to the current owner, Dr [...] went to MHA’s accounting employee, subsequently identified as [...] and asked her the amount he was owed by MHA for services performed in all his positions.  (Pa.76; [...] Dep. TR 48-7 to 49-12).  After reviewing ledgers, [...] advised Dr. [...] in December of 2017 that he was owed $255,000.([...] Deposition attached to the [...] Certification as Exhibit F, TR 49-7 to 13).  Prior to December of 2017, Dr. [...] would ask [...] on a monthly basis from 2013 until December of 2017 about the amount he was owed by MHA and [...] would always consult the ledger and advise Dr. Zhellandkovah of the amount MHA owed Dr. [...].(Volume I Pa. 76; [...] Dep. TR 48-24 to 49-10).
[directive] In addition, this 2 Directive neither governs the Division of Law in its representation of client agencies outside the Department of Law & Public Safety nor applies to those client agencies directly.  However, the Directive may be considered instructive in circumstances where it is not binding.  2 appropriate confidentiality can be maintained.  Agencies also may use other methods – such as email and smartphone apps – to further increase accessibility.  Agencies should accept – and investigate when appropriate – complaints or tips that are submitted anonymously or by a third party other than the victim.  Although agencies may be unable to provide relief to individual victims in such cases, accepting anonymous and third-party complaints and tips may help agencies to identify and address misconduct affecting more than one victim and misconduct targeting underserved communities who lack trust in government agencies.