ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] State v. Johnson, 287 N.J. Super. 247, 263 (App. Div.), certif. denied, 144 N.J. 587 (1996).  POINT VIII  THE SENTENCING COURT DID NOT ABUSE ITS DISCRETION IN IMPOSING THREE CONSECUTIVE CUSTODIAL TERMS OF FIFTY YEARS EACH FOLLOWING DEFENDANT’S CONVICTIONS FOR FOUR SEPARATE FIRST-DEGREE MURDERS.  This Court must affirm the aggregate sentences imposed because 1) the lower court followed the sentencing guidelines; 2) its assessment of aggravating and mitigating factors was based on competent credible evidence in the record; and 3) the sentence does not shock the judicial conscience.
[brief] ” (p. 14) (Da406).  Even though there is no language in the policy authorizing consideration of protected characteristics, the court concluded that the policy’s language prohibiting notification based solely on protected characteristics “infers” consideration of protected class membership “as a result of subjective perception that a student suffered an adverse impact” by mere virtue of a protected characteristic (p. 13-14) (Da405-406).  The court’s conclusion presumed that school personnel equate protected characteristics with adverse impact triggering parental notification thereby ascribing discriminatory motives to school personnel without any factual basis.
[brief] Even if the jury was instructed that [...] could have been vicariously liable for an intentional assault committed by [...], they would not have reached a different outcome, because they determined that [...] was acting outside the scope of his employment first, which precluded a determination on vicarious liability. \(^{13}\) \(^{13}\)  Plaintiffs do not challenge the jury charge on negligent training and supervision, which was the applicable charge.  That charge did allow Plaintiffs to recover for assault.
[brief] ”  United States v. Higgs, 713 F.2d 39, 44 (3d Cir. 1983); see also Swenson, 894 F.3d at 683-84.  Therefore, as a matter of law, because the diagram here was disclosed before trial, in time for it to be effectively utilized at trial, Brady’s principles were upheld.  The diagram was disclosed four months before the judge rendered her decision on whether to reconsider her initial suppression ruling, addressed by the parties at the May 2024 motion hearing (and in briefing), and thoroughly considered by the judge in her final decision.  The judge also could have ordered a continuance if she needed more time to consider it, or for the parties to address it.  Additionally, there was no Brady violation because, under the correct Fourth Amendment analysis, the delayed diagram was not material for Brady purposes.
[brief] In S.N. Golden Estates, this Court held, “in view of the magnitude and complexity of Golden's counsel fee application and of the issues presented in the prior appeal and in this appeal, we conclude that [...] should be afforded an opportunity to conduct discovery in connection with the application.  See Shanley & Fisher, P.C. v. Sisselman, 215 N.J. Super. 200, 215-17, 521 A.2d 872 (App.Div.1987). ” (emphasis added).
[brief] Cooper River Plaza E., LLC, supra, at 526.  "Restrictions on the use to which land may be put are not favored in law because they impair alienability."  Bruno v. Hanna, 63 N.J. Super. 282, 285 (App. Div. 1960).  Accordingly, enforcement of provisions by one person restricting another in the use of his land occurs when "the right to restrict is made manifest and clear in the restrictive covenant."  Ibid. (citing Hammett v. Rosensohn, 46 N.J. Super. 527 (App. Div. 1957)).  [...]’s restrictions on Plaintiffs’ construction relative to other properties is an impairment on alienability to the extent that Plaintiffs’ property use is diminished while others are enhanced.  This translates into differing market values to Plaintiffs’ detriment.  Despite the premise of strict construction, our courts have upheld a restrictive covenant if it is found in the chain of title.  See, Pearson v. DMH 2 LLC, 449 N.J. Super. 30, 50 (Ch. Div. 2016) (citations omitted); see also Olson v. Jantausch, 44 N.J. Super. 380, 388 (App. Div. 1957).  Here, the only restrictive covenants that appear of record in the chain of title to the subject premises are the ones contained in the [...].  They impose no height restriction, nor do they confer any power to alter or amend the restrictions by the developer, his successors or assigns.  (Da53)(Da141-149).  Once [...] conveyed title, they no longer possessed the authority to further encumber the subject premises with restrictive covenants; nor could he, therefore, assign such authority to [...].
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[brief] Plaintiff’s Legal Fees Were Not Permitted Fee Shifting Under the Current Law (Raised Below: Da45-66, Da168-178)  The Appellate Division incorrectly relied on ruling from *In re Estate of Lash* 169 N.J. 20, 26 (2001) to award legal fees to Plaintiff in the instant case, because the legal fees incurred by Plaintiff to set aside the PSA and Judgment of Divorce were not permitted fee shifting under the law.
[brief] Plaintiff does not allege the Ozurdex® pellet itself was defective, but instead alleges that a defect occurred in manufacturing the applicator, which resulted in generation of a silicone particulate.  [...]’s testing of retained units from the Ozurdex® lot at issue in this case (lot E82852) showed a silicone particulate generation rate of only 2.2%—i.e., 97.8% of units in that lot had no risk of generating a silicone particulate.  (Da0237)  Plaintiff admits she has no direct evidence the applicator used in her November 6 Ozurdex® injection was one of those very few that generated a silicone particulate.  In an attempt to prove her --- 7  Cystoid macular edema is when the macula, responsible for central vision, swells and fluid-filled blisters block vision, potentially causing irreversible damage and permanent vision loss.  (Da0346, ¶ 91)  Ozurdex® unit nonetheless caused her eye inflammation, retinal detachment, and vision loss, Plaintiff disclosed [...] and [...] as experts.  (Da0329)  1.  **Plaintiff’s Treating Physician  [...] Speculates a Silicone Particle (He Never Saw) Caused Plaintiff’s Eye Inflammation Based Solely on the Recall.
[brief] Pb3.  Finally, with respect to Count Three, plaintiff’s claim for trespass, the trial court found that the record was undisputed that the area where [...] disposed of the tree branches was a municipal right of way, and not part of plaintiff’s property.  T61:6-:16.  The court rejected plaintiff’s certification, in which he claimed that [...] admitted placing the tree branches on plaintiff’s property, as insufficient to create a genuine issue of fact.  T62:25-63:8.  The court noted that conclusory and self-serving assertions that lacked evidentiary support were insufficient to defeat a meritorious motion for summary judgment.  T63:9-:21.  LEGAL ARGUMENT
[brief] ”  Duvin v. Bd. of Trs., Pub. Emps.’ Ret. Sys., 76 N.J. 203, 207 (1978).  Here, [...] seeks to avoid an obvious legislative restriction outlined in the Ricci Act that provides he is ineligible for the presumption or recalculation after July 8, 2021.  Even if [...] did not receive the postcard or any of the other notice provided by the Division, he cannot evade the two-year limitation period.  “As New Jersey courts have long recognized, ‘[i]gnorance of the law furnishes no excuse to a person either for a breach or for an omission of a duty[.]’”  Kalogeras v. 239 Broad Ave., L.L.C., 202 N.J. 349, 367 (2010) (quoting Bowen v. Pursel, 109 N.J. Eq. 67, 73 (E. & A. 1931)).  Thus, [...] purportedly being unaware of the Ricci Act until over three years after its passage cannot serve as the basis to allow him to evade its unambiguous requirements.
[brief] ...............................................................32  A.  The Miscalculation of Interest .................................................................34  1.  The interest on the unpaid EGP claim must be calculated on the net amount due ..............................................35  2.  The modification to the interest was improperly calculated because it included prior payments into amount due rather than using that number as an offset to total amount owed .................................................................35  B.  Errors in the description of [...] and [...] .............37  1.
[brief] These fatal errors, taken together, demonstrate the unconstitutionality of the legislation.  The Legislature failed to inform the public and even the legislators about the legislation, but such notice was required by statute and contemplated in two different places in the Constitution – art. I, ¶ 18 and art. IV, § IV, ¶ 6.  Given the purpose to the twenty-four hour requirement is for the benefit of the legislators public studying bills, the Assembly did not meet this requirement when it gave S. 49 all three readings in one day.  See Forsythe, 91 N.J. at 149-50; see e.g., Pa201 at 50:1-7; Pa281-83 at 13:21-15:2.  Therefore, the readings of the bills were important for notice to the public, which could not be established when access to the State House was limited, the Legislature failed to provide two days’ notice that it would consider A. 6260 or S. 49 as statutorily required, and the Legislature did not publish the text of the bill on its website or its calendar as required by statute.  See N.J.S.A. 52:11-78(a)(4) and (5).  The acts should not be saved based upon the Court’s resolution in Forsythe because in that case all of the other hallmarks for notice to the public were met: there is no discussion in that case: that access to the State House was limited due to a pandemic; that the Governor issued a State of Emergency due to snow limiting the public from travel; that the Legislature violated the Open Public Meetings Act by failing to give the public two days’ notice that it would consider the bills; that the Legislature violated its statutes by not posting the bill on either its website or its calendar.  Given all of these statutory violations, the deficiency with the Assembly substitution of unpublished bill, A. 6260, for another unpublished bill S. 49, should not be tolerated by this Court.  Even the members of the Legislature noted the procedural irregularities with the enactment of this law.  (See e.g., Pa201 at 50:1-7; Pa281-83 at 13:21-15:2.)  The public deserves notice of broad-sweeping, life-changing legislation.  The failure to notify the public and read the bills consistent with the Constitution amounts to grave unconstitutional behavior for which the underlying legislation must be voided.
[brief] To the contrary, when defendant left the Holley residence after his altercation with [...], he stated his intention to “get [his] gun,” not to engage in a fistfight.  (8T74-21).  [...] further noted that there were multiple victims—[...], against whom he intended to use the gun; [...], at whom he fired the gun; and [...], whom he accidentally shot and killed when he missed her husband.  (18T94-12 to 95-17).  And finally, the judge estimated the illegal possession began when he left the curtilage of his home at 4:00 p.m., but the shooting did not occur until 8:00 p.m., so the offenses occurred at different times. (18T90-22 to 92-3; 18T95-18 to 96-11).
[brief] LEGAL ARGUMENT POINT I THE SUPERIOR COURT APPLIED THE PROPER STANDARD BELOW (Pa001024–1031).  Plaintiffs generally contend that in dismissing Plaintiffs’ Complaint, the Superior Court misapplied the motion to dismiss standard under Rule 4:6-2(e).  (Pb20–22).  In issuing the February 15 Order, the Superior Court considered the “futility” of Plaintiffs’ Complaint and proposed Amended Complaint.  A motion for leave to amend is governed under the same standard as a motion to dismiss.  Pressler & Verniero, Current N.J. Court Rules, cmt. 2.2.1 on R. 4:9-1 (2024); Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501–02 (2006) (explaining “there is no point to permitting the filing of an amended pleading when a subsequent motion to dismiss must be granted” (quoting Interchange State Bank v. Rinaldi, 303 N.J. Super. 239, 256–57 (App. Div. 1997)); Webb v. Witt, 379 N.J. Super. 18, 28 (App. Div. 2005) (“A motion for leave should be decided pursuant to the same standard as a motion to dismiss for failure to state a claim. ” (citation omitted)).  Rule 4:6-2(e) provides that a defendant may move to dismiss a complaint for “failure to state a claim upon which relief can be granted[.]”  R. 4:6-2(e).  On appeal, this Court may conduct a plenary review from the lower court’s decision to grant Defendants’ motion to dismiss pursuant to Rule 4:6-2(e).  Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App. Div.), certif. denied, 185 N.J. 297 (2005).  However, it is well settled that a motion to dismiss for failure to state a claim under Rule 4:6-2(e) must be granted if a “generous reading of the allegations does not reveal a legal basis for recovery. ”  Edwards v. Prudential Prop. & Cas. Co., 357 N.J. Super. 196, 202 (App. Div.) (citation omitted), certif. denied, 176 N.J. 278 (2003).  A court must dismiss a plaintiff’s complaint if it has failed to articulate a legal basis entitling plaintiff to relief.  Camden Cnty. Energy Recovery Assocs. v. N.J. Dep’t of Env’t. Prot., 320 N.J. Super. 59, 64 (App. Div. 1999), aff’d, 170 N.J. 246 (2001); see Printing Mart-Morristown v. Sharp Elecs Corp., 116 N.J. 739, 771–72 (1989) (setting forth standard for motions to dismiss); Sickles, 379 N.J. Super. at 105–06 (discussing that a motion to dismiss “must be evaluated in light of the legal sufficiency of the facts alleged in the complaint” (quoting Donato v. Moldow, 374 N.J. Super. 475, 482 (App. Div. 2005))).  “If the complaint states no basis for relief and discovery would not provide [the claimant with a basis for relief], dismissal is the appropriate remedy. ”  Banco Popular N. Am. v. Gandi, 184 N.J. 161, 166 (2005) (citation omitted).  Because Plaintiffs cannot assert a claim against Defendants as a matter of law, this Court should affirm both the Superior Court’s denial of Plaintiffs’ motion for leave to amend, and dismissal of the Complaint, with prejudice.
[brief] [...] may point to *Jorge v. [...] Indem. Co.*, 947 F.Supp. 150 (D.C.N.J. 1996), for the proposition that it may pursue reimbursement of the settlement amount paid based on either conventional or equitable subrogation.  The *Jorge* court held that an insurer, which paid a judgment on behalf of its insured, was allowed to pursue recovery for the payment from another carrier via conventional subrogation based on policy language, as well as equitable subrogation based on principles of equity (with the VPD applicable only to the latter).  *Jorge*, at *6-7.  However, equitable subrogation does not apply given [...]’s notice it was unenrolled and because it paid no premiums toward the [...].  Importantly, *Jorge* is an outlier that has never been cited by a New Jersey State Court since its ruling more than 25 years ago.
[brief] But the proverbial second shoe never drops: the defendants never explain how the public is benefitted by lesser setbacks.  It is unnecessary to discuss the negative criteria (see DBb25 to DBb27) when special reasons for the (c)(2) variance do not exist.  The Board refers to 'Vision Plan' and 'Gateway' and 'Branding' (see DBb27).  But the deviation (5-foot-setback-versus-10-foot-setback) does not advance any of this.  The Borough's 'brand' would be just as effectively promoted (if not better promoted) with a building that conforms to the Governing Body's setback requirements.  The Applicant claims that "the C and D variances overlap" (DBb13), which is not the case.  The setback variance has nothing to do with the height variance.  The Applicant’s attempt to bootstrap those two variances together whereas here the proofs presented the Board are each variance are deficient constitutes a transparent attempt to create a new dual variance where neither variance has a sufficient evidential basis to stand alone.  There is no legal basis for this procedure either in the MLUL or existing caselaw.
[brief] THE EVIDENCE OF MR. COHEN’S PATTERN AND PRACTICE OF NOT PAYING HIS ATTORNEYS WAS PROPERLY PERMITTED BY THE TRIAL COURT (3T:194)  When asked if it is his practice and policy to negotiate every bill that comes in, whether it is a law firm or a vendor, [...] testified, “I try to minimize my expense, yes. ” (3T:186:16-19).  [...] testified that his father told him years ago to try to negotiate as much as you can because every dollar saved is a dollar earned.  (3T:186: 22-25).  He testified that he cannot negotiate his Mortgage or a utility bill, but regarding service providers who work at his pleasure and leisure, if he thinks a bill is inappropriate or excessive, he will negotiate it.  (3T:187:13-14).  That includes everyone, including law firms.  (3T:187:16).  Also, on the issue of the practice of [...] to negotiate down all bills, the Court held that questions regarding the same were appropriate.  (3T:198:12-20).  The Court noted that in his deposition, [...] testified that is what he does, and that it is good business practice.  If he gets a bill from a lawyer, he negotiates it down.  (3T:200:1-4).  Therefore, the questions and evidence of [...]’s past repeated history of not paying his attorneys was appropriate for the jury to consider.  (3T:200:4-10).  **CONCLUSION**
[brief] In Ferraro, the plaintiff sought a use variance under N.J.S.A. 40:55D-70(d)(1) from the [...] for the construction of a car wash.  Id. at 63.  The property was divided by a municipal boundary line; 70% of the property was in [...], and 30% in [...].  Id.  The Hazlet-portion of the property was in the Business Highway Zone, and the Holmdel-portion was in a residential zone.  Id.  The [...] denied the plaintiff’s use variance application.  Id.  The Supreme Court held that the plaintiff must seek zoning approvals from both municipalities, and that during the process, “each [municipality] presumably would act in good faith entertaining [plaintiff’s] applications for the proper use.
[brief] *Prant v. Sterling*, 332 N.J. Supr. 369, 377 (Ch. Div. 1999), aff’d, 332 N.J. Super. 292 (App. Div. 2000).  No such dispute exists here: [...] electronically signed the Agreement and assented to resolving her employment claims in private mediation and began working in her role as a Clinical Research Educator, which constitutes a de facto acceptance of the Agreement’s terms.  She concedes this outcome-determinative fact in her certification when she stated that she “acknowledged” several policies electronically during her onboarding process.  (Pa000126.)  [...]’s vague assertion that she subjectively felt pressured or her dubious claim that she did not know what an arbitration agreement was despite her status as an experienced, educated professional does not create the need for a hearing to determine that which is already apparent and undisputed.
[brief] On May 20, 2018, defendant, then-forty-two years old, and teenaged co-defendants [...], [...], and [...], carried out a plan for Aaron to fight eighteen-year-old [...], which resulted in Tarpley’s death.  That day, defendant called Aaron, an accomplished high school wrestler, because Tarpley allegedly hit defendant’s girlfriend, [...], and defendant “needed somebody to handle” Tarpley, urging Aaron “to go fuck [Tarpley] up. ”  (9T75-12 to 76-1; 10T63-20 to 25).  Aaron agreed because --- 2  At the close of the State’s case, the court granted the portion of defendant’s motion to dismiss pertaining to counts seventeen (second-degree conspiracy to commit aggravated assault) and eighteen (first-degree conspiracy to commit SBI murder), leaving only count sixteen (third-degree conspiracy to commit aggravated assault) for the jury.  (13T49-10 to 60-25).  defendant offered to pay him forty dollars.  (9T101-15 to 20; 10T64-18 to 65-1).  Aaron called his brother Archie for backup, and Archie brought Pierce.  (9T81-22 to 82-2; 10T59-11 to 20).  Defendant led the group to Tarpley’s house, splitting up partway to avoid suspicion.  (9T83-14 to 84-2).  Although Archie believed that it would be a “fair fight,” he did not think Tarpley “had a chance of beating Aaron,” because Aaron was a better fighter.  (10T77-2 to 78-2).  After leading the group to Tarpley’s house, defendant knocked on the door to call him outside.  (9T84-3 to 16; 10T70-23 to 71-14).  Tarpley walked out and then fought Aaron.  (9T87-21 to 88-4).  Nearby, defendant punched Tarpley’s friend, [...], who yelled to break up the fight.  (10T114-18 to 115-17).  Aaron won the fight quickly and decisively.  (9T188-13 to 14).  Afterward, Tarpley ran into his house and emerged with a knife and another weapon, chasing the teenagers down the street.  (9T94-21 to 24).  Amid a scuffle, Pierce stabbed Tarpley and the trio fled.  (9T95-7 to 96-2; 102-2 to 103-7; 81-9 to 24).  McCormick picked them up and paid Aaron twenty dollars.  (9T96-14 to 22).  Tarpley died as a result of his wound.
[brief] 10  Guiseppi v. Walling, 144 F.2d 608 (2d Cir. 1944) .............................................................  16  Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242 (2010) ........................................................................  16  Hayes v. Turnersville Chrysler Jeep, 453 N.J. Super. 309 (N.J. Super. App. Div. 2018) ................................. 7, 33
[brief] SUPERIOR COURT OF NEW JERSEY APPELLATE  DIVISION DOCKET NO. [...]  __________________________________________ :  On Appeal from the October  [...], : 16, 2023  Order of the Appellant, : Superior Court, Law : Division, Burlington County : Vicinage v. : Sat Below: Hon. James J. [...]; : Ferrelli, J.S.C. [...]; KRISTINA : PUGLIA; ESTATE OF ARTHUR : PUGLIA; J. LLEWELLYN : MATTHEWS; ESTATE OF : ANGELINA PUGLIA, : Respondents.
[brief] Foremost, in its decision, the trial court stated that the officers, “had got information that they believed that [...] was the occupant or the driver of that car from somebody that they knew to be a drug addict, and they went to that area with the expectation that there may be drug activity taking place. ” (1T19-25 to 20-7).  Yet, [...]’s testimony, which the court found credible, indicated that officers were in an unmarked car on patrol in an area known for drug activity.  [...] stated he and two other narcotics officers were “[j]ust driving around patrolling looking for suspicious narcotics activity,” when their attention was drawn to a silver Infiniti that was backed into a parking spot between two box trucks.  (1T7-6 to 7; 1T14-16 to 18; 2T12-24 to 13-10).  Contrary to the court’s findings, the officers had no advance information of defendant’s location, car or activities prior to observing the Infiniti in the Wawa parking lot.  Further, the trial court erroneously found that the officers were expecting to see drug activity because they were provided information from someone known to be a drug addict that [...] would be in the car.