ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] See also State v. Tropea, 78 N.J. 309, 313-15 (1978)(Citing Burks, 437 U.S. at 16 and Greene v. Massey, 437 U.S. 19 (1978), decided on the same day.  Those cases (Burks in the federal sphere and Greene as to state court proceedings) make it clear that a remand for a new trial is proper where reversal of a criminal conviction is predicated on trial error.  Here, Appellant’s VOP conviction was reversed due to an “error” attributable to the erroneous admission of unreliable and prejudicial evidence.
[brief] TABLE OF CONTENTS  TABLE OF AUTHORITIES ........................................................................................................ ii  TABLE OF JUDGMENTS, ORDERS AND RULINGS .................................................. v  PRELIMINARY STATEMENT .................................................................................................  1  PROCEDURAL HISTORY .......................................................................................................  3  STATEMENT OF FACTS .........................................................................................................  5  LEGAL ARGUMENT ...............................................................................................................  7 POINT I.  THE STANDARD OF REVIEW (Raised Below: T1)  ...........................................  7 POINT II.  THE TRIAL COURT ERRED IN DETERMINING THAT DEFENDANTS DID NOT WAIVE THEIR PURPORTED ABILITY TO COMPEL ARBITRATION (Raised Below: T1)  ......................................................  10 POINT III.  THE TRIAL COURT ERRED BY ALLOWING DEFENDANTS TO ENFORCE A PROVISION OF A CONTRACT DECLARED VOID BY THE LEGISLATURE (Raised Below: T1)  .............................................................  17  POINT IV.  THE TRIAL COURT ERRED BY GRANTING DEFENDANTS’ MOTION TO COMPEL ARBITRATION WITHOUT ALLOWING DISCOVERY ON THE ISSUE OF ARBITRABILITY  (Raised Below: T1)  ........................................................................................................................................  31  CONCLUSION
[brief] LEGAL ARGUMENT POINT I  THE TRIAL COURT’S STATEMENT OF REASONS FAILED TO CONFORM WITH THE REQUIREMENTS OF RULE 1:7-4.  (Pa82)  Point II of the Borough’s Brief, beginning on Page 13, argues that the Trial Court’s Statement of Reasons satisfied the obligation under Rule 1:7-4 for a court to make “specific” factual findings and legal conclusions when deciding a summary judgment motion.
[brief] The Consent Order is a judicial endorsement of terms negotiated and drafted by counsel for all parties.  Appellants appeared in the Chancery Action requesting entry of the Consent Order and affirmatively agreeing to abide by the terms of the Consent Order that they themselves helped draft and thereafter submitted to the Chancery Court for filing.  Appellants were successful having the Chancery Court, in November of 2018, enter the Consent Order and thereby agree with their position regarding the disposition of the Chancery Action and the limitations placed upon all parties’ ability to revive their claims.  Where, as here, “a party successfully asserts a position in a prior legal proceeding, that party cannot assert a contrary position in subsequent litigation arising out of the same events. ”  Kress v. La Villa, 335 N.J. Super. 400, 412 (App. Div. 2000), certif. denied, 168 N.J. 289 (2001).  Here, Appellant voluntarily asked the Chancery Court to affix its rights and responsibilities in resolution of the earlier Chancery Action.  The Chancery Court provided the requested relief and entered the final, non-appealable Consent Order.  As a result, Appellant is judicially estopped from now seeking to ignore or alter the terms of the Consent Order.
[brief] In *Marmo*, the Court rejected the defendant’s argument that *Morgan* “forbids any consideration of prejudice,” and instead “construe[d] *Morgan* to disallow consideration of prejudice only .  . . .”  *Marmo*, 478 N.J. Super. at 607 (emphasis added).  *To wit*, *Marmo* reasoned “*Cole* illustrates that, under New Jersey law, prejudice can serve as one of many waiver factors\(^1\) within the totality of circumstances . . .  Cole displaced our own previous appellate decisions that had *required* a party asserting an opponent's waiver of an arbitration right to demonstrate it had suffered prejudice. ”  *Id.* at 609 (emphasis added).  Because *Cole* includes “prejudice within its multifactor test as a non-dispositive and non-essential consideration,”  *Cole* is not necessarily at odds with *Morgan*’s holding that prejudice cannot be an essential requirement for a finding of waiver.
[brief] (Pa61).  Namely, the issue is “[o]rdinances can be very nuanced, and some may have numerous purposes[;] [t]o identify this information and include it in a concise statement of purpose could be an extremely difficult task and goes beyond what is contemplated in the statute. ” (Id.).  Indeed, municipal ordinances, particularly land use ordinances and especially those like this one adopting a redevelopment plan, often contain numerous and complex land uses and conditions that extend well beyond a mere recitation of a type of use.
[brief] ”  *Id.*; see also *Cahill*, 213 N.J. at 274 (“A speedy trial violation can be established without evidence of prejudice. ”); *State v. Farrell*, 320 N.J. Super. 425, 446 (App. Div. 1999) (“[B]ecause the evaluative process involves a balancing of considerations, if the other factors weigh heavily enough, a speedy trial violation can be established without an affirmative showing of prejudice to the defendant. ”).  When the government’s negligence causes an excessive delay, a court will presume that a defendant’s ability to defend his case has been prejudiced.  See *Doggett*, 505 U.S. at 656-658 (holding that the fourth factor favored the defendant where the Government’s negligence caused a six-year delay, even though the defendant did not affirmatively show any prejudice to his defense).  Indeed, courts often apply *Doggett*’s presumption of prejudice and dismiss charges without any showing of prejudice to the ability to defend, even when the delays have been shorter than the delay in this case.
[brief] Operation and Sale of [...] to Pay for the Judgment.  In addition to the execution efforts set forth above, Plaintiff was also required to pursue substantial motion practice to enforce the constructive trust over [...] (the entity pledged as security on the false premise that cash was not available to bond or pay the judgment) and to ultimately pursue its sale towards satisfaction of the judgment.  (Da17).  In March 2017, several submissions were made to the court concerning the authority of the special fiscal agent to oversee [...]’s operations, including the distribution of a $3.7 million payment to [...] being held in escrow.  (Da17).  The court approved $2.5 million being distributed to Plaintiff, with the remainder being allotted for [...]’s operating expenses, but which [...] and [...] purloined thereafter.  (Da17).  [...], then [...]’s COO, continually disregarded the special fiscal agent’s instructions concerning preserving [...]’s revenues to make payments toward the judgment – including making unauthorized payments to himself and [...].  (Da17).  This resulted in further motion practice to provide the special fiscal agent with signatory authority over [...]’s financial accounts.  (Da17).  Plaintiff’s counsel was also required to devote time to review of the special fiscal agent’s periodic budgets, and to respond to motion practice related to court approval of those budgets filed by Defendants.  (Da17).  In December 2017, after it became clear Defendants would not abide the special fiscal agent’s instructions concerning the operation of [...] for the benefit of Plaintiff, Plaintiff filed a joint application with the special fiscal agent seeking the removal of [...] and [...] from [...] and to authorize a due diligence investigation into [...]’s sale prospects.
[brief] As noted above, the prejudice prong of the Strickland/Fritz test is satisfied by demonstrating that but for counsel’s deficient performance, a reasonable probability exists that the result of the proceeding would have been different.  Pierre, 223 N.J. at 583.  A “reasonable probability” that a defendant was prejudiced is dependent on the “strength” of the State’s evidence.  Pierre, 223 N.J. at 583; L.A., 433 N.J. Super. at 16-17.  “[A] verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support. ”  Pierre, 223 N.J. at 583 (quoting Strickland, 466 U.S. at 696).  --- 7
[brief] Pre-suit arbitration agreements in medical malpractice cases arising out of the performance of surgical procedures, or that result in a patient’s death, must be deemed to be unenforceable.  Furthermore, the court should adopt a new test that protects the public’s interest when enforcing pre-suit arbitration agreements because of the unique circumstances in medical malpractice cases.  The agreement in this case is unenforceable because it is --- \(^1\)It should be noted that this is a direct quote from the arbitration agreement including all grammatical errors contained in the agreement.  unconscionable.  Therefore, this court should affirm the lower court’s holding that the arbitration agreement is unenforceable.
[brief] ……………………………(omitted)  Exhibit EE, 5/12/2005  Unpublished Opinion  Garrubbo, Romankow and Rinaldo, Esq. v. Kenilworth Veterans Center, Inc., A-6501-02T5 (App. Div. May 12, 2005)…………………………………………………………………………………(omitted)  Exhibit FF, 5/14/2007  Unpublished Opinion  Trivedi v. Allstate Insurance Company, et.al., A-3166-05T5(App. Div. May 14, 2007).  …………………  (omitted)  Exhibit GG, Unpublished Opinion
[brief] (Da7-8).  Under New Jersey law, consideration is a bargained for exchange of promises or performance that may be an act, a forbearance, or an agreement to create, modify, or destroy a legal relation.  Sipko v. Koger, Inc., 214 N.J. 364, 380 (2013); Martindale v. Sandvik, 173 N.J. 76, 87 (2002); Shebar v. Sanyo Business Systems Corp., 111 N.J. 276, 289 (1988).
[brief] The DEP’s administrative record is not credible in this regard.  The DEP’s dubious finding that the Project “avoided and minimized impacts to the Highlands resources” is not based on any credible record or factual reality of the project’s air pollution (GHG emissions) or the inevitable environmental damage to the Highlands resources from anthropogenic climate change.  The DEP erroneously and improperly failed to consider this project’s role in unwise sprawl development and its air pollution emissions, including its significant contribution to the ongoing climate crisis.  The Highlands Act clearly and expressly intended the DEP to consider impacts to air quality from the project.
[directive] Do you have any feelings about whether or not our society is too litigious, that is, that people sue over things too often that they should not sue over; or do you think, on the other hand, there are too many restrictions on the right of people to sue for legitimate reasons; or do you think our system has struck the right balance in this regard?  Have you heard of the concept of "tort reform" (laws that restrict the right to sue or limit the amount that may be recovered)?  How do you feel about such laws?  3.  There may be expert witnesses in this case.
[brief] **  [...]’s argument that “prejudgment interest should run through the date of entry of its new ‘final’ judgment” fails to acknowledge the basis upon which the Trial Court made that award.  ([...]_Pb 75).  The date of transition from pre-judgment to post-judgment interest is *not* the controlling factor in this case.  Simply, the 8.875% compound interest rate agreed-upon between the parties ended on December 20, 2013.  From that point on, the Court, having made no findings to the contrary, abused its discretion in deviating from awarding simple interest at the rate embodied in R. 4:42-11.
[brief] However, during a private meeting before the Closing, [...] informed [...] for the first time that he would be able to pay on that day only $330,000, and that he would not be able to then pay the entire outstanding balance of both Loans ($494,935.94) as he had promised only days before.  Da19; 1T140-25 to 141-24.  [...] told [...] that he had “other obligations” and “needed the money [that was due to [...]] for other things. ”  Da19; 1T142-4 to 12.
[brief] Trial commenced before [...] on November 3, 2021 (1T).  [...] introduced testimony from its two expert land title witnesses, [...] and [...], as well as [...], a genealogist.  [...] testified that a Planning Analysis (J-20, Pa1033, 1057) prepared by [...], confirms that the mean high-water line in 1918 was coterminous (1T39:7-25).  His testimony confirms the Quinlin acquisition (Quinlan Grant) was in 1879.  The southerly terminus of the Riparian Grant and what is shown as the mean high-water line of 1918 have the same boundaries and are coterminous (1T39:18) (Pa669).  In 1964, after the Quinlin transaction took place and long after the [...] foreclosed on the property in question in 1939, it is also shown as the mean high-water line in 1980, which is shown as a blue/purple line.
[brief] Finally, the court’s reference to the --- 6  The court repeatedly referred to [...] “taking” [...] away from the bar, but no evidence supported that [...] coerced or otherwise forced [...] to leave the bar with him.  (9T 39-20 to 22)  “senseless” nature of [...]’s death “without any explanation,” while obviously tragic, was not “especially” heinous, as nearly all murders are senseless acts of violence.  Moreover, punishing [...] for not providing an “explanation” amounted to punishing him for exercising his right to silence and effectively shifted the burden to him to justify [...]’s death.  See Mitchell v. United States, 526 U.S. 314, 327-30 (1999).  The State’s failure to prove a motive at trial should not have been used to further aggravate [...]’s sentence.  In sum, because all of the circumstances cited by the court already comprised the offense, the court improperly double-counted them to find aggravating factor one.
[brief] I.  **THE HOLDING IN STATE V. PETRELLO MUST BE OVERTURNED AS IT CLEARLY CONFLICTS WITH THE STATUTORY LANGUAGE OF N.J.S.A. 39:4-50(C)**  N.J.S.A. 39:4-50(C) states in relevant part:  Upon conviction of a violation of this section, the court shall notify the person convicted, orally and in writing, of the penalties for a second, third or subsequent violation of this section.  A person shall be required to acknowledge receipt of that written notice in writing.  Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of a violation of this section.  (Emphasis added).  In State v. Bunch, 180 N.J. 534, 543 (2004), the Court stated, "[e]mbedded in that canon of construction is the recognition that the terms used in a statute, if unambiguous in meaning, are the clearest indicators of legislative intent.  McCann v. Clerk of City of Jersey City, 167 N.J. 311, 320 (2001)."  Courts must construe ambiguities in penal statutes in favor of defendant.  State v. Livingston, 172 N.J. 209, 218 (2002); State v. Valentin, 105 N.J. 14, 18(1987).  The Legislature chose to mention that failure to provide written notice would not provide a defense to a subsequent violation.  Therefore, not mentioning failure to give oral notice means that such a failure is a defense to a subsequent violation.  In State v. Petrello, the issue on appeal to the Appellate Division was, “whether or not the mandatary enhanced penalty provisions for a subsequent conviction of driving while intoxicated in violation N.J.S.A. 39:4-50 should be imposed at sentencing where the second violation occurs prior to sentencing for the first conviction.
[brief] [...] entered into a Subconsultant Agreement with [...] dated October 8, 2014.  (Pa1265).  [...]’s Subconsultant Agreement with [...] defined [...]’s scope of services as follows:  Resident Engineering and Construction Inspection Testing Services related to a road widening project covering mileposts 38.0 to 41. 0 on the Garden State Parkway (“Project”).  (Pa1271-Pa1274).  [...]’s scope of services involved one of three road widening projects for which [...] was to provide Supervision of Construction Services pursuant to [...]’ contract with the [...] dated October 1, 2014.  The other two road widening projects concerned mileposts 35.0 to 38.0 and mileposts 42.3 to 48.0 on the Garden State Parkway.  Neither of these other two projects are associated with the current litigation.  (Pa1265).  Per [...]’s Subconsultant Agreement with [...], [...] was obligated to serve as both the resident engineer and chief inspector with respect to the Project.  (Pa1265).  It is undisputed, however, that the role of Chief Inspector associated with the Project was ultimately supplied by [...].  (Pa569 and Pa573).  [...]’s Subconsultant Agreement detailed its contractual obligations associated with the Project by way of a 23-item recitation of responsibilities identified as points A through W. (Pa1272 and Pa1273).  The itemized contractual obligations set forth within [...]’s Subconsultant Agreement did not include an obligation to identify pre-existing roadway defects. (Pa1272 and Pa1273).  Rather, a review of [...]’s contractual obligations indicates a focus on the coordination and procedural requirements inherent to the construction activities associated with the Project.  (Pa1265).  **Plaintiff’s Expert [...] – Narrative Report**
[brief] You saw that.  No citable deficiencies.  No state or federal citable deficiencies.  And you heard how the Department of Health had his chart and you heard how the Department of Health would review the chart.  [...] told you that.  And they would have seen, and they saw -- nobody hid this -- PN.  Do you see that there?  LPN, LPN, LPN.  The note before it, LPN, LPN.  Don't you think the agency that's supposed to see if you have compliance with the regulations, don't they think -- don't you think they would have had a problem with that?
[brief] See Laws of 1983, Chapter 320.  The Legislature stated that the “purpose of this act is to confront aggressively the problem of insurance fraud in New Jersey by facilitating the detection of insurance fraud, eliminating the occurrence of such fraud through the development of fraud prevention programs, requiring the restitution of fraudulently obtained insurance benefits, and reducing the amount of premium dollars used to pay fraudulent claims. ”  [N.J.S.A. 17:33A-2.]  In part, a person or a practitioner violates the act if s/he “presents or causes to be presented any written or oral statement as part of, or in support of or opposition to, a claim for payment or other benefit pursuant to an insurance policy, knowing that statement contains any false or misleading information concerning any fact or thing material to the claim. ”  N.J.S.A. 17:33A-4(a)(1).  A person or practitioner also violates the act if s/he conspires with others to violate the act or knowingly benefits from a violation of the act.  See N.J.S.A. 17:33A-4(b) and (c).  Unlike the No-Fault statute, the Fraud Act contains a provision for the resolution of disputes under the act.
[brief] Certainly, allowing a woefully belated revival of the claims asserted almost two years after the expiration of the mandatory sixty-day refiling deadline in brazen violation of the Consent Order without even attempting to provide any explanation or justification for their undue delay, is antithetical to the goals of the entire controversy doctrine and the interests of justice.  The Trial Court further acknowledged that if Appellants “were able to plead sufficient facts, although related to the Chancery Action, but ‘unknown, unarisen or unaccrued at the time of the original action,’ then these claims would not be barred under the entire controversy doctrine.  But given the factual allegations of the instant complaint, and [Appellants’] prior knowledge thereof, the present claims are likewise barred under the entire controversy doctrine.
[brief] On July 23, 2019, [...] filed an amended complaint, adding an as-applied challenge to the EFCFA as a new count, and naming the [...] and [...] (in his capacity as CEO of the [...]), as additional \textsuperscript{14}  [...], Ed.D., served as Acting Commissioner of the Department while this matter was before the trial court.  [...] was appointed Acting Commissioner of Education effective February 12, 2024.  defendants.\textsuperscript{15} (Aa833-87).  And on September 1, 2020, appellants filed a second amended complaint (Amended Complaint) removing plaintiff [...] and [...] from the case, and adding [...] and [...].
[brief] Upon the return of the action from federal district court to state court, the matter was transferred from the Superior Court of New Jersey, Middlesex Vicinage to the Superior Court of New Jersey, Somerset Vicinage.  (Pa287).  [...]’s ten remaining state law causes of actions at that time were as follows: Count I (False Arrest/Imprisonment), Count II (Injurious Falsehood), Count III (Libel/Libel Per Se), Count IV (Slander/Slander Per Se), Count V (Negligence), Count VI (Conspiracy), Count VII (Intentional Infliction of Emotional Distress), Count VIII (Negligent Infliction of Emotional Distress), Count IX (Negligent Hiring/Supervision/Retention), and Count X (N.J. Civil Rights Conspiracy).
[brief] ## TABLE OF AUTHORITIES | Cases | Page | |----------------------------------------------------------------------|------| | Dunbar Homes, Inc. v. Zoning Board of Adjustment of Twp. of Franklin, | 16, 17 | | 233 N.J. 546, 560, 561 ........................................................................... | | Jai Sai Ram, LLC v. Planning Bd., 446 N.J. Super. | 18, 19, 20 | | 338, 343-345 (App. Div. 2016)  ....................................................... | | Rumson Estates, Inc. v. Mayor & Council of Fair Haven, | 17 | | 177 N.J. 338, 349 (2003)  ..................................................................... | | Statutes | | |----------------------------------------------------------------------|------| | N.J.S.A. 40:55D-10.5 ......................................................................... | 15 | | N.J.S.A. 40:55D-22(b) ...................................................................... | 21, 22 | | N.J.S.A. 40:55D-3 ............................................................................ | 17 | | N.J.S.A. 40:55D-67 ......................................................................... | 11 | | N.J.S.A. 40:55D-70d(3) .................................................................... | 11 |  PRELIMINARY STATEMENT
[brief] THE DE NOVO COURT DID NOT ERR IN | | | DENYING DEFENDANT’S REQUEST FOR AN ADVERSE | | | INFERENCE | 15 | | POINT IV BASED ON THE EVIDENCE IN THIS RECORD,| | | DEFENDANT’S RELIANCE ON SCORING PROTOCOLS | | | FOR STANDARD FIELD SOBRIETY TESTS IS MISPLACED| | | CONCLUSION | 20 | COUNTERSTATEMENT OF PROCEDURAL HISTORY
[brief] There was no testimony that the defendant was acting in the heat of passion.  See Cristanos, 102 N.J. at 279-280.  First, the testimony established that the defendant went to the residence.  He was aware that he was not wanted there and he was told to stay away by the police.  Not only did he voluntarily go there, he armed himself with a deadly weapon, the knife, and wore a mask to conceal his identity.  This all occurred prior to the alleged provocation and demonstrates that his actions were premeditated and not carried out in the heat of passion.