ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The issue is not merely whether the plaintiff observed the raised barricade foot that caused her to trip and fall or, in the exercise of reasonable care, would have observed the condition, but, also, whether a reasonably prudent person, faced with such a condition would have elected to proceed and whether, as she was proceeding, she exercised reasonable care.  Bates, 86 N.J. Super. at 13.  In fact, the plaintiff testified that she did not see the raised foot of the barricade when it caught her foot and caused her to fall.  (Pa77 at 77:12-16).  Although the plaintiff testified that she saw a raised foot on the barricade when entering the store, a jury could find that the plaintiff was not unreasonable for not noticing the raised foot that caused her to fall or not remembering the location of the raised foot she saw earlier while negotiating the barricades erected by defendant [...] while exiting the store and walking to her car.  Even if there were evidence establishing that the plaintiff was negligent and that her negligence was a proximate cause of her fall, that would not entitle the defendants to judgment as a matter of law.
[directive] 1.  The prosecuting attorney and the defendant may agree to any other terms regarding the disposition of the matter that are permitted by law and deemed acceptable by the Page 7 parties, provided that the final agreement includes the Section 12 waiver of mandatory parole ineligibility as described above.  When the parties are unable to agree on all terms of a plea agreement, they may agree to leave certain matters to the discretion of the court at sentencing, provided that the agreement includes the Section 12 waiver.  2.  In formulating a plea offer, the prosecuting attorney shall consult the Revised Guidelines, but shall not be bound by its provisions.  As in any case not Brimage subject to those Guidelines, prosecuting attorneys shall exercise their judgment to ensure that plea offers reflect the nature and circumstances of the offense, the defendant’s criminal history, and any aggravating or mitigating circumstances.  Supervisory prosecutors shall ensure that attorneys working under their supervision seek uniformity in the terms of plea offers extended to similarly situated defendants.  3.  The prosecutor is permitted to offer, and the parties may agree to, a provision of a plea agreement whereby the court at sentencing is authorized to decide whether to impose an additional, discretionary period of parole ineligibility, pursuant to N.J.S.A. 2C:43-6(b), if the court is clearly convinced that the aggravating factors substantially outweigh the mitigating factors.  Any such period of discretionary parole ineligibility would be served in addition to the period equal to one-third of the sentence, less prison credits, described in Section I.A above.  4.  Nothing in this Directive prohibits a prosecuting attorney from seeking a mandatory extended term pursuant to N.J.S.A. 2C:43-6(f), provided that the prosecuting attorney agrees to waive the extended period of mandatory parole ineligibility pursuant to Section 12.  B.
[brief] #### STATE CASES | Case | Page(s) | |----------------------------------------------------------------------|---------| | Atl. City Superior Officers' Ass'n v. City of Atl. City, No. A-3117-20, 2022 N.J. Super. Unpub. LEXIS 1194 (App. Div. June 30, 2022) | 5-7, 13-14 | | Barila v. Bd. of Educ. of Cliffside Park, 241 N.J. 595 (2020) | 14 | | Matter of Morris School Dist. Bd. of Educ., 310 N.J. Super. 332 (App. Div. 1998) | 14 | | Pa. Greyhound Lines, Inc. v. Rosenthal, 14 N.J. 372 (1954) | 14-15 | | Phillips v. Curiale, 128 N.J. 608 (1992) | 14-15 | #### STATE STATUTES | Statute | Page(s) | |------------------------------------------------------------------------|---------| | N.J.S.A. 34:11-4.1 | 11 | | N.J.S.A. 34:11-57 | 11 | | N.J.S.A. 34:13A-16 | 5, 10-11| | N.J.S.A. 52:27 BBBB-1 | 1 | | N.J.S.A. 52:27BBBB-5 | 5-9 | PRELIMINARY STATEMENT Respondents/Defendants, the [...] (“City”), [...] (“State”), the Director of the [...] (“DLGS”) in the [...] (“DCA”) and [...], Commissioner of the DCA (collectively “Defendants”), continue to argue that the New Jersey Municipal Stabilization and Recovery Act (“MSRA”), N.J.S.A. 52:27 BBBB-1, et seq., P.L. 2016, c. 4. authorizes limitless power to deprive the police officers represented by Appellants/Plaintiffs, the [...] (“ACPBA”) and the [...] (“ACSOA” together with the ACPBA “Police Unions”), of basic wage and hour rights.
[brief] 13 - **State v. Governor**, 25 N.J.L. 331 (1856) .......................................................................  8 - **State v. McNeil-Thomas**, 238 N.J. 256, 272 (2019) .................................................... . - **State v. Mohammed**, 226 N.J. 71 (2016) .....................................................................  5 - **Vas v. Roberts**, 418 N.J. Super. 509 (App. Div. 2011) .................................................. 8  #### Statutes - **N.J.S.A. 19:16-3** ...........................................................................................................
[brief] While it is difficult to decipher the arguments Plaintiff makes in support of his appeal, there is no doubt that Plaintiff’s appeal brief does not once cite R. 4:49-2, the operative court rule which sets forth both the time within which Plaintiff had to file his motion for reconsideration (20 days) and Plaintiff’s burden on the Motion.  R. 4:49-2 requires that a motion for reconsideration “shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred, and shall have annexed thereto a copy of the judgment or order sought to be reconsidered and a copy of the court’s corresponding written opinion, if any. ”  A review of Plaintiff’s Appeal Brief also discloses that he does not mention the words “abuse of discretion” once, much less address how the trial court abused its discretion in denying his motion for reconsideration.  By failing to address how the trial court abused its discretion in denying his motion for reconsideration, Plaintiff has also waived that argument.  *W.H. Industries, Inc.*, 397 N.J. Super. at 459.  For that reason alone, Plaintiff’s appeal should be dismissed.
[brief] POINT II  The Trial Court Overlooked that the Underlying Purpose for the Subpoena is to Harass [...].  (819a-821a)  A.  The subpoena does not seek any relevant information.  As stated above, [...] has not demonstrated that [...] has any information which cannot be discovered during the normal course of discovery.  Discovery constituting a “‘fishing exhibition’ to establish otherwise unsupported accusations” is not permitted by the Court.  Perform Content Servs. v. Ness Global Servs., 2021 N.J. Super. Unpub. LEXIS 1597 (N.J. Sup. Ct. July 2, 2021).  Closely scrutinizing the request for third-party discovery it is clear that nothing has been provided demonstrating the necessity for [...]’s deposition other than a desire to harass [...] and force him to appear at a deposition where he does not have any direct knowledge.  [...] notes that [...] is listed as a relevant witness in a document prepared in the Underlying Litigation without his knowledge or involvement and that somehow requires that he appear for a deposition.  However, [...] has not cited to any case law which demonstrates that the inclusion of [...] on this document mandates that he be deposed.  B.  The subpoena seeks duplicative discovery.  Any information related to [...], [...] or [...] can be or has already been obtained in the Underlying Litigation.  [...] has no direct relationship with any of the [...] entities and therefore any topics related to his deposition would be duplicative of discovery in the Underlying Litigation.  It is clear that because [...] has been unable to obtain information from the Defendants in the Underlying Litigation, it has decided to subpoena [...], a non-party.  Respondents have failed to establish that it cannot or is unable to obtain the same information in the Underlying Litigation rather than harassing and requiring a non-party to be deposed related to information which conceivably is available from the parties in the Underlying Litigation.  C.  The Cited Orders are Relevant.
[brief] Specifically, [...] claimed that it transferred Appellant, over her objection, to “remove” her from a dangerous situation.  1T86:1-24.  However, a reasonable juror could readily conclude that [...] Respondents “removed” her as punishment for interfering with its contractual relationship with [...].  [...] noted this fact during the August 30, 2022 Oral Argument, stating “I understand that.  I – I understand that.  But you know, you’re – you’re – \(^8\) “[A]n actionable claim under the LAD based upon a hostile work environment frequently arises out of repeated incidents that take place over time and by their cumulative effect make it unreasonable and unhealthy for plaintiff to remain in that work environment. ”  \textit{Caggiano v. Fontoura}, 354 N.J. Super. 111, 126 (App. Div. 2002).  you’re saying you’re protecting her by taking her out of there, and [...] is saying, you know, what, you’re moving her in – as a – as punishment.  What am I supposed to do with these – with – with – coming from two different fact patterns of though processes as it relates to, you know, why she was removed, why she wasn’t moved?  Isn’t that a jury question?”  See 1T97:4-12.  Respondents’ retaliatory motive is bolstered by (i) the timing of the retaliation, (ii) its refusal and failure to investigate, (iii) its failure to document any findings or follow-up with Appellant or [...], (iv) its failure to take remedial action, (v) its refusal to address follow-up complaints of retaliation after Appellant [...]’s transfer and while she was on leave, (vi) downplaying the harassment and focusing on baseless allegations regarding Appellant’s clothing and socialization, and (vii) its complete failure to follow its own policies to investigate and remediate the harassment/retaliation.  At the very least, whether the actions of the [...] Respondents created a sexually harassing hostile work environment is an issue of fact for the jury to determine.  In sum, Respondents alleged legitimate non-discriminatory and non-retaliatory justifications are fraught with discrepancy, weakness, inconsistency, falsehood, and contradiction; the temporal proximity between the protected conduct, failure to follow progressive discipline, failure to discipline others, and the refusal to investigate and remediate the workplace, among other things, which supports retaliatory motive and pretext.
[brief] Specifically, [...] expressed disbelief at what [...] said, saying, “[...], come on man, let’s be real here,” and “Let’s be real bro. ”  (Da 45)  In response, [...] told the detectives, “I’ve got a lawyer coming cause I ain’t do nothing bro,”\(^6\) (Da 45) after which [...] encouraged him to continue speaking by asking, “Haven’t I always been straight with you?,” telling him “some things aren’t, aren’t jiving bro,” and asking “Do you want to give us a statement?”  (Da 46)  At this point, [...] interrupted, and while he began by trying to stop [...] from speaking without being apprised of his rights, (Da 46-51) he too engaged in impermissible interrogation.  For example, [...] directly asked [...], “You’re, you’re friends with [...], right?”, to which [...] responded that “they got me caught up in this bullshit. ”  (Da 51)  [...] then continued to encourage [...], saying, “[...], I’m gonna be straight with you, I, I don’t think you had anything to do with [...]’s death with the stabbing part. ”  (Da 52)  Later, [...] again tried to keep [...] talking, telling him: “[...], like I just said to you a little bit ago, since we talked to you the first time, a lot more evidence has come to light. ”  (Da 57)  When [...] responded that this “evidence” is “a lot more lies,” [...] continued, saying, “Lies, evidence that’s why I want to talk to you and --- \(^6\)  This unambiguous invocation of the right to counsel will be addressed in Subpoint B.
[brief] Review of the entirety of the questioning of [...] demonstrates that the thrust of defendant’s questioning was to suggest that the police had acted arbitrarily in focusing on only the defendant when his brother was possessed of the same motive.  It is without dispute that the now-objected-to testimony was explicitly framed as being responsive to the implications made by defense counsel’s cross-examination question, with this line of redirect starting with the prosecutor asking, “And there were some questions on cross about you speaking to – whether or not you ever spoke to [...]. ” (17T:224-3 to 224-16).  Thus, it is clear that [...]’s testimony was not geared on prejudicing the defendant by implying the police had superior information to that presented to the jury; it was geared solely to rebutting the implication already made by the defendant that the investigation was deficient and arbitrarily focused on him.  Furthermore, review of the entirety of cross, redirect and re-cross makes clear that the sergeant’s testimony did not in substance imply to the jury that the police were in possession of information not presented to the jury.
[brief] He discussed the Legislature’s “Findings, Declarations Relative to Compulsory Arbitration Procedure” as set forth in N.J.S.A. 34:13A-14.  (Award, at 30); the Special Municipal Aid Act (Law), N.J.S.A. 52:27D-118.24 et seq. (SMAA), which gives the State DCA fiscal control the City’s finances because the City receives transitional aid from the State, (Id., at 33-36), the Memorandum of Understanding (MOU) that the State DCA required the City to enter into to receive transitional aid ( Id., at 36-39), the need for the interest arbitration procedure in the NJEERA to be harmonized with the SMAA in regard to the handling of this matter.
[brief] Director of Operations  [...] testified that she was never notified of any safety concerns in the parking lot by employees until after the death of [...].  Complaints included people texting while driving, and people walking through the parking lot texting with their heads down.  (Pa570:3-Pa585:13).  Q:  Did anybody comment to you, well, there’s no sidewalks in the parking lots where we have to park, there’s no crosswalks, center crosswalks, we have to cross in the middle of middle aisles without the use of crosswalks or anything, did anyone complain to you in the email?  A: No, not specifically what you are commenting on.  Q:  What does that answer mean, not specifically, did anybody complain, do you have written complaints prior to the date of October 6, 2021 of complaints about your parking lot arrangements?  A: I don’t believe - - MR.  DICROCE: Objection.  Go ahead.  A:  I don’t believe it was emails but it was a feeling of fear from team members after the accident or worry because of - (Pa570:3-18).  -----  Q:  Did they mention to you about no signage, lack of signage, lack of speed, no cones, no security personnel, no sidewalks, not enough crosswalks, no safety mats, did they mention any of that in writing?  A:  I don’t recall receiving any emails and I don’t recall specifically team members mentioning the items that you mentioned.  And they were worried about things not necessarily connected to this incident.  But it would be team members on phones or, you know, driving too fast, it was, you know, nothing that was related to an incident.  It was just an overall feeling of wanting people to be careful there because there was a heightened worry after this incident.
[brief] Also, the State is unable to identify any policy reason for not recognizing a Pennsylvania gun license.  New Jersey does not have any “real feeling of antagonism against [carry permits] in general. ”  See Fetter, 341 U.S. at 612.  In fact, New Jersey has a statute which specifically creates a procedure for obtaining a carry permit.  N.J.S.A. 2C:58-4.  Further, New Jersey and Pennsylvania’s carry permit statutes are nearly identical.
[brief] Defendant then called his mother “around six o’ clock,” and told her to come home because “it’s an emergency. ” (21T:135-19 to 136-20).  He called her again a few minutes later to see how far away she was, and he stated that she was “almost home. ”  Ibid.  Defendant initially claimed she got home 15 to 20 minutes later, and when she arrived, he stepped past [...]’ body to go to her and tell her “It was self-defense mom.
[brief] [(8T 83-21 to 84-18)]  The court felt it was entitled to consider [...]’s dismissed FV complaints as evidence of the “kind of a life [[...] was] leading”—that he had “had constant run-ins with the criminal justice system. ”  The court also relied on these complaints to conclude that [...] “does have a history of assaultive behavior. ”  (8T 105-18 to 20)
[brief] POST-CONVICTION  PROCEEDINGS  On June 26, 2018, [...] filed a pro se PCR petition.  (Da121-93)  On September 27, 2018, PCR counsel sent a letter to [...] regarding preservation of the hard drive, and on April 24, 2019, he filed a Motion To Compel Discovery (the hard drive).  (Da194-96)  [...] filed a counseled PCR brief and appendix, and on May 18, 2020, an amended verified petition based on ineffective assistance of counsel and newly discovered evidence.  (Da197-224)  On October 5, 2020, [...] filed an expert report on misidentification by [...] and on November 6, a Second Motion to Compel Discovery (for discovery from [...]’s murder and [...]’s indicted cases).  (Da225-94, 295-96)  On March 11, 2021, [...], J.S.C., heard argument but did not enter a decision.
[brief] The Council is not strictly an advisory body that has private members like some other agencies of state government.  While the Commissioner of the DEP has the authority to approve the CBBMP formulated by the Council, the Council retains substantial independent authority.  The Commissioner has no authority over the Council’s day-to-day activities; moreover, the Commissioner does not have veto authority over the Council’s regulations.  For these reasons, the court should have invalidated the Council’s regulations on the basis of the private non-delegation doctrine.8  8  While the private non-delegation doctrine may have been followed in theory, but not in practice by the United States Supreme Court for many years after the Carter Coal Co. case (see note 5, infra), as long as Congress provided “an intelligible principle” to guide the regulatory agency in the enabling legislation, a recent trend has been manifested in dissents by conservative members of the Court and in the granting of certiorari to put more teeth into the non-delegation and private non-delegation doctrines.
[brief] Because the Contract contains the very same language that the Atalese contract lacked, Atalese has no bearing on Plaintiffs’ appeal.  Plaintiffs also cite Vitale, a case about the enforceability of contractual liability waivers.  Vitale v. Schering-Plough Corp., 231 N.J. 234 (2017).  While [...]’s Contract contains certain liability waivers, their enforceability was never an issue before the Superior Court.  Moreover, Vitale simply stands for the proposition that certain attempts to waive liability for personal injury are invalid under Sections 39 and 40 of the Worker’s Compensation Act.  Id. at 240–41.  This case involves neither personal injuries nor the Worker’s Compensation Act.  The other cases cited by Plaintiffs are similarly inapplicable.  In Kernahan, the arbitration provision was hidden in a section of the contract labeled “MEDIATION”—an unacceptably confusing circumstance.  Kernahan v. Home Warranty Adm’r of Fla., Inc., 236 N.J. 301, 308 (2019).  Unlike the Kernahan contract, [...]’s Contract had a clearly-marked arbitration provision which explained the nature of the arbitration proceedings to which the parties agreed in advance.  In Hirsch, which Plaintiffs also cite, there was no contractual language signaling an agreement to arbitrate—because such language is clearly present here.  *Hirsch v. Amper Fin. Servs., LLC*, 215 N.J. 174, 179 (2013).  And *Delaney* is also inapplicable; it simply held that an arbitration provision existing between an attorney and his client is unenforceable against the client, if the attorney failed to explain the arbitration provision.  *Delaney v. Dickey*, 244 N.J. 466 (2020).  Below, the Superior Court explained that “Plaintiffs have not identified how this arbitration contract is unenforceable. ”  [Pa256]  The same can be said here.  [...] represented that he read, understood, and agreed to the terms in the Contract.
[brief] ”  Id. (Emphasis added).  In finding that “dismissal” of the charges was enough to trigger the accrual date, the [...] court “h[e]ld that a Fourth Amendment claim under § 1983 for malicious prosecution does not require the Appellant to show that the criminal prosecution ended with some affirmative indication of innocence.  A plaintiff need only show that the criminal prosecution ended without a conviction. ”  Id. at 1341.  [...] eliminated the need for a show of “innocence” as a way to define “favorable,” see id. at 1335 (“This case requires us to flesh out what a favorable termination entails. ”), supports Appellant’s position that a reversal alone is not enough to “terminate” a case as [...]’s case was actually terminated by way of a “dismissal. ”  Id. at 1335 (“To maintain that Fourth Amendment claim under § 1983, a plaintiff such as [...] must demonstrate, among other things, that he obtained a favorable termination of the underlying criminal prosecution.  Cf. Heck v. Humphrey, 512 U.S. 477, 484 [] (1994))”.  Under Heck v. Humphrey, 512 U.S. 477 (1994), a plaintiff is barred from bringing a claim pursuant to 42 U.S.C. § 1983 if a judgment in his favor would demonstrate or imply the invalidity of a criminal conviction.
[brief] (Pa0798 at 16:8-11).  The settlement was recommended for “immediate repair”.  (Pa1193).  Given the settlement in the roadway, the section of roadway should have been re-paved.  (Pa0599).  However, [...] should have also ensured that warning signs were used pursuant to the MUTCD.  (Pa1337).  Ironically, [...] acknowledges that the MUTCD is to be followed after a dangerous condition has been identified.  (Db25).  Just as [...] brief indicates, MUTCD provides support for the uses of warning signs “where there exists some known identifiable road condition”.  (Db28).  When viewing the facts in the light most favorable to the Plaintiffs, the dangerous condition that caused Plaintiff’s accident had been identified and was known to [...] and the other Defendants.