ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] See also State v. Tropea, 78 N.J. 309, 314 (1978), where the New Jersey Supreme Court said:  “Those cases (Burks in the federal sphere and Greene as to state court proceedings) make it clear that although a remand for a new trial is proper where reversal of a criminal conviction is predicated on trial error, the double jeopardy clause forbids a second trial where the conviction has been overturned due to a failure of proof at trial. ” (emphasis added).  Notwithstanding plaintiff’s groundless effort to describe the reversal of his conviction as based on trial error (Pb at 16), the New Jersey Supreme Court in Mosley reversed plaintiff’s conviction because of “evidentiary insufficiency” and did not remand the matter.
[brief] (Pa21 and Pa22)  On January 11, 2023 plaintiff [...] filed a Motion for Reconsideration of the trial court’s Orders dated January 6, 2023 granting summary judgment to the defendants.  (Pa388)  Opposition was filed by defendant [...] on January 25, 2023 (Pa496).  Defendant [...] filed a Letter Brief only in Opposition on January 26, 2023.  Oral argument was heard on February 10, 2023 before the Hon. [...], J.S.C. and after oral argument, [...] entered \(^1\) “1T” – Transcript of January 6, 2023 oral argument of defendants, [...]s’ and [...]’s Motions for Summary Judgment before the Hon. [...].  an Order on February 10, 2023 denying the plaintiff’s Motion for Reconsideration.  (Pa23)  On March 20, 2023 plaintiff [...] filed a Notice of Appeal with the Superior Court of New Jersey, Appellate Division (Pa1), Civil Case Information Statement (Pa12) and Court Transcript Request for the January 6, 2023 oral argument of the Motions for Summary Judgment filed by defendants.
[brief] 312 N.J. Super. at 512-13.  The proponent of habit evidence bears the burden to prove the foundation for its admission.  Sharpe v. Bestop, Inc., 158 N.J. 329, 331 (1999) (per curiam) (“before a court may admit evidence of habit, the offering party must establish the degree of specificity and frequency of uniform response that ensures more than a mere tendency to act in a given manner, but rather, conduct that is semiautomatic in nature”); Radziwil, 235 N.J. Super. at 565-66; State v. Bogus, 223 N.J. Super. 409, 428 (App. Div.), certif. denied, 111 N.J. 567 (1988).
[brief] Pursuant to Rule 2:6-2(b), please accept this letter brief in lieu of a more formal reply brief on behalf of Defendants-Appellants [...], [...], and [...] (collectively “Appellants”) in the above-captioned matter.  TABLE OF CONTENTS | TABLE OF JUDGMENTS, ORDERS, AND RULINGS BEING APPEALED | Page | |--------------------------------------------------------|------| | STATEMENT OF FACTS AND PROCEDURAL HISTORY | 2 | | LEGAL ARGUMENT | 3 |  II.  THE CHANCERY COURT ERRED IN COMPELLING ARBITRATION BECAUSE THE CONTRACT UPON WHICH PLAINTIFF-RESPONDENT’S CLAIM IS BASED DOES NOT CONTAIN AN ARBITRATION PROVISION (1T38:16-40:19; 1T42:15-46:16; 1T48:7-51:8)………………………………………3  III.  THE CHANCERY COURT ERRED IN COMPELLING ARBITRATION BECAUSE THE CONTRACTS UPON WHICH THE CHANCERY COURT RELIED WERE SUPPLANTED, INVALID, AND OTHERWISE IN APPLICABLE TO THE DISPUTE AT ISSUE (1T38:16-40:19; 1T42:15-46:16; 1T48:7-51:8). ……………………………………………………………..6  IV.  THE TRIAL COURT ERRED IN COMPELLING ARBITRATION  BECAUSE PLAINTIFF-RESPONDENT WAIVED THE RIGHT, IF ANY, TO COMPEL ARBITRATION (1T40:20-42:14). ………………………………………………………………………………..9  CONCLUSION……………………………………………………………………………………………..13
[brief] Rule 34(b)(2)(C).  An objection to part of a request must specify the part and permit inspection or production of the rest.  Id.  The responding party is responsible for all items in “the responding party’s possession, custody, or control. ”  Rule 34(a)(1).  Actual possession, custody or control is not required.  Rather, “[a] party may be ordered to produce a document in the possession of a non-party entity if that party has a legal right to obtain the document or has control over the entity who is in possession of the document. ”  Soto v. City of Concord, 162 F.R.D. 603, 620 (N.D. Cal. 1995).  DISCUSSION
[brief] So let me play it out.  I have access - - I have looked into transactions for the last let’s say year.  And I have a good understanding, I think of what is going on.  So now is your time before it gets to be a different situation that you will explain.  What do you think?  What’s really happened with the PCard and purchases?  **Appellant:**  [L]ike I said if . . . I blew something, tell me what I owe you.  I didn’t realize I blew something.  I know that I have multiple cards on my account.  I didn’t realize until you told me about the prime video.  [ * * * ]  [...]:  [T]hen I’ll add on, you know, I don’t think [...] has a need for a hockey stick.  So you know, again, this is your opportunity to basically come clean.  Appellant:  And again, I’m . . . coming clean as possible and saying you’re right, I coach hockey.  If [...] was charged for a hockey stick, then that’s a shame on me and I’ll more than certainly reimburse you.  I don’t understand how this thing transitioned from . . . my American Express to my [...] card, but you know, I’ll take full responsibility.  I apologize for that.  I had never intention of taking anything from [...], and I never had any intention of misconstruing funds.  (Pa81-82, Da404-408).  Appellant further claimed that he also purchased gift cards to incentivize employees but did not provide an accounting as to how many gifts cards were bought and to whom they were distributed.
[brief] See *Kennard v. Comstock Res., Inc.*, 363 F.3d 1039, 1046 (10th Cir. 2004) (“personal, private royalty records and statements”); *U.S. ex rel. Hagerty v. Cyberonics, Inc.*, 95 F. Supp. 3d 240, 260 (D. Mass. 2015) (relator’s knowledge formed the basis for a publicly available report), aff’d on other grounds, 844 F.3d 26 (1st Cir. 2016).  So are cases where the relator was not an original source.  *U.S. ex rel. Reagan v. E. Tex. Med. Ctr. Reg’l Healthcare Sys.*, 384 F.3d 168, 179–80 (5th Cir. 2004).  10  Relator cites no authority holding that the use of a patent confers original source status when it is used to analyze public information.  *Kuriyan* does not support this proposition; to the contrary, the relator in that case analyzed “raw non-public data” to infer fraud.  *U.S. ex rel. Kuriyan v. HCSC Ins. Servs. Co.*, relator in that case collected non-public facts essential to uncovering the alleged fraud.  *U.S. ex rel. Springfield Terminal Ry. Co. v. Quinn*, 14 F.3d 645, 657 (D.C. Cir. 1994).
[brief] ’”  New Jersey State League of Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 222 (1999) (alteration in original) (citation omitted); accord.  In re Stormwater Mgmt. Rules, 384 N.J. Super. 451, 465 (App. Div. 2006).  In particular, the “[...] is given great deference when it applies its considerable expertise and experience to the difficult balance between development and conservation. ”  *Crema v. N.J.  Dep't of Env'tl. Prot.*, 192 N.J. Super. 505, 510 (App. Div.), certif. denied, 96 N.J. 306–07 (1984).  The party challenging the [...]'s decision to issue a permit “has the burden of demonstrating, not that the agencies' action was merely erroneous, but that it was arbitrary. ”  Ibid. (quotations omitted).  The term “arbitrary and capricious” means having no rational basis.  *In re Proposed Xanadu Redevelopment Project*, 402 N.J. Super. 607, 642 (App. Div.), certif. denied, 197 N.J. 260 (2008).  In connection with administrative bodies, the term means “willful and unreasoning action, without consideration and in disregard of circumstances. ”  Ibid.  The burden is on the appellant to prove the agency's error by a “clear showing. ”  *Twp. of Fairfield v. State, Dep't of Transp.*, 440 N.J. Super. 310, 318 (App. Div. 2015) (quoting *Circus Liquors, Inc. v. Governing Body of Middletown Twp.*, 199 N.J. 1, 9 (2009)).  II.
[brief] (Da270-274, August 18, 2021, communication from Plaintiff; Appellate Docket Transaction ID: [...]; Da34, Filed August 25, 2021, Order from Trial Court Transaction ID: [...]).  On October 28, 2021, the appellate briefing schedule was issued.  (Da270, Scheduling order issued October 28, 2021).  Plaintiff’s initial brief was due on December 13, 2021.  (Da270, Scheduling order issued October 28, 2021).  Defendants’ opposition briefs were due on January 12, 2022.  Plaintiff’s reply was due on January 24, 2022.  (Da270, Scheduling order issued October 28, 2021).  Plaintiff did not file his Appellate Brief on December 13, 2021.
[brief] Neither the Zoning Permit (Pa 122) nor the Zoning Board Minutes and Resolution (Pa 69-75; Pa 76-78) were ever produced to [...] prior to the litigation, in spite of multiple OPRA Requests by him.  (T1 at 52:21-53:10).  Although the Defendants took the position on the return date of the Order to Show Cause that no permits were required for the work done to the restaurant, months later applications were in fact filed for the gas line work, the signs and the electrical work.  (Pa 123-135).  When inspections were performed by the Construction Official months later, the electrical work was deemed improper and the signs were not all permitted.  This process of applying for permits, inspections, denials, repairs, and final inspections and approvals went on for months, all while [...] was in operation.  (Pa 124-136; T1 at 169:3-9; 171:1-6; 171:24-183:19; T2 at 61:8-62:21; 144:9-146:6;146:21-149:1).
[brief] I BECAUSE THE JURY WAS NOT INSTRUCTED ON THE OBJECTIVE “REASONABLE VICTIM” STANDARD, WHICH IS CONSTITUTIONALLY REQUIRED IN TERRORISTIC THREATS PROSECUTIONS UNDER STATE V. FAIR,4 THE DEFENDANT’S TERRORISTIC THREATS CONVICTIONS MUST BE REVERSED.  (Not Raised Below)  The jury at [...]’s trial was never instructed on the objective element of a terroristic threats prosecution: it was never told to assess whether a reasonable person similarly situated to the victim would have interpreted the defendant’s words as threatening violence and caused them to fear for their safety.  This instruction is constitutionally required in a prosecution for terroristic threats under Fair, 256 N.J. at 238.  Instead, the jury was only instructed that it must find that “[t]he words or actions of the defendant [were] of such a nature as to convey menace or fear of a crime of violence to the ordinary person” and that “[t]he State need not prove that the victim actually was terrorized. ”  (4T 55-24 to 56-10)  Because the jury did not receive the constitutionally required Fair instruction on how to consider an essential element of the crime, [...]’s terroristic threats convictions under counts 1 and 2 of the indictment must be reversed.
[brief] ASOP 8, a non-binding industry guide, has nothing to do with the Department’s obligations under the Act and due process. to “protect[] the public. ”); Pa84 (similar); see also Db36 (“The rules only set the minimum loss ratio tests that carriers must meet; they do not address the outer limit of whether or not a rate is excessive” (emphasis added)).  But the Department now about-faces to proffer definitions that are actuarial.  See Db41 (relying on actuarial standards of ASOP 8 to define “excessive”).  The ruling under review cannot simultaneously be non-actuarial and justifiable as supported by actuarial standards.
[brief] Mazur v. Crane’s Mill Nursing Home, 441 N.J. Super. 168, 183, 117 A.3d 181, 191 (App. Div. 2015)..................................................................................................................21 Murphy v. Implicito, 392 N.J. Super. 245 (App. Div. 2007) ...........................................39  Notte v. Merchants Mut. Ins. Co., 185 N.J 490 (2006) ......................................................28 Popwell v. Law Offices of Broome and Horn, 363 N.J.Super. 404, 410, 833 A.2d 102 (Law Div.2002) ..................................................................................................................23, 24  Rotwein v. Gen. Accident Group, 103 N.J. Super. 406 (Law Div. 1968) .............................38  Sommers v. McKinney, 287 N.J.Super. 1, 8-12, 670 A.2d 99 (App.Div.1996) .................................................................23, 24, 26
[brief] Brush v. Commissioner, 300 U.S. 352, 372-73 (1937) (emphasis added).  New Jersey courts also began to question the notion of municipal water service being a “proprietary” function.  In a case where the plaintiff sought to compel a municipality to extend the municipal water system to accommodate a proposed future development, the Appellate Division observed that municipal water supply is a *governmental function* involving exercise of governmental *police power*:
[brief] As Plaintiff knows, [...] submitted the 2016 New Jersey Law Journal article in opposition to prior fee applications and expressly incorporated all his arguments as to the impropriety of [...]’s rates in his brief to the trial court relating to the Global Fee Application.  (Da281, ¶4).  Nonetheless, the burden to establish prevailing rates is squarely on \(^3\) Plaintiffs attempt to compare his counsels’ rates to the rate of [...]’s attorney, [...], is improper.
[brief] 37  Eden v. Conrail, 175 N.J. Super. 263 (App. Div. 1980)  32  Hansson v. Catalytic Construction Co., 43 N.J. Super. 23 (App. Div. 1956)  30 Harris v. Peridot Chem. (NJ), Inc., 313 N.J. Super. 257 (App. Div. 1998)  20, 27, 30 Hassan v. Williams, 467 N.J. Super. 190 (App. Div. 2021)  24, 27 Jerolamon v. Town of Belleville, 90 N.J.L. 206 (E. & A. 1917)  20 Lanvin v. Fauci, 170 N.J. Super. 403 (App. Div. 1979)  20 Lombardi v. Yulinsky, 98 N.J.L. 332 (Sup. Ct. 1923)  30 Millman v. United States Mortgage & Title Guar. Co. of New Jersey, 121 N.J.L. 28 (Sup.Ct. 1938)  20, 21, 30 Parker v. Poole, 440 N.J. Super. 7 (App. Div. 2015)  19 Parmenter v. Jarvis Drug Store, Inc., 48 N.J. Super. 507 (App. Div. 1957)  24, 27 Perry v. Levy, 87 N.J.L. 670 (E. & A. 1915)  20, 28 Rosenblit v. Zimmerman, 166 N.J. 391 (2001)  19 Skibinski v. Smith, 206 N.J. Super. 349, 353 (App. Div. 1985)  33 State v. Labrutto, 114 N.J. 187, 198 (1989)  27 State v. Silva, 131 N.J. 438 (1993)  31  Trenton Passenger Railway Co. v. Cooper, 60 N.J.L. 219, Court of Errors and Appeals, June 28, 1897  21
[brief] (Pa545; Pa99 at 63:4-9).  During their meeting, [...] denied receiving charge pay and explained that none of the staffing coordinators receive hourly charge pay.  (Pa545).  [...] admitted she was working on July 27, 2020—the exact date that the Kronos Time Card Audit Trail reveals her login information was used to enter charge pay on behalf of [...].  (Pa545).  During her interview, [...] never claimed that [...] directly approved her entry or receipt of charge pay.  (Pa545).  And [...] confirmed at her deposition that she had no firsthand knowledge of [...] approving charge pay for any staffing coordinator.  (Pa297 at 80:10-14).  [...] also met with [...].
[brief] First, that case deals with a Flood Hazard Area Verification for purposes of future development and not a Waterfront Development Permit wherein, the construction of [...]’s dock was previously completed after relying on a decision from NJDEP finding that all applicable rules were met.  Additionally, in Musconetcong Watershed Ass'n, unlike here, after filing a timely appeal from the NJDEP’s denial of the adjudicatory hearing request, the appellant simultaneously moved for leave to appeal the underlying NJDEP determination.  Musconetcong Watershed Ass'n v. N.J. Dep't of Env't Prot., 476 N.J. Super. 465 (App. Div. 2023).
[brief] H1625a [...] response to RCR-ENG-12 (2018) ......................  H1626a  [...] response to RCR-ENG-13 (2018)  ......................  H1630a -xxxv- Attachment A: [...] heater manufacturer providing data .  . . . . .  H1632a  [...] response to RCR-ENG-14 (2018)
[brief] As to [...]’s argument that, in light of [...]’s LIS-R score, seventeen, the Board had failed to document by a preponderance of the evidence there was a substantial likelihood [...] would commit a crime if released, the Board observed that score was just one the factors in their decision, in addition to the psychological report, and that the totality of factors required a denial, particularly [...]’s lack of problem resolution, noting that “[...]’s repeated expressions of deep regret for his actions . . . does not equate to a change in his behavior. ”  (Pa4).
[brief] To the contrary, in 2017, [...] was required to comply with the SAV Rule because it sought to extend its pre-existing dock.  Similarly, in 2019, [...] was required to comply with the SAV Rule because it sought a 5 “Db” refers to the [...]’s appellate brief. permit modification.  As such, [...] cannot claim that the “need” element required to satisfy the Docks Rule was met by satisfying the SAV Rule. \(^6\)  Moreover, while [...]’s regulatory policy encourages minimizing impact to submerged aquatic vegetation habitat, the regulations do not state the extending a previously approved and existing dock satisfy the required “need” element.  [...]’s March 27, 2017 policy compliance statement within its WFD permit application attempts to satisfy this requirement by summarily stating that “[i]n this case, this is a private lot and the proposed construction will allow the property owner mooring and access for the use of pleasure crafts. ”  [Aa36.]  This analysis is continued in [...]’s October 23, 2018 policy compliance statement within its WFD permit modification application by stating “[i]n this case, this is a private lot and the two proposed boat lifts will allow the property owner mooring and access for the use of pleasure crafts. ”  [Aa106.]  The applications do not contain any further demonstration of need besides the summary conclusion that the approvals will allow [...] to use its vessels.
[brief] *Id.*  The present case presents that “constellation of facts” that require dismissal of the Amended Complaint, which include, but are not limited to: 1) Signing the 2016 Contract and the Petition on the same date; 2) Not including the PI Claim in Petition; 3) Not declaring in the Petition that she had sold property to [...]; 4) Selling to [...] the proceeds from the PI and UIM Claims after converting to a Chapter 7 (the 2018 & 2019 Contracts); 5) For more than 2 years after signing the 2018 & 2019 Contracts, Plaintiff filed multiple Amended Schedules A, B & C between March 22, 2021, and May 25, 2021, relating to the UIM Claim, but did not list that she had a third party claim against [...]; 6) When Plaintiff opposed the [...] Fee Application in the Bankruptcy Court, Plaintiff requested that the Bankruptcy Court not pay [...] the amount due, i.e., $12,067.91, but did say that [...] was entitled to $$7,835.00, the amount “debtor actually received; 7) Plaintiff’s Complaint misrepresented the facts, i.e., Plaintiff claimed that Plaintiff received $8,00.00 from the 2018 & 2019 Contracts and paid $7,043.92 for those Contracts and then when the UIM Claim settled, [...] was looking for an additional $12,067.91.
[brief] For all of the foregoing reasons of fact and law, the Court should reject Plaintiffs’ and [...]’s cross-appeal in its entirety.  It should affirm the Chancery Court’s vacatur of the arbitrator’s fee-award and its rejection of Plaintiffs’ request for mandatory book value for [...]’s shares.  The Court should grant [...]’s appeal and reverse the rulings of the trial court, as originally argued in Appellant’s Brief.
[brief] POINT I [...]’S STATEMENT MUST BE SUPPRESSED BECAUSE DETECTIVES DID NOT CLARIFY WHETHER HE WAS INVOKING HIS RIGHT TO COUNSEL WHEN HE ASKED A SERIES OF QUESTIONS ABOUT WHAT COUNSEL WAS AVAILABLE TO HIM, WHICH THEY FAILED TO ANSWER.  THE STATE CANNOT SHOW THAT THE SUBSEQUENT WAIVER WAS KNOWING AND VOLUNTARY.  (Da 4-27)  ...........................................................................................................12  POINT II THE ADMISSION OF VIDEO SHOWING [...] REPEATEDLY ASKING ABOUT THE SCOPE OF HIS MIRANDA RIGHTS AND INVOKING HIS RIGHT TO SILENCE DURING HIS INTERROGATION VIOLATED HIS RIGHT TO A FAIR TRIAL.  (16T:84-25 to 111-14)  ........................................22  TABLE OF CONTENTS (CONT'D.)  POINT III  THE STATE’S ELICITATION OF EXTENSIVE INADMISSIBLE LAY OPINION BY SIX WITNESSES -- INCLUDING AN OFFICER WHO HAD NEVER SEEN [...] PRIOR TO TRIAL AND FOUR RELATIVES WHO HAD NOT SEEN HIM IN A DECADE -- PURPORTING TO IDENTIFY [...] IN THE CRITICAL SURVEILLANCE
[brief] In addition to arguing that [...] unlawfully asked for consent to search, prolonged the detention, and elicited involuntary and un-Mirandized statements, the defense also argued that [...] stopped [...] without reasonable suspicion of a motor vehicle violation.  (2T 10-24 to 12-6)  If the court finds on remand that the officer is not credible due to his failure to adhere to the requirements of the BWC statute, attendance at the Street Cop Conference, and testimony, this would call into question [...]’s claim that he had observed a motor vehicle violation.
[brief] ” (1T13-16 to 24, 29-21 to 30-10, 51-16 to 18)  And even after the car search uncovered contraband, police had nothing linking those items to [...]’s home.  When asked why he ultimately sought consent, [...] said it was “[b]ecause we believed there to be other items of evidentiary value located back at his residence, be it money, drugs, more weapons. ” (1T51-2 to 9)  The best [...] could muster in support of that speculation was that [...] departed his home earlier that day, before making three separate stops in the car.  (Ibid.)  But there was no indication that police observed [...] take items from his house and place them in his car.  Nor was there any suggestion that criminal associates were at the house; when asked, [...] told officers that only his ill wife and his grandchildren were at the home.  [...]’s “hunch” alone did not provide objective support for a reasonable and articulable suspicion that [...]’s home contained contraband.  See State v. Nyema, 249 N.J. 509, 527 (2022) (“Although reasonable suspicion is a less demanding standard than probable cause, neither inarticulate hunches nor an arresting officer’s subjective good faith can justify infringement of a citizen’s constitutionally guaranteed rights. ”) (quotations omitted) (cleaned up)); id.  at 535 (explaining that “a hunch” “is not the standard” for “objectively reasonable and articulable suspicion”).  For that reason, [...]’s consent was invalid and the fruits of the home search must be suppressed.
[directive] The steps each person takes depend on their individual needs and access to resources.  J.  Intersex: A person whose biological sex characteristics may not fit medical definitions of male and female.  These characteristics may include, but are not necessarily limited to, internal reproductive organs, external genitalia, and sex chromosomes.  K.  LGBTQ+: An acronym that represents lesbian, gay, bisexual, transgender, and questioning individuals.  The Q may also stand for queer.  As the plus sign shows, this list is not meant to be exhaustive, and as used in this Directive, the umbrella term also includes non-binary, gender non-conforming, and intersex individuals.
[brief] There is nothing “automatic. ”  Third, the trial court incorrectly relied on the fact that the judgment does not specifically set forth the location of the off-site units.  This shifts the burden: it is [...]’s obligation as part of the judgment to provide a realistic opportunity for satisfaction of its share of affordable housing, including identifying a location for the seven off-site units.  The undisputed record before the court was that the prior administration selected the location for the off-site units, prevailed upon the redeveloper to purchase the property, and agreed with redeveloper to construct the off-site units there.  Regardless of whether the judgment specifically identified the property, it is the only property [...] ever selected to satisfy its obligation for the off-site component, and in the five years since the judgment [...] has never approached the [...], the [...], or [...] with any alternative.