ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] ’  See id. (quoting Burbridge v. Twp. of Mine Hill, 117 N.J. 376, 385 (1990)).  The record made before the Board is the record upon which the correctness of the Board’s action must be determined.  See id. (quoting Kramer v. Bd. of Adjustment, 45 N.J. 268, 289 (1965)).  In reviewing the record, the decision of the Zoning Board is accorded deference and the courts reverse only if they find that the Board acted arbitrarily, capriciously and unreasonably.  See id. (citing Bressman v. Gash, supra, 131 N.J. at 529 (1993)).  Both this matter and Price v. Himeji, LLC involve appeals from decisions of a municipal zoning board of adjustment where the board’s decision is entitled to deference and their decision will not be disturbed unless they acted arbitrarily, capriciously and unreasonably.  Just like in Price v. Himeji, LLC, the ZBA developed a complete and thorough record consisting of over three hundred (300) pages of transcripts and a fourteen (14) page Resolution of Approval addressing the reasons for granting the variances challenged in Objectors’ complaint.  (Pa496-586; Pa627-761; Pa412-494; Pa099-112).  Likewise, there is no further fact-finding, administrative expertise or discretion involved.  The record is adequate to permit the Appellate Division to conduct a review for abuse of discretion.  Efficiency and public interest militate in favor of bringing a two (2) plus year dispute to a conclusion.  If the Appellate Division extends the deadline to file the complaint in lieu of prerogative writs in the interests of justice under R. 4:69-6 (c), no useful purpose would be served by remanding the matter to the lower courts for their review of a record which is subject to review by this Court.
[brief] Furthermore, if [...]’s trial counsel could have somehow discovered [...]’ Sworn Statement, then he should have.  That is, even if the Sworn Statement could have been discovered by reasonable diligence during [...]’s trial, trial counsel’s failure to discover it “would almost certainly point to ineffective assistance of counsel. ”  Nash, 212 N.J. at 549-50.  For that reason, the New Jersey Supreme Court has stressed, “we would not require a person who is probably innocent to languish in prison because the exculpatory evidence was discoverable and overlooked by a less than reasonably diligent attorney. ”  Id.  Accordingly, “the pertinent question is not whether the evidence was theoretically discoverable at the time of trial, but whether a reasonably diligent attorney would have discovered it prior to trial. ”
[brief] (Pa1061a).  While boarded at [...] for frozen semen collection in 2017 and 2018, [...] would come to [...] to assist in the collection and freezing of [...]’s semen.  (Pa821a – Pa822a).  For the frozen semen collection seasons of 2017 and 2018, [...]’s semen was generally to be collected three to four days each week.  (Pa1063a – Pa1064a; Pa837a).  [...]’s semen was not collected for 10 days between August 21, 2017 and September 1, 2017.
[brief] Defendant has declined to hire numerous employees because of their criminal convictions and, in just the past year, Defendant had disqualified six employees after it had learned of their past criminal convictions or convictions that occurred during their employment.  (Appx 196 at ¶11).  Even in the absence of a clear statutory bar (which is present here), the evidence on the record here places this case squarely under the Cedeno rule.
[brief] That is not true.  To the contrary, the Trial Court did not address that argument as it rejected (correctly) Appellant’s Certification.  20 days prior to the end of the discovery period.  Thereafter, amendments may be allowed only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date.  *O'Donnell v. Ahmed*, 363 N.J. Super. 44 (Super. Ct. 2003).  Appellant’s Certification is still fatally flawed given failure to comply with this basic Rule.  **D.
[directive] Rather, the Act simply provides that hearings be conducted "in an expedited manner."  N.J.S.A. 2C:58-23(a).  · of of light the nature the Act and its stated purpose to address "extreme" risks, In procedures have been developed to address petitions for a temporary extreme risk protective order that are denied by a Municipal Court judge.  The procedures were modeled on the recently of of established procedures, effective October 2019, for a de novo review denials emergent 1, applications for temporary domestic violence restraining orders promulgated by Directive #13-19 of ("Municipal/Family - Immediate De Novo Hearing for the Municipal Court Denial a Domestic Violence Temporary Restraining Order'').  if  Specifically, effective October 2019, a Municipal Court judge denies the petition for a 1, temporary extreme risk protective order, the petitioner can request immediate de novo hearing an by an emergent duty Superior Court judge.  Similar to the process for denials for temporary of restraining orders, the Municipal Court judge must advise the petitioner, on the record, the right of If to immediate review the denial to an on-call Superior Court judge.  the person wishes to an exercise this right, law enforcement shall contact an on-call Superior Court judge.  That Superior Court judge will review the petition and conduct a hearing telephonically to determine whether to If grant or deny the temporary extreme risk protective order.  the person does not want to have an immediate review hearing, the order denying the petition will reflect this decision.  To address of denials  a petition for a temporary extreme risk protective order by a Municipal Court judge prior of to October the petitioner will be advised the ability to go to the Criminal Division of the 1, [...] • [...] • [...]  Directive #19-19 - "Guidelines for Extreme Risk Protective Orders"  August 12, 2019  Page 8  Superior Court the next business day and request a de novo review by a Superior Court judge.  A Superior Court judge will make a determination to grant or deny the petition that same day.  If a Superior Court judge denies the temporary extreme risk protective order, the petitioner can file an appeal to the Appellate Division as of right within 45 days of the entry of that order pursuant to R. 2:2-3(a)(1).
[directive] Page 6 of 29 supplemental questions, proposed by the parties or by the court, which will assist in selecting a fair jury.  Many judges have accumulated a stockpile of supplemental questions they ask in particular circumstances.  For example, in criminal trials, judges typically have certain questions they ask in trials involving drugs, sexual assaults, instances where the defendant and victim are of different races, etc.  Such supplemental questions, of course, are appropriate and should be included.
[brief] c.  No driver of a vehicle or street car shall turn right at an intersecting street marked with a “stop” sign or “yield right of way” sign unless the driver stops and remains stopped for pedestrians crossing the roadway within a marked crosswalk, or at an unmarked crosswalk, into which the driver is turning.  [Emphasis added.]  Here, [...] testified that he observed the Defendant’s vehicle fail to come “to a complete stop” at the stop sign on the intersection of Route 517 and Route 206 north.
[brief] Loper Bright Enters. v. Raimondo, -- U.S. --, 144 S. Ct. 2244, 2263 (2024) (overruling Chevron deference).  Defendant cites the Staff Commentary.  As stated in the Commentary’s “Introduction,” it “is a guideline intended to clarify the staff interpretations of the statute, but does not have the force or effect of statutory provisions. ”  Defendant cites the Staff Commentary’s approval an agent to send validation notices.  A validation notice is a writing required by 15 U.S.C. § 1692g(a) to be sent to the consumer either with or within five days after each debt collector’s initial communication.  *Hernandez v. Williams, Zinman & Parham PC*, 829 F.3d 1068 (9th Cir. 2016).  The Commentary requires the agency relationship be disclosed.  No disclosure was made here.  Defendant’s validation notice (Pa9) do not disclose any agency relationship and there is nothing in the record suggesting the mail vendor is Defendant’s agent.
[brief] It also seeks to reverse the trial court’s dismissal of the First Amended Complaint.  As discussed herein, Appellants’ appeal should be denied as it improperly implores this Court to substitute its discretion for that of the trial court in denying the amendment and inexplicably seeks to resuscitate the First Amended Complaint that asserted no claims against [...].  Given that the First Amended Complaint, although naming [...] as a defendant, asserted no claims against [...], the dismissal should have been with prejudice and [...]’s cross-appeal should be granted.
[brief] See, e.g., Midstate Hauling Co. v. Reliable Ins. Co., 437 F.2d 616, 618 (5th Cir. 1971) (rejecting insurer’s contention the public purposes of the notice statute were satisfied as other insurance was in effect on the date of the accident, and the 30-day notice provision should not apply: “The State has asserted a public interest in the insurance policies of common carriers, and has determined by statute and legislatively authorized Commission rules how that interest shall be protected.  To give effect to the cancellation here would erode the public policy contained in the statute. ”); Vrabel v. Scholler, 94 A.2d 748, 750 (Pa. 1953) (rejecting a lower court ruling which relieved the original insurer from liability on grounds the public interest was protected by replacement insurance obtained on the date of cancellation: “To treat the [replacement] policy as an escape for [...] from its liability under its extant policy would be to gratuitously inject collateral issues, and, hence, confusion, into a question of compliance with the statute’s clear and unequivocal intendment.”).
[brief] Regardless, the standards for consideration of a motion under R. 4:46 are identical to those under R. 4:67-5.  See Wolosoff v. CSI Liquidating Trust, 205 N.J.Super. 349 (App.Div. 1985).  Clearly [...] proffers this argument to overcome its failures in responding to [...]’s motions.  [...] failed to recognize the additional proofs submitted in support of the summary judgment motions and then, attempted to submit a voluminous sur-reply that was untimely and ultimately not considered by the Court.  [...] further failed to respond to the facts that [...] withdrew ten (10) pending med-pay subrogation arbitrations in September 2021 and further, that its counsel was well aware of [...]’s actions as he was counsel for [...] on seven of the ten arbitrations that were withdrawn (Da424-Da425; Da428-Da429; Da448-Da450; Da451-Da455; Da458-Da459; Da463-Da464; Da470-Da475; Da476-Da481 & Da481-Da488).
[brief] ” (TRVa2779.)  Days later, on August 3, 2015, [...] was sent the Project Requirements by [...] along with an e-mail stating, “you need to revise your proposal and add for the insurance. ” (TRVa1491 and TRVa2783.)  With the Project Requirements was a notification that “[...] is also an excluded party under the CCIP[,]” which must “comply with all insurance requirements set forth in the CCIP Insurance [] Manual and Schedule ‘B’ as an excluded party. ”  (ZURa323.)  Critically, on this basis, [...] created Proposal ______________________ Insured, not unenrollment of a specific subcontractor.  (See TRVa2973, form letter, which was not provided in support of [...]’ own Motion below.)  Three, adding back insurance costs for [...]’s work because of its unenrollment.  (TRVa1488.)  The trial court concluded that the above unequivocally demonstrated that [...] was engaged in demolition work and, thus, excluded from the CCIP.
[directive] [Não/No] N.J.S.A. 2009, c. 143).  Se o crime envolve uma violação à lei 2C:24-4b(3) (causar ou N.J.S.A. permitir a participação de menor em ato sexual para fins de fotografia ou publicação), se o crime ocorreu no dia 1º de fevereiro de 2018 ou após esta data, 2C:24-4b(4) N.J.S.A. (fotografar ou filmar um menor em ato sexual), se o crime ocorreu no dia 1º de fevereiro de 2018 ou após esta data, 2C:24-4b(5)(b) (posse intencional ou visualização N.J.S.A. intencional de pornografia infantil), 2C:24-4.1 (líder de rede de pornografia N.J.S.A. infantil), se o crime ocorreu no dia 1º de fevereiro de 2018 ou após esta data, N.J.S.A. 2C:34-3 (venda, distribuição ou exposição de material obsceno a menores de 18 anos) ou se o crime envolve atividades informáticas ilícitas em violação a qualquer disposição do Estatuto 2C, capítulo 20, você deverá pagar uma multa obrigatória conforme listado abaixo por cada crime pelo qual se declara culpado?
[brief] (Da363).  These genuine disputes of fact precluded the Trial Court from deciding this matter summarily without the opportunity for counterclaims and discovery.  (Da1).  The issues before the trial court were improperly presented by way of an Order to Show Cause for the sole purpose of circumventing the parties’ right to due process.  (Da383).  The sale of the Subject Property was not an emergent matter and there were obvious issues of material fact relating to the validity of the proposed sale in contravention of the binding Consent Judgment precluding summary disposition.  (Da179, Da348, Da350, Da356, Da363, Da413, Da416).
[brief] Therefore, the Court held it was permissible for the State to play the defendant’s entire interrogation and to cross-examine him about inconsistencies between his statement to police and testimony at trial.  Id. at 624.  The trial court reasoned that [...] had similarly indicated his willingness to speak to police generally and to give “an affirmative narrative of what he felt he wanted to talk about. ”  (16T:108-13 to 109-10)  The court found [...]’s invocations of his right to silence were “not an attempt to end the dialogue, but rather was part of an ongoing stream of speech. ”  (16T:109-12 to 110-10 (quoting Kucinski, 227 N.J. at 623))
[brief] The trial court was obligated to view the facts on the State’s motion for summary judgment in the light most favorable to the Plaintiffs and to draw all legitimate inferences from the facts in Plaintiffs’ favor.  That clearly did not happen below.  *Globe Motor Co. v. Igdalev*, 225 N.J. 469, 481 (2016) (citing *Bhagat v. Bhagat*, 217 N.J. 22, 38 (2014)).  Additionally, the Supreme Court has made abundantly clear that when the State’s compliance with the *Abbott* remedial mandates is directly implicated, nothing less than the full “development of an evidential record” is required to properly adjudicate the constitutional rights of vulnerable students at stake.
[brief] The Trial Court Erred by Not Ordering Fee Shifting to [...] required by R. 4:23-3 due to [...]’s Failure to Admit the Genuineness of the Operative Documents and the Truths of the Matters surrounding the divorce.  (Pursuant to R. 2:6-2(a)(1), Plaintiff states this issue was not raised below)(Pa72)....59  POINT V.........................................................................................................................61  THE TRIAL COURT ERRED IN DENYING ABE’S REQUEST FOR THE RETURN OF HIS LEXUS.  (A229; A427).
[brief] [3T41:14-22 (emphasis added). ]  * * *  There’s nothing in the City Council transcript from January of ’20 or the Certification that you talk about that even remotely indicates that there was this indication that the school was a deal or an agreement or anything like that.  So I don’t think he even had a basis to speculate about that before February ’21 [3T27:10-16 (emphasis added). ]  * * *  I just made a finding that he did not have a real indication about the quid pro quo with the school until February, a month after the [First Action] was dismissed.
[brief] But, even if it did, the Borough conveniently fails to point out that (i) in the 2010 Map, the Borough Clerk certified as follows:  “I hereby certify that the streets, roads, and public rights-of-way shown on this map have been approved by the proper municipal boards/authorities” (Da173), which certification could not have been made if there was any improper zoning; (ii) errant comments made by the Planning Board engineer are not a formal ruling and have no force of law or otherwise; and (iii) the Planning Board attorney opined at the next Planning Board meeting that there was no issue regarding the approval of the roads and the zoning, and that [...] was incorrect:  So, again, there is no question in my mind, unequivocally, that this is the Board, and that it does not trigger a use variance.
[brief] In determining that [...] was “estopped from enforcing the step-down provision” the Boritz court stated “[f]irst, [...] is estopped because it confirmed to plaintiff’s counsel that the UIM coverage limit was $100,000.00.  Plaintiff was entitled to rely on that representation to forego the opportunity to seek redress from the tortfeasor personally. ”  Id. at 649-50.  In both Boritz and Barrett, supra, [...] confirmed to the Plaintiffs, prior to the Plaintiffs providing a Release to the tortfeasors that there was coverage under the policy in the amounts stated, i.e. $100,000.00 in Boritz and $500,000.00 in Barrett.
[brief] [21T; Da254-55]. ]  Defendant claims the PCR court mistakenly found his argument that his sentence was unfairly disparate in comparison to his more culpable co-defendants was previously adjudicated in prior appeals and capable of being raised in prior litigation. (Db17, 18 (citing R. 3:22-4)).  He further contends the PCR court mistakenly categorized the disparate sentencing claim as an excessive sentencing claim that is usually limited to a direct appeal.  (Db19-20).  The PCR court properly found that defendant’s disparate sentence claim, even if cognizable, would be procedurally barred as having been previously adjudicated and, even if not raised, that it could have been.  Despite those procedural bars, the PCR court nevertheless properly denied defendant’s claim on its merits because defendant, who was convicted of multiple first- and second-degree offenses with mandatory parole ineligibility periods, was not at all similar to his co-defendants who were either not charged, were acquitted, or pled guilty to a single offense.  Accordingly, the State respectfully submits that defendant’s arguments must fail and requests that this Court affirm the denial of his PCR claim.
[brief] Because each of the errors complained of in Points I through IV would have affected the jury’s resolution of [...]’s guilt, [...] separately asserts that even if none of those errors is deemed sufficient on its own to warrant reversal, in the aggregate the errors deprived him of due process and a fair trial.  *State v. Sanchez-Medina*, 231 N.J. 452, 469 (2018).  There was no dispute that [...] committed this crime with someone.  The only question was whether that person was [...].  The trial was unfairly biased towards answering that question in the affirmative through unreliable “scientific” evidence that placed the murder weapon in [...]’s hands, by the undue restriction on [...]’s presentation of a third-party guilt defense, and by inadequate jury instructions that improperly broadened the scope of [...]’s liability for murder while simultaneously failing to give the jury sufficient guidance on the State’s burden to prove [...] was the shooter.  For each and all of these reasons, [...]’s convictions must be reversed.
[brief] Klein v. Univ. of Med. & Dentistry of N.J., 377 N.J. Super. 28 (App. Div. 2005) .....................................................................................23, 24, 25, 29, 30 Kolb v. Burns, 320 N.J. Super. 467 (App. Div. 1999) ....................................................................................23, 40 Krouse v. Am. Sterilizer Co., 126 F.3d 494 (3d Cir.1997) ....................................................................................................32, 41 LeWitt v. Twp. of Gloucester, 2024 N.J. Super. Unpub. LEXIS 429, at *12 (App. Div. Mar. 15, 2024)
[brief] Then-[...] explained that an extraterritorial warrant “was treated as no warrant at all—as ultra vires and void ab initio to use some of the law’s favorite Latin phrases—null and void without regard to potential questions of ‘harmlessness’ (such as, say, whether another judge in the appropriate jurisdiction would have issued the same warrant if asked). ”  Krueger, 809 F.3d at 1123-26 (Gorsuch, J., concurring).  In fact, courts in multiple states have ordered suppression for jurisdictional breaches.  See, e.g., Frazier, 558 S.W.3d at 156; Sanchez v. State, 365 S.W.3d 681, 686 (Tex. Crim. App. 2012); Wilson, 618 N.W.2d at 519-20; Shelton, 766 S.W.2d at 629-30; Rupnick, 125 P.3d at 552; Crayton, 485 S.W.3d at 505; Kirkland, 442 S.E.2d at 491-92; State v. Davidson, 613 P.2d 564, 565-67 (Wash. Ct. App. 1980).  The exclusionary rule is especially apt in this case because, as [...] testified, [...] officers understand there to be no consequences for violating jurisdictional limits.
[brief] The procedure for adopting a Redevelopment Plan, as well as an amendment to an existing Redevelopment Plan, is governed by N.J.S.A. 40A:12A-7.  This is a similar provision as 40:55D-62a found in the MLUL.  See *Powerhouse Arts Dist. Neighborhood Ass'n v. City Council of City of Jersey City*, 413 N.J. Super. 322, 333 (App. Div. 2010).  Under the LRHL, "[a]ll provisions of the redevelopment plan shall be either substantially consistent with the municipal master plan”.  N.J.S.A. 40A:12A-7d.  Similar to the MLUL’s requirements for adopting zoning ordinances, the LRHL also provides that prior to adopting, revising or amending a redevelopment plan, the plan should be referred to the planning board, which, shall review the redevelopment plan, revision or amendment, and report to the governing body setting forth the board’s recommendation concerning the redevelopment plan, including the identification of any inconsistencies ….  N.J.S.A. 40A:12A-7e.  B.
[brief] The statute requires that a contribution claimant make payment on the judgment in excess of his allocated share so as to hold a right of contribution against the tortfeasor whose share has been paid by the contribution claimant.  N.J.S.A. 2A:53A-3 (providing for a right of contribution when there is a judgment against the joint tortfeasors and “any one of the joint tortfeasors pays such judgment in whole or in part, he shall be entitled to recover contribution from the other joint tortfeasor or joint tortfeasors for the excess so paid over his pro rata share [].”)  (emphasis added).  By order of April 28, 2023, the trial court stayed execution of the judgment against [...] upon the posting of a $1,155,673.79 by [...]’s liability insurer.  (Da365-66).  Thus, for practical purposes, the 40% allocation against [...] is stayed pending the outcome of this appeal.  It follows that [...]’s damages on a contribution claim will not fully ripen unless and until the stay of the judgment is lifted, which in turn would not occur unless and until this appeal is decided adversely to [...].