ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] DEFENDANT IS NOT ENTITLED TO A TRIAL BY JURY FOR DWI  In 2015, our Supreme Court “consider[ed] whether a defendant is entitled to a jury trial when facing a third or subsequent driving while intoxicated (DWI) charge pursuant to N.J.S.A. 39:4-50. ”  State v. Denelsbeck, 225 N.J. 103, 106 (2015).  Our Court answered in the negative: we are satisfied that the current penalty scheme is within the confines of Sixth Amendment precedent and that the Legislature has managed to strike a minimally acceptable balance in weighing the interests at play.  As such, third or subsequent DWI offenders are not entitled to a jury trial, and defendant’s conviction procured by a bench trial did not violate his Sixth Amendment right to a jury trial.  Id. at 128.  The Court also addressed what would have to change for a right to trial by jury to attach to a recidivist DWI: we believe that the Legislature has increased the severity of penalties associated with repeat DWI offenses to the point where any additional direct penalties, whether involving incarceration, fees, or driving limitations, will render third or subsequent DWI offenses “serious” offenses for the purpose of triggering the right to a jury trial.  At that point, the balance will shift and the State’s interest in efficiency will be outweighed by the magnitude of the consequences facing the defendant.  In such an event, the constitutional right to a jury trial will apply, regardless of how the offense is categorized or labeled by the Legislature.  Ibid. (emphasis added).  The event envisioned by our Court that would trigger the right to trial by jury for DWI has not yet occurred.  Our Legislature has not added or increased the direct penalties for a third or subsequent DWI since 2015.  Defendant does not allege that to have occurred.  See Db15-17.  Without the trigger envisioned by Denelsbeck, the remedy envisioned by Denelsbeck is not yet available.  Defendant is not entitled to a jury trial.  Defendant’s request for a vacation of his conviction and remand for a jury trial, therefore, should be denied as contrary to Denelsbeck.  CONCLUSION
[brief] Due to the fact that reasonable alternative access was not actually available for use by [...] until November of 2011, a lengthy court battle ensued under [...] vs. State of New Jersey, by the Commissioner of Transportation v. [...], Superior Court of New Jersey Appellate Division Docket No. [...].  (DA 35).  The parties in the aforementioned case disputed the amount of compensation owed to Starvos, Inc. under eminent domain.  On May 30, 2014, the jury awarded $998,400.00 to [...] as just compensation for the value of the land that taken by eminent domain.  The net proceeds of this verdict only resulted in a payment to [...] in the amount of $30,179.73.  The proceeds of this verdict were distributed as follows:  (Da 172).  \[ \begin{align*} \$998,400.00 & \text{ Verdict} \\ \$202,103.09 & \text{ Interest on Verdict} \\ \$1,200,503.09 & \text{ Total Compensation} \\ -\$361,167.70 & \text{ Legal Fees ([...])} \\ \$43,456.14 & \text{ Legal Expenses ([...])} \\ \$77,059.17 & \text{ Appraisal Fees and Expenses} \\ \$410,000.00 & \text{ Deposit} \\ \$300,000.00 & \text{ Lienholders ([...])} \\ \$1,191,683.01 & \\ \$8,820.08 & \\ +\$21,359.65 & \text{ Trust Account ([...])} \\ \$30,179.73 & \text{ Net proceeds}  \end{align*}  \]  If this Honorable Court determines that the proceeds received for just compensation from the eminent domain ‘taking’, are to be considered a “sale” of [...] as set forth in the Property Settlement Agreement, then Plaintiff would only be entitled to 50% of Defendant’s 25% interest in the actual net proceeds.  Defendant’s 25% interest was $7,544.93.  Therefore, Plaintiff’s 50% share would be $3,772.46.  CONCLUSION  For the reasons stated above, Defendant [...] respectfully requests that this Honorable Court enter an Order reversing the decision of the Honorable [...] entered on May 3, 2023 and directing the Plaintiff to immediately return the full judgment amount of $91,250.00 delivered to her counsel by Defendant on June 2, 2023 and awarding Defendant counsel fees and costs associated with this appeal in an amount to be determined by this Honorable Court.
[brief] As he emerged from his vehicle, a black male nearly struck [...] with his vehicle as [...] stepped into the street.  [...] and [...], two seventeen-year-old females who were eyewitnesses, described the vehicle as a blue four-door Chevy Cavalier Wagon.  They testified that as [...] jumped out of the way, he screamed at the driver “stay the f--- out of the street,” and made a hand gesture similar to “giving the finger. ”  [...] put down the coffee cup he was holding, as if to prepare for a fistfight.  The driver of the vehicle, having already stopped his car, retrieved a gun from his glove compartment, emerged from his car with the gun in hand and said to [...], “I'll shoot you. ”  From a distance of seven to eight feet away, the driver shot [...] in the right knee.  Spence and Ford described the shooter as approximately six feet tall, weighing 180 pounds, dressed in blue shorts, a white t-shirt and with hair braided or in short cornrows down the back of his neck.  The first officer to arrive at the scene was [...], who spoke to Spence and Ford, and obtained from Ford a statement that “she thought she knew the suspect from the neighborhood,” but she did not provide his name.  Spence, in contrast, told Palinczar that she did not know who the suspect was.  She stated that all she saw was a car speeding away and [...] running toward her after he was shot.  After speaking with them briefly, Palinczar made arrangements for a detective to come to the scene to conduct a more detailed interview.
[brief] LEGAL ARGUMENT  I.  THE STATE OBJECTS TO THE DEFENSE’S POSITION THAT THE HOLDING IN A.A. APPLIES TO ADULT DEFENDANTS AND THAT THE STATEMENTS SHOULD BE SUPPRESSED BASED ON THE “FRUIT OF THE POISONOUS TREE” DOCTRINE.  The defense argues that the New Jersey Supreme Court’s analysis in Tiwana\(^1\) “makes it clear that A.A.\(^2\) is a relevant demonstration of the ‘functional equivalent of interrogation’ outside of juvenile cases. ” (Db 14).  Moreover, under the doctrine of “the fruit of the poisonous tree,” defendant’s statements during the phone calls to his parents must be suppressed as they are derivative of the suppressed formal interview by [...].  (Db. 18).  The State responds that the holding in A.A. does not create a *per se* rule that communication between a defendant and a parent in the presence of law enforcement is to be construed as interrogation requiring automatic Miranda\(^3\) warnings.
[directive] See note 3.  Throughout this Section, in pretrial services information input by the assessment" and "PSA" generally to the prf;trial risk refers "automated term the words, police and case is provided to prosecutors before the results that are assessment automated (noting that if the pretrial risk assessment program.  Cf. note 3 pretrial services reviewed by the program different from the computer-generated pretrial services is the approved by reviewed and at of initial charging, initiated by police/prosecutors the time assessment pretrial risk preliminary should be inform decision to when available, used to the assessment, pretrial risk updated the Section of of release pursuant to 7 and 8 this Directive).  revocation detention or seek pretrial for of the risk-assessment process accounts the general nature pretrial automated
[brief] Plaintiff argues in Point III of its brief that it complied with the procedural mandates of the Eminent Domain Act.  (Pb24)  It also advises the Court that it is willing to compensate Defendants for the fair market value of the subject properties.  (Pb18; 25).  Whether the Township is willing to pay just compensation is irrelevant for purposes of a challenge to the right to take – not to mention that just compensation is constitutionally mandated under Article I, paragraph 20 of the New Jersey Constitution and Fifth Amendment to the Constitution of the United States of America.  But the Township takes it even a step further by arguing that its offer was such that “Appellant stands to earn many times the value of its investment. ”  (Pb9)  Here again, the Township does not provide any citation to the record below because this was not at issue below, nor would it have been a permissible consideration in a challenge of the condemnor to take the property.  As such, this Court should disregard these arguments.  POINT III
[brief] The [...] argued, and the Arbitration Award acknowledged, that there are only three possibilities for the number of fiscal hours.  If the parties intended to use fiscal hours in the contractual equation, they could have written the contract to state base plus maintenance divided by fiscal year work hours times 1.5 - but they did not.  Additionally, there is no language stating “for example” or “i.e.” to support the Arbitrator’s finding that this language is “merely illustrative.
[brief] The trial court wrongfully determined that [...] will not be disadvantaged if [...] waived the Solicitaiton’s definition and resulting requirement that the archaeologist be PWCRA-registered.  Indeed, it is undisputed that the cost of [...]’s proposed PWCRA-registered archaeologist was approximately double the hourly cost of the non-registered archaeologists identified by [...].  0276a.  This cost difference alone, in a low-bid solicitation where a penny difference in bid prices can differentiate between the winning and second lowest bidder, is enough to confer a competitive advantage to those (like [...]) who skirted the rules and utilized un-registered and cheaper archaeologists.  The trail court’s conclusion that this cost difference did not solely cause [...]’s bid to be higher than [...]’s bids overlooks the fundamental purpose of public procurement laws.
[directive] III.  Definitions  “Conducted device” means any device approved by the Attorney General that is energy capable of firing darts/electrodes that transmit an electrical charge or current intended to temporarily disable a person.  “Fire” means to cause the darts/electrodes of a conducted energy device to be ejected from the main body of the device and to come into contact with a person for the purpose of transmitting an electrical charge or current against the person.  “Discharge” means to cause an electrical charge or current to be directed at a person in contact with the darts/electrodes of a conducted energy device.  means to discharge a conducted energy device where the main body of “Drive stun mode” the device is in direct contact with the person against whom the charge or current is transmitted.
[brief] In the 2022 version of the same application is the following: “12 or 15 plus passenger vans are ineligible for this program”.  (Ia592).  The 2019 version of the “Camps, Clinics & Conferences Application”, however, did not contain any such ineligibility clause.  [...] “suspect[s] that this change…in the form application…was added because of the events in this case. ” (Ia579).  underwriter on this case for [...] (“[...]”), enclosing [...]’s completed insurance application (Ia336; 122-126; 590-594; 581-590).  The application [...] sent [...] included the $1 million in “Non-Owned/Hired Auto” coverage.  (Ia122-126).  [...] was the national program administrator for [...]’s sports and entertainment insurance program.
[brief] The Legislature resolved these societal issues by a comprehensive adoption of statutes eviction and anti-eviction statutes.  The statutes provide fair, orderly and efficient remedies to protect tenants from wrongful eviction and the seizure of personal property by landlords.  *Vasquez, supra*, 83 N.J. at 105.  Those statutes also protect land owners from non-paying tenancies by swiftly regaining possession by summary proceedings for non-payment and for holdover after a lease has been terminated.
[brief] The “redelivery scheduled” notations on the tracking for earlier-dispatched mailings also weigh against a finding that the mail was “refused. ”  If [...] had rejected delivery of those items, why would the Post Office make another attempt at delivery?  It therefore seems that the lower court improvidently granted [...]’s motion to confirm substituted service by mail, and the resulting Order should not have been treated as definitive proof that [...] was “properly served process” on September 22, 2023 (Da2, Order).
[brief] 12-348, 2014 U.S. Dist. LEXIS 10794 (D.N.J. Jan. 29, 2014)  .................................................................24, 30  Neptune T.V. & Appliance Serv., Inc. v. Litton Sys., Inc., 190 N.J. Super 153 (App. Div. 1983) ..................................................30, 31 Nostrame v. Santiago, 213 N.J. 109 (2013)  ..............................................................................36  Ocean City Express Co., Inc. v. Atlas Van Lines, Inc., 194 F.Supp.3d 314 (D.N.J. 2016) .............................................................35  Rios v. Meda Pharm., Inc., 247 N.J. 1 (2021)  ....................................................................................21  State v. Steele, 430 N.J. Super. 24 (App. Div. 2013) .......................................................37  Worthy v. Kennedy Health System, 446 N.J. Super 71 (App. Div. 2016) ...........................................................21  Statutes New Jersey Franchise Practices Act, N.J.S.A. 56:10-1 et seq.......................passim Other Authorities  FTC Franchise Rule, 16 C.F.R. 436. 8 .........................................................28  FLORIDA FRANCHISE LAW, SBP FL-CLE 13-1 ........................................28  BUS. FRANCHISE GUIDE (CCH) ¶ 6421 ....................................................28  43 Fed. Reg. 59614 ..................................................................................28  PRELIMINARY STATEMENT  In the middle of 2008, [...] and [...], the original co-owners of Third-Party Plaintiff/Defendant [...]’ (“Plaintiff” or “[...]”), flew to California to meet with the head of Third-Party Defendant [...]
[brief] In addition, in her sentencing of [...], [...] improperly applied aggravating factors N.J.S.A. 2C:44-1(a)(1) (cruel, heinous “nature and circumstances” of the offense), 1(a)(3) (risk [...] will commit another offense) and 1(a)(9) (general and individual deterrence).  The language of N.J.S.A. 2C:44-1(a)(1) that the “nature and circumstances” of the offense and the [...]’s role, the language “including whether or not it was committed in an especially heinous, cruel or depraved manner,” is not mere Legislative surplusage.  It was clearly intended to apply in cases involving the commission of crimes involving violence such as murder, assault, robbery, arson, and similar crimes, and only then when the circumstances revealed conduct even more extremely and gratuitously harmful than that reflected in the Legislature’s definition of the crime itself.  And the majority of the cases which have applied this factor have done so only where the actor’s conduct was both violent and reflective of a penchant for the infliction of gratuitous suffering on his or her victim.  See Cannel, N.J. Crim. Code, Annot. Comment 3. to N.J.S.A. 2C:44-1, and cases cited therein.  Indeed, the only reported case applying this factor in a drug distribution case appears to be State v. Blow, 237 N.J. Super. 184 (App. Div. 1989), revd. on other grounds, 123 N.J. 472 (1991) (in which [...], who had extensive record assaultive crimes, and distribution, and who was at time of arrest on probation for same offense was observed over a period of time selling heroin within 1000 feet of a school).
[brief] The case of *Williams v. Ysabel*, et al. Superior Court, App.Div. [...], December 7, 2023 [Pa 172-183] is directly in point.  In *Williams* plaintiffs were passengers in an [...] automobile which collided with the Ysabel vehicle.  The Appellate Division directed the trial court to proceed as follows:  “Under the FAA and [New Jersey Arbitration Act], a court must stay an arbitrable action pending the arbitration” (citing 9 U.S.C. Section 3, N.J.S.A. 2A:23B-7(g).  Accordingly, we remand the case with an instruction that the judge enter a new order compelling plaintiffs to arbitrate their claims against the [...] defendants and staying the Law Division action, including the claims against the other defendants…claims against parties who have not agreed to arbitrate should be stayed pending the arbitration. ”  Opinion  Williams v. Ysabel, et al., Docket No. [...] September 7, 2023 p 11-12.  (bold added).  [Pa 182-183].  **CONCLUSION**
[brief] The location and extent of the existing Cell Tower and its associated existing site improvements have been shown on the survey and site development plans submitted to the Board.  (Pa138; Pa139-185; Pa186).  (Showing the Cell Tower is depicted on 33 sheets of the 47-sheet plan set, including the site survey, and every other site plan drawing that shows the Property in the vicinity of the Cell Tower.)  The Application was found to be administratively complete, and the Board found that they were configured appropriately as a Planning Board to hear the Application.
[brief] In its Statement of Reasons supporting its order to disclose the information, it contends that its “holding in this matter is limited to the unique facts of this case, in conjunction with the Appellate Division’s decision on remand, and it does not create a new standard for records custodians under OPRA. ”  (Da 114)  That reasoning is faulty, because the Appellate Division appropriately wanted a review of the Criminal investigatory report in camera to ascertain what was actually in the report.  (Da78-80).  The Appellate Division, however, did not compare the deficiencies in the OPRA request with the obligation of the municipality to release “information”.  Its order on remand, thus, could be construed as overly broad.  However, the court did say:  We therefore remand for the trial court to undertake the necessary in camera inspection to enable the trial court to exercise its role in assuring that documents and information are not improperly withheld under OPRA.  We leave the scope and breadth of the in camera inspection to the discretion of the trial court.  (Da80)  The Appellate Division gave significant leeway for the trial court to make an appropriate ruling.  The trial court, however, interpreted that remand order overly restrictively and failed to discern whether any “information” was improperly withheld.  Inasmuch as “information” was not requested, there was no improper withholding.  Accordingly, the trial court’s order to disclose the “information” should, respectfully, be reversed.
[directive] Is aComplaint-Warrant for Application  When Report 4.11  Directive this pursuant acomplaint-warrant to for applies agency enforcement law  If a complaint- a to issue declines application reviewing the officer court other or judge the and facilitate to acomplaint-summons, of issuance the directs or issues instead but warrant general attorney deputy or prosecutor assistant or the officer the system of the evaluation a on denial of the circumstances the document shall 3.2
[brief] The Initial Complaints and The Motion to Dismiss | 7 | | II.  The Fourth Amended Complaint | 8 | | III.  Discovery and Summary Judgment Proceedings | 8 | | IV.  2023 Amendments to the NJFCA | 9 | | V.  The State Vetoes Dismissal on Public Disclosure Grounds | 11 | | VI.  The Trial Court’s Decision on Summary Judgment | 11 |  TABLE OF CONTENTS (cont’d)
[brief] (Da17-18, Lease at § 4.02).  Section 4.02 provides the following, in relevant part:  --- ⁷  The Lease further provides Landlord with the option to prepay the Tenant Allowance to avoid the five-percent (5%) annual interest component.  (Da17-18, Lease at § 4.02 (“Notwithstanding the foregoing, Landlord shall have the right to elect, at any time at its sole option, to pay the entire outstanding amount of Tenant’s Allowance to Tenant. ”)  (emphasis added)).  ...  Landlord shall pay to Tenant **up to** the sum of Seven Hundred Thirty Thousand and 00/100 ($730,000.00)  Dollars in the following manner as reimbursement for the actual cost of Tenant’s leasehold improvements comprising Tenant’s Work as and for “Tenant’s Allowance. ”  **Provided that** (a) this Lease is in full force and effect, (b) **Tenant is not in monetary default under this Lease after notice and expiration of any applicable cure period**, (c) the Guarantor is not in default under the Guaranty and (d) the aforesaid conditions shall have been satisfied, Tenant’s Allowance, together with interest at the rate of five (5%) percent per annum on the unpaid balance of Tenant’s Allowance from and after the Rent Commencement Date, shall be paid to Tenant in six (6) equal annual installments (plus interest as aforesaid) as follows:
[brief] (2T25:8-26:2)  “[...] attempted to re-litigate the Court’s order in other forums which, again, in the Court’s view threatens the company’s ability to function, because of these enormous attorneys’ fees and other costs. ”  (2T26:4-8)  Thus, the trial court ordered [...] to withdraw or replead the SDNY Action, “by June 5th or the Court will make him responsible for any attorneys’ fees and costs… incur[ed] in the New York action. ”  (Da1929-1930)  The trial court also found that “financial sanctions are warranted to compel [...] Conway to comply with the Court’s January 28th, June 7th orders,” which “[h]e has continually violated. ”  (Da1931-1932)  H.
[directive] Appear to Failure the and second-degree crime or afirst- for is charge present the if detention risk pretrial automated the by determined score (NCA)  Activity Criminal or New (FTA) within delinquent adjudicated been had juvenile a as defendant the and or 6 4, 5, is assessment adult an by committed if crime or that firearm, a involving a crime for a ten years preceding the any commit to attempt an or 2C:43-7.2, N.J.S.A. Act, Release Early
[brief] In *First New Jersey Bank*, the defendants argued that they should be given the benefit of equitable considerations in construing and applying the guarantee agreement.  In response, the court stated:  "While it is true that the courts of this state have long possessed the power, both in law and in equity, to relieve a party from the burden of the agreement .... this is not a case for the application of such power.  The parties freely entered into the guarantee agreement knowing full well of the impact of the same.  This was a business transaction, and there were other sources of financing which could have been explored (such as other banks, private lenders, commercial factors, etc.) if defendants did not wish to sign such an all inclusive guaranty agreement.  Although in the appropriate case the mere existence of the commercial setting need not preclude the court’s exercise of its equitable jurisdiction, the facts here do not entitle defendants to such relief …
[brief] *N.J. Dep't of Cmty. Affairs, Sandy Recovery Div. v. Maione,* 456 N.J. Super. 146, 155 (App. Div. 2018) held that the Court will: “defer to an agency's interpretation of . . . [a] regulation, within the sphere of [its] authority, unless the interpretation is 'plainly unreasonable. ’”  *U.S. Bank, N.A. v. Hough,* 210 N.J. 187, 200, 42 A.3d 870 (2012) (alterations in original) (quoting *In re Election Law Enforcement Comm’n Advisory Op. No. 01-2008,* 201 N.J. 254, 262, 989 A.2d 1254 (2010)).  However, an appellate court is not “relegated to a mere rubberstamp of agency action,” but rather must “engage in a ‘careful and principled consideration of the agency record and findings.
[brief] (Da622)(emphasis added)⁶  “[[...]] has not attempted to find an alternative easement from any of his several other neighbors, including [...] who prevailed on summary judgment as to the existence of an *express easement* and the lack of a prescriptive easement. ” (Da632)(emphasis added).  [...] appealed that decision to the Appellate Division, which affirmed it in an opinion issued March 16, 2010 (Da634-Da643).