ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] ”  *SSI Medical Servs. v. HHS, Div. of Medical Assistance & Health Servs.*, 146 N.J. 614, 621 (1996).  Here, the postcard was undisputedly mailed to [...]’s home address.  (Pa14).  The Division went so far as to hire a company, [...], to mail postcards to all 200,647 SPRS retirees at their home addresses on file with the Division.  (Pa83-85).  And a postcard was indeed mailed to [...]’s last home address on August 9, 2019.  (Pa14; Pa85).  Nonetheless, [...] asserts, without offering any legal authority, that his affidavit declaring that he never received a postcard should overcome the presumption that he received it.  (Pb13-14).  Still, despite the Board’s having satisfied the notice requirement under the Ricci Act, it nevertheless considered [...]’s request under its inherent equitable power.
[brief] When [...] entered an Order for Bench Warrant and Bail Forfeiture (Da27a), [...] moved this Court for either a stay of execution of sentence pending further appeal or vacation of his sentence and a remand to Law Division to permit allocution.  See Da28a-29a.  This Court denied the stay but remanded the matter for resentencing before a different judge.  Da30a.  On December 7, 2023, the parties appeared before the Hon. [...], P.J.Cr., who denied [...]’s stay request and sentenced him as before.  8T21-21/22-3.  [...] was jailed that day.
[brief] On May 23, 2023, [...], a forensic toxicologist, explained that BZE is the metabolite of cocaine that may be “present from up to a day from use. ” (2T15-17 to 23).  While BZE has a longer half-life presence in the blood compared to the active form of cocaine, [...] noted that the blood evidence collected by the hospital (not police) was done so using lavender-top tubes, expediting the metabolization of cocaine and/or dissipation of BZE.  (2T15-24 to 16-3).  Still, toxicological blood results revealed the remaining half-life of the BZE in defendant’s blood was 160 nanograms per milliliter.  (2T15-11 to 14).  [...] explained the bell-curve representation of how more cocaine leads to more BZE and how its dissipation is contingent on the timing and amount of cocaine consumed.  (2T39-16 to 40-3).  While at a different rate, both the cocaine and BZE follow a bell-curve as it relates to their presence in the blood.  *Id.*  [...] explained that a drug introduced into the system (e.g., cocaine) will be absorbed and eventually reach peak concentration before dissipating.
[brief] Furthermore, as the New Jersey Supreme Court noted in J&M Land Co., the 60-year statutory period may apply because the portion of the Property which [...] uses periodically for parking is uncultivated.  See J&M Land Co. v. First Union Nat’l Bank ex rel. Meyer, 166 N.J. 493, 518-520 (2001).  As the pictures demonstrate (Pa182 and Pa185), the Bergen St. side of Lot 22 is undeveloped and enclosed from the Bergen St. side.  [...] has attempted to claim that portion of [...]’s Property for its own (sometimes with thinly-veiled tactics\(^{11}\)), but has failed to provide documentary proof sufficient to support a claim for adverse possession.
[brief] .................................  10  Hill v. New Jersey Dep’t of Corr. Com’r Fauver, 342 N.J. Super. 273, 309 (App. Div. 2001)  .........................................................  10  Maldonado v. New Jersey, ex rel. Admin. Office of Courts-Prob. Div., 225 F.R.D. 120, 136-37 (D.N.J. 2004)  ...........................................  10  Matter of Petition for Rev. of Opinion 552 of Advisory Comm. on Pro. Ethics, 102 N.J. 194, 204 (1986)) ..............................................  10  Motorworld, Inc. v. Benkendorf, 228 N.J. 311, 329 (2017)  ......................  8  Rohm & Haas Co. v. Am. Cyanamid Co., 187 F. Supp. 2d 221, 226 (D.N.J. 2001)) .........................................................  10  State v. Camey, 239 N.J. 282, 306 (2019)  ...........................................  8 State v. Courtney, 243 N.J. 77, 85 (2020)  ...........................................  8  State v. K.W., 214 N.J. 499, 507 (2013)  ...........................................  8  Thieme v. Aucoin-Thieme, 227 N.J. 269, 283......................................  8 OTHER Mandel, N.J. Appellate Practice § 34:2-1 (2022)...............................  8 RPC §1.7, Conflict of Interest: General Rule.  .....................................  9, 11  PRELIMINARY STATEMENT
[directive] The arrestee is to be informed as to the agency taking charge of his or her dependents.  3.2.3  When the arrestee has dependents requiring their care, a record is to be made indicating the arrangements made for the care of those dependents.  The record shall contain, at a minimum, the person or agency taking charge of the dependent, the name of the agency's representative and a phone number, and information as to how the arrestee can regain custody of the dependent child or person when released from custody.
[brief] DIVISION  OCEAN COUNTY  Docket No.: [...] SAT BELOW  Honorable [...], A.J.S.C. RESPONDENT’S BRIEF [...]  Attorneys for Plaintiff/Respondent Coast Capital Building [...] [...]  [...]  [...]  [...], Esq. Of Counsel & On the Brief  [...], Esq.  On the Brief Dated: November 20, 2023  TABLE OF CONTENTS  TABLE OF AUTHORITIES .................................................. iii  TABLE OF APPENDIX ...................................................... vii  PRELIMINARY STATEMENT .............................................  1 COUNTERSTATEMENT OF PROCEDURAL HISTORY ...............  3 COUNTERSTATEMENT OF FACTS .....................................  9  LEGAL ARGUMENT .........................................................  15  POINT I: APPELLANT’S CLAIM THAT THE TRIAL COURT ERRED BY RULING THAT THE BOARD LACKED JURISDICTION TO ASSESS THE VALIDITY OF RESPONDENT’S USE IS INCORRECT .................... 15 POINT II: AS APPELLANT FAILED TO PRESENT ANY ORDINANCE THAT WAS PURPORTEDLY VIOLATED BY RESPONDENT’S ALLEGED “NON-CONFORMING USE” OR ANY OTHER PROOF THAT RESPONDENT’S USE WAS IN ANY PERTINENT RESPECTS NON-CONFORMING THE COURT PROPERLY DENIED APPELLANT’S CLAIM AT THE THRESHOLD LEVEL .................................................................  27 POINT III: APPELLANT IS INCORRECT THAT THE BURDEN OF PROOF AS TO THE LEGALITY OF A NONCONFORMING USE FALLS ON THE PROPONENTS OF THE USE RATHER THAN ON THE “INTERESTED PERSON” BRINGING THE APPLICATION TO THE BOARD .................................................................  32 POINT IV: THE TRIAL COURT CORRECTLY ADOPTED AND APPLIED THE CHANCERY COURT’S DETERMINATION THAT THE AGREEMENT GOVERNED THE ISSUE OF PARKING ON LOT 5 AND APPELLANT’S ARGUMENT TO THE CONTRARY IS MERITLESS .................................................................  38  POINT V: APPELLANT’S CLAIM THAT THE TRIAL COURT ERRED BY DENYING ITS MOTION IN LIMINE IS MERITLESS .  .41  POINT VI: APPELLANT’S CLAIM THAT THE TRIAL COURT ERRED IN ITS RULING THAT THE BOARD LACKED JURISDICTION IS MERITLESS FOR REASONS ALREADY DISCUSSED ..............................................43  POINT VII: THE POINTS RAISED BY APPELLANT IN POINT VII ARE ALL LACKING IN MERIT ...........................................45  CONCLUSION .................................................................50  ###  TABLE OF AUTHORITIES
[directive] Going forward, and consistent with training provided to other Divisions within the Department of Law & Public Safety, [...] shall participate in the cultural diversity training offered by the Attorney General’s Office through the Community Law Enforcement Affirmative Relations (CLEAR) Continuing Education Institute.  In addition, [...] shall undertake anti-bias training for its investigators and attorneys—not simply to ensure that the agency treats all New Jersey residents with dignity and respect, but also to ensure that the implicit biases we all carry do not inadvertently affect [...]’s enforcement work.  To the extent appropriate, [...] shall partner with stakeholder groups such as the [...] Page 5 and [...] to carry out this mission of inclusivity and cultural diversity awareness.
[brief] The Limited Common Knowledge Exception is Inapplicable because the Average Lay Juror Does Not Have Knowledge of the Duties of Professional Engineers’ Code of Ethics or their Professional Standard of Care.  The limited common knowledge exception is inapplicable because the average lay juror does not have knowledge of the duties of professional engineers’ code of ethics or their professional standard of care.  The common knowledge exception provides that an affidavit of merit is not required to support a claim of malpractice where a person of reasonable intelligence can use common knowledge to determine that there was a deviation from the acceptable standard of care.  Cowley v. Virtua Health System, 242 N.J. 1, 9 (2020).  There are rare exceptions in which the common knowledge exception applies and this is only "where the carelessness of the defendant is readily apparent to anyone of average intelligence."  Rosenberg v. Cahill, 99 N.J. 318 (1985).  The primary purpose of the affidavit of merit statute is to "require plaintiffs . . . to make a threshold showing that their claim is meritorious,” however, "[i]f jurors, using ordinary understanding and experience and without the assistance of an expert, can determine whether a defendant has been negligent, the threshold of merit should be readily apparent from a reading of plaintiff’s complaint."  Cowley v. Virtua Health Sys., 242 N.J. 1, 17 (2020).  Accordingly, the common knowledge exception is applied only when expert testimony is not required to prove a professional defendant’s negligence.
[brief] In addition, [...] failed to distinguish the controlling case, Arizona v. Fulminante, 499 U.S. 279 (1991), in which the United States Supreme Court suppressed a statement where an agent of the police promised the defendant protection from “rough treatment” by other inmates because, even though the threatened harm was from a third party, it was “a credible threat of physical violence” made by a government agent to coerce a suspect into confessing.  Id. at 286-88; accord State v. Hickman, 335 N.J. Super. 623, 632 (App. Div. 2000) (“[A] confession extracted by a credible threat of physical violence is considered involuntary and thus violative of due process. ” (citing Fulminante, 499 U.S. at 286-87)).
[directive] The county governing body may establish a maximum dollar amount for which payment may be approved without prior approval of the governing body.  Claims shall be approved or disapproved in the manner prescribed by rules made and promulgated by the bureau unless the governing body adopts an ordinance an of or resolution, as may be appropriate, in the case of a county, or ordinance, in the case a - municipality, including the following provisions:  - - -1 >i  (1)  Designating an approval officer with the title of certifying and approval ofiicer; (2) of Prescribing the duties of the approval officer, including the making certifications required by 5 - 1 6b., ascertaining the existence of proper and sufficient appropriations for the payments to be 4O.A made and determining that there is legal authority for the payments, evidenced by action of a purchasing department or agent or officer in respect to the goods or services ordered and the incumng of the expense therefor; (3)  Prescribing the procedure for approving and certifying to the proper officer claims for payments and drawing checks therefor; (4)  Prescribing the procedure for certifying approved claims to the governing body and regulating its action of approval or disapproval thereon.  Document Page 2 of 2
[brief] Certainly, a driver whose license has been suspended and subject to arrest for driving while suspended is similarly situated to a parole violator with a warrant for his arrest.  In each case, police discovery of the suspect’s preexisting unlawful status during an investigative stop is an intervening circumstance that should be tested under the Brown three-part test to determine whether any of the ultimate charges were too attenuated from the challenged police conduct to justify invocation of the exclusionary rule.
[brief] Defendant was indicted on four counts of intentional murder.  (Da3-5).  Before opening statements even began, potential jurors were instructed that the State alleged defendant killed his family with a semiautomatic rifle and the defense denied legal responsibility due to mental disease or defect and/or insanity.  (3T11-19 to 7, 21-5 to 16, 29-21 to 30-7, 43-3 to 16).  The judge explained that “in this criminal case, you will consider four counts of murder and one count of possession of a weapon for an unlawful purpose. ” (3T40-9 to 15).  Thus, the AP conveyed in her opening remarks factual information of which the jurors who ultimately sat on the jury were already aware.
[directive] of, Return of all, or some portion claimant’s seized c. a funds to either the claimant or the claimant‘s attorney- in of-record the forfeiture litigation if the claimant obtains either: - 1 a final judgment by default; 2. a consent decreeha1 judgment; - a final judgment confirming the claimant’s property right.  3.  - ;p  For seizures where the county prosecutor or the Division of d. Criminal Justice decline to file a forfeiture complaint or discontinue a forfeiture action and the seized funds are not as held evidence or covered under the terms of a settlement agreement between the prosecuting agency and the claimant, all seized funds shall be returned to the person from whom the property was seized.  e.  For seizures where: an attempt to return seized funds 1) as outlined accordance Section 3:ZB.Z.d above has been with in - - of 03 Page: New Jersey Forfeiture Program Administration Standard Operating Procedure State 3 2) unsuccessful and; a claimant has not asserted a right over the seized funds and the owner cannot be found;, and the 3) seized funds were originally deposited in a SATA the funds in shall remain the SATA for a period of three years from the date of the seizure.  At the conclusion of the three year period, the funds shall be disposed of as unclaimed property pursuant law.
[brief] On July 19, 2017, the Borough Clerk emailed [...], Noise Coordinator for the Department of Environmental Protection, a copy of the sections of the Borough Code which codified the Noise Ordinance adopted by Ordinance No. 05-2017.  In that email, the Borough Clerk stated that “[t]he Code refers to ‘Noise’ nuisances throughout and requires approval by the DEP. ”  (Pa39)  On July 27, 2017, [...] responded to the Borough Clerk’s July 19 email, and again notified [...] that “[a]ny noise ordinance submitted to the Department must be identical to the most recent [DEP Model Noise Ordinance.]”  (Pa53)  He further noted that sections of the Borough Code which codified the Noise Ordinance adopted by Ordinance No. 05-2017 was not approved as it “significantly varie[d] from the [DEP Model Noise Ordinance.]”  Ibid.  On October 3, 2017, the Borough introduced Ordinance No. 17-2017, also entitled “An Ordinance Amending Chapter 146, Nuisances, Article II, Noise Nuisances of the Code of the Borough of [...]. ”  On October 17, 2017, the Borough adopted Ordinance No. 17-2017.  In light of the repeal of the Borough’s Chapter 144, Ordinance No. 05-2017 (the “Noise Ordinance”) provides the entire noise code of the Borough of [...].  (Da110-115)  The revised Ordinance No. 17-2017 continued to prohibit the “loud talking” and “other noise” provisions complained of by Plaintiffs; it effectively only eliminated the requirement of proof by means of decibel readings for certain offenses.  (Da112-113)  [...]’s Noise Ordinance No. 17-2017 was neither submitted to the DEP for review, nor approved in writing by the DEP.  (Da67)
[directive] At the same time, however, unnecessarily or prematurely drawing a firearm could limit an officer’s options in controlling a situation, could create greater anxiety on the part of citizens, and may result in an unwarranted or accidental discharge of the firearm.  (a)  Pointing a firearm.  Consistent with training, officers may point a firearm at a person only when circumstances create a reasonable belief that it may be necessary for the officer to use deadly force.  When the officer no longer reasonably believes that deadly force may be necessary, the officer shall, as soon as practicable, secure or holster the firearm.  (b)  Reporting the pointing of a firearm.  Pointing a firearm, though not a use of force, constitutes a seizure that must be reported as a Show of Force on the Attorney General’s Use of Force Reporting Portal, except in the circumstances described in Section 3.4(c).  (c)  Clarification of reporting requirements for tactical teams.  An officer engaged in the operation of a tactical team shall be required to report the pointing of a firearm only when the pointing involves a sustained active engagement with a person in order to gain that person’s compliance.  A member of a tactical team who quickly “sweeps” a room during an operation need not report each person at whom a firearm was momentarily pointed during the sweep.  3.5
[brief] In Giantonnio v. Taccard, 291 N.J. Super. 31 (App. Div. 1996), the court held that expert testimony was necessary to establish the requisite standard of care for a funeral parlor’s procession and their deviation therefrom because:  [T]he safe conduct of a funeral procession constitutes a complex process involving assessment of a myriad of factors such as traffic conditions, particular road hazards, the length of the procession, time constraints, the distances involved, traffic volume and the availability of police escort services.  We believe that this calculus is beyond the ken of the average juror.  Id. at 44.  See Dare v. Freefall Adventures, Inc., 349 N.J. Super. 205 (App. Div. 2002) (expert testimony was necessary to establish the standard of care of co-participants at a skydiving facility).
[directive] Persons convicted of certain violations of the Comprehensive Drug Reform Act, N.J.S.A. 2C:35-1 et seq., are subject to a mandatory minimum term of imprisonment and parole ineligibility.  Under N.J.S.A. 2C:35-12, a prosecutor may, through a negotiated plea agreement or post-conviction agreement with the defendant, waive or reduce the mandatory minimum sentence.  In that event, the court may not impose a lesser sentence than that agreed to by the prosecutor.  This statutory provision ensures that the State, no less than the defendant, receives the full benefit of its bargain.  The New Jersey Supreme Court has recognized on several occasions that the primary purpose of N.J.S.A. 2C:35-12 is to provide an incentive for defendants, especially lower and middle-level drug offenders, to cooperate with law enforcement agencies in the war against drugs.  Another distinct goal of N.J.S.A. 2C:35-12 is to encourage guilty defendants to plead guilty rather than to demand jury trials and thus overburden and backlog the system.  To satisfy constitutional requirements and to ensure an appropriate separation of powers between the Executive and Judicial branches, the New Jersey Supreme Court in State v. Vasquez, 129 N.J. 189 (1992), held that the exercise of prosecutorial discretion under N.J.S.A. 2C:35-12 must be subject to judicial scrutiny under an arbitrary and capricious standard of review.  To make that review possible, the Court held that prosecutors must adhere to written guidelines governing plea offers and must state on the record their reasons for waiving or not waiving the mandatory minimum term of parole ineligibility in any given case.  In response to State v. Vasquez, the Attorney General in 1992 promulgated Plea Agreement Guidelines, which were subsequently amended by the Attorney General’s 1997 Supplemental Directive, and then again by the Uniformity Directive issued on January 15, 1998.
[brief] Order of the Honorable [...], Granting Motion for Summary Judgment, dated June 28, 2024 ..........................................................Pa1  ###  TABLE OF AUTHORITIES | Cases: | | --- | | **Brill v. Guardian Life,**<br>142 N.J. 520 (1995).................................................................1, 21 | | **Jimenez v. Maisch,**<br>329 N.J. Super. 398 (App. Div. 2000)......................................................16 | | **Kane v. Hartz Mountain Indus.,**<br>278 N.J. Super. 129 (App. Div. 1994).............................................16 | | **Luchejko v. City of Hoboken,**<br>207 N.J. 191 (2011)................................................................passim | | **Mirza v.  Filmore,**<br>92 N.J. 390 (1983)..................................................................................11, 13 | | **Nunez v. Gallo,**<br>2018 WL 6836109 (App. Div. 2015).......................................................20, 21 | | **Stewart v. 104 Wallace St., Inc.,**<br>87 N.J. 146 (1981)............................................................11, 13, 18 | ###  Statutes and Other Authorities: - **New Jersey Model Jury Charge 5.20B(B)(1)(b)**.........................................................20 - **New Jersey Model Jury Charge 5.20B(B)(2)(a)**.........................................................17, 18  PRELIMINARY STATEMENT
[brief] (Pa389 to Pa401).  [...] testified that in order to determine whether a d(5) density variance should be granted, a Board needs to consider the factors showing whether the site is capable of supporting the additional density.  (Pa389).  It must be noted that the proposed additional density in the Application is the addition of 47 units, as 100 new units are proposed, but the existing site is currently 53 units short of the maximum permitted amount.  [...] testified that water and sewer infrastructure on site are sufficient to support the addition of 47 more units.  (Pa389).  [...] testified that the enhancements to the current garbage refuse areas coupled with the addition of seven new garbage refuse areas will be capable of handling the increase in garbage from the additional 47 units beyond the permitted amount.  (Pa390).  [...] testified that the recreational area on site provides enough square footage to account for the additional units and that Plaintiff had committed to working with the Board when seeking final approval to finalize the design of recreational areas to suit the residents.  (Pa389 to Pa390).  Furthermore, [...] testified that the site is capable of handling the additional parking needs and the traffic generated by the addition of the 47 units.  (Pa391 to Pa392).  Specifically, Plaintiff’s traffic study considered the addition of the 100 proposed new units and determined that the site is capable of handling the increased traffic, which comes out to be about one new car every three minutes.  (Pa392 to Pa393).  [...] also pointed out that one of the other positive elements of the Application is that it will be providing the required 15% of affordable housing to the site, whereas currently there is no affordable housing on site, which helps move the site closer to compliance than it is today.
[brief] In this regard, plaintiff relies exclusively upon the New Jersey Supreme Court’s decision in *Haviland v. Lourdes Medical Center of Burlington County, Inc.*, 250 N.J. 368 (2022).  However, the circumstances presented here are readily distinguishable.  In *Haviland*, the plaintiff alleged that he was injured as a result of the negligence of a radiology technician.  Specifically, the plaintiff alleged that the radiology technician directed him to hold weights during a radiological examination, contrary to the physician’s instructions, resulting in injury to the plaintiff.  *Id.* at 373.  The plaintiff brought suit against the medical center, as well as the technician as a John Doe.  *Id.* at 372.  As a health care facility, the defendant medical center qualified as a “licensed person” for purposes of the Affidavit of Merit Statute.  *Id.*  The defendant medical center moved for summary judgment on the basis of plaintiffs’ failure to serve an affidavit of merit, which was granted.  *Id.*  The Appellate Division reversed, in a decision that was upheld by the Supreme Court.  *Id.*