ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] The jury was instructed that it was [...]’s burden to establish any allocation of fault as to these [...].  (20T133).  The jury was specifically instructed that [...] and [...] were not parties to the case, but had indeed been “procedurally dismissed. ”  (20T137)  The jury concluded that [...] proved that Dr. [...] deviated from the standard of care, by a vote of 6-0, and that Dr. [...]’s deviation was a proximate cause of the injuries sustained by plaintiffs.  (21T6)  [...] did not establish that [...] deviated from the standard of care.
[brief] If an issue has been determined on the merits in a prior appeal, it cannot be re-litigated in a later appeal of the same case, even if the matter is of constitutional dimension.  *McQuaid*, 147 N.J. at 483-84; *State v. White*, 260 N.J. Super. 531, 538 (App. Div. 1992), certif. denied, 133 N.J. 436 (1993).  In this case, appellate counsel presented the following argument in Point V of his brief on direct appeal, “THE TRIAL COURT COMMITTED ERROR IN RULING THAT PROBABLE CAUSE EXISTED FOR THE SNEAK AND PEEK WARRANT. ” (Da45).  Thereafter, defendant filed a pro se brief in which he argued:  THE COURT’S FAILURE TO ARTICULATE ANY FINDINGS OR CONCLUSIONS OF LAW ON DEFENDANT’S SUPPRESSION MOTION, AND ADMISSION OF EVIDENCE OBTAINED AS A RESULT OF THE SNEAK AND PEEK WARRANT WHICH WAS NOT SUPPORTED BY PROBABLE CAUSE NOR STATUTORILY AUTHORIZED, WAS A VIOLATION OF THE FOURTH AMENDMENT, AND A DENIAL OF DEFENDANT’S DUE PROCESS RIGHT TO A FAIR TRIAL THEREFORE THE CONVICTION SHOULD BE REVERSED.  [Da45]
[brief] Exhibit C-6 to [...]’s Certification Notice of Motion to Suppress and Dismiss by [...] 10/13/2020 (Attached at Pa059)  Hawkin’s Letter to [...] Regarding Submission of Copies to Prosecutor and Hernan 4/15/2021  Certification of [...] 4/15/2021  Order Brought by [...] Notice of Claim to [...] 2/27/2020 (Attached at Pa053)
[brief] ”  [...] was asked if she had the opportunity to really look at defendant when he was carrying the bag and if she could identify him at the trial.  She unequivocally answered yes to both questions.  Additionally, [...]'s identification was subject to cross-examination.  Although [...]'s in-court identification occurred slightly less than ten months after the robbery, this is not a considerable lapse in time, given that she observed defendant three times, her recollection ultimately led police to defendant, and she was cross-examined at trial.  Like [...], [...] could not identify defendant from the mug books because his photograph was not in those books the day she reviewed them.  The court charged the jury on second-degree robbery and the lesser-included offense of theft of movable property.
[brief] [...] continues, "[...] did not seek outright approval, rather it sought to have the Court or the Implementation Monitor conduct a hearing regarding the suitability of the site for Mount Laurel housing..."  Id.  (emphasis added)  Initially, the undersigned was unsure if there was a different Motion filed we were unaware of, as the Motion to Enforce Litigant's Rights filed by [...] plainly states in its Notice of Motion, that it sought relief from the Court in the form of:  Ordering that [...] grant site plan approval for the construction of a seven unit, fully affordable housing building on Block 610, Lot 1, pursuant to the Settlement Agreement, without the need for further variance or amendment to the Redevelopment Plan;  The Proposed Order in the original Motion to Enforce Litigant's rights, likewise states as the relief sought as:  [...] shall grant site plan approval for the construction of a seven unit, fully affordable housing building on Block 610, Lot 1, pursuant to the Settlement Agreement, without the need for further variance or amendment to the Redevelopment Plan;  It is hard to fathom how anyone reading the original Notice of Motion or Proposed Order could read it to mean they were seeking a "hearing on site suitability."  The relief now sought, that the Court to "hold a hearing to assess site suitability and thereafter grant site plan approval for the construction of a seven-unit fully affordable housing building on Block 610 Lot 1" is entirely different than that which the original Motion sought, and it should therefore be denied.
[brief] [...] of the [...] testified as an expert in fingerprint analysis.  Prior to trial, an N.J.R.E. 104 hearing was conducted allowing defense counsel to inquire about Sergeant DeAngelis's methodology and analysis as well as to challenge the State's non-production of certain documents during discovery.  At the hearing, Sergeant DeAngelis testified at length about the AFIS fingerprint comparison results as well as the police fingerprint investigation and evidence preservation methods.  The court held that any discovery violations alleged by defendants were cured by the hearing and that it would be for the jury to assess the believability of any opinion testimony relating to the fingerprints.  At trial, no one from the AFIS Unit testified.  C.
[brief] The instructions on what would need to be found in order to convict defendant of aggravated manslaughter failed to clearly and consistently convey the law to the jury, and, hence, with self-defense as the main defense in the case, that error plainly warrants a reversal of defendant’s convictions and a remand for a retrial.  Indeed, the error here is a close “cousin” -- so to speak -- of the very same error that resulted in the reversal of defendant’s convictions the first time.  In that decision (Da 24 to 28), this Court reversed because the jury was not told that self-defense is a defense to manslaughter offenses.  See *State v. Gentry*, 439 N.J. Super. 57, 67 (App. Div. 2015); *State v. Supreme Life*, 473 N.J. Super. 165, 177 (App. Div. 2022); and *State v. Rodriguez*, 195 N.J. 165, 169 (2008).  Here, the jurors were not told that same fact either until they had been told over and over the exact opposite: that they must convict defendant of aggravated manslaughter as long as the State proved that defendant killed recklessly under circumstances manifesting extreme indifference to life.  The later contradictory instruction, as noted, did not purport to correct all the prior errors.  Rather it just contradicted them.
[brief] On December 28, 2021, [...]’s colleague, [...], sent notice via e-mail to the Borough’s designated newspapers of the new date for the Reorganization Meeting.  (Pa164, Pa170).  The notice provided as follows:  FOR YOUR RECORD ONLY.  The [...] has postponed their Reorganization Meeting to 7:15pm Tuesday, January 11, 2022 via Zoom.  (It was originally scheduled for January 4, 2022).  We will be sending you an agenda as we get closer to the meeting date.  [(Pa170). ]  Additionally, notice of the January 11, 2022, Reorganization Meeting was also posted on the Borough’s website and on the bulletin board in Borough Hall more than 48 hours in advance of the meeting.  (Pa164).  On January 11, 2022, [...] held its annual Reorganization Meeting in accordance with the notice.  (Pa164).
[brief] THE CHANCERY COURT DID NOT ABUSE ITS DISCRETION IN REFUSING TO APPLY THE NEW JERSEY ENTIRE CONTROVERSY DOCTRINE TO BAR THIS CASE.  The third preclusive defense Appellants continue to advance to bar Respondent’s ability to access their landlocked lot sounds under New Jersey’s entire controversy doctrine.  As noted in the Standard of Review, supra, the entire controversy doctrine is an equitable doctrine left to the sound discretion of the Court based on the factual circumstances of individual cases.  See Bank Leumi USA, 243 N. J. at 227.  The Supreme Court held in Bank Leumi USA that the trial courts should not preclude a claim under the doctrine if such a remedy would be unfair in the totality of the circumstances or would not promote the doctrine’s objectives of conclusive determinations, party fairness and judicial economy and efficiency.  See id.; see also Carrington Mortgage Servs, LLC v. Moore, 464 N.J. Super. 59, 68 (App. Div. 2020).  Accordingly, the Chancery judge properly rejected the doctrine here.  The polestar of the entire controversy doctrine is judicial fairness, requiring the court to “apply the doctrine in accordance with equitable principles, with careful attention to the facts of a given case”.  Moore, 464 N.J. Super. at 68; see also Wadeer v. New Jersey Manufacturers Ins. Co., 220 N.J. 591, 605 (App. Div. 2015).  The Supreme Court has also cautioned that application of the doctrine should be a “remedy of last resort. ”  See Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman and Stahl, P.C., 237 N.J. 91, 111 (2019).  It would be inequitable to apply the entire controversy doctrine to bar Respondent’s claim.
[brief] [...] responded that he had already requested to speak with an attorney.  Ibid.  Then, [...] called defendant’s father as previously requested.  (1T:96-7 to 99-7).  The first thing defendant asked his father was whether all the guns were locked up.  Ibid.  [...] immediately jumped in to prevent defendant from making further incriminating statements.  Ibid.  [...] proceeded to give defendant’s father logistical information and the call was ended.  Ibid.
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[brief] First, the Commission does not indicate which portions of their statement apply to which counts (“either made in a private/personal capacity, appropriately disclaimed, and/or clearly not in one’s official capacity”) - the Complainant must guess.  More troubling, none of these statements are part of the standard for review for public posts by Board members.  As demonstrated below, Board members private posts can run afoul of N.J.S.A. 18A:12-24.1(e), as can “appropriately” disclaimed ones if the content of the post negates the disclaimer, or even times when a Board member is not speaking directly in one’s official capacity.  A)  The Commission arbitrarily ignored evidence that [...] and [...] were taking private action that could compromise the board in Count 9 (Raised at: Pa14)  Count 9 deals with Board member [...] and Board President [...] appearing before the [...] to attempt to persuade the Township to “stay neutral” in the matter of the Referendum (Complaint, Pa27).  Clearly, both Board members were taking private action in attempting to persuade the Township Committee to not act against the referendum.  How such an action could compromise the board is obvious - the Township became a vocal opponent of the referendum, challenged the referendum result in court, and ultimately sued the district in Superior Court, partially due to Mr. [...] and [...]’s conduct.  At a minimum, the Commission should have held a hearing and considered further evidence on a charge as serious as Board members interfering with municipal government, and holding themselves as representatives of the board in the process.  B)  The Commission ignored their own advisory opinion regarding Board member [...]’s Facebook post in Count 10 (Raised at: Pa15)  Count 10 considers the Facebook posts of Board member [...] regarding the referendum:  During the week of October 11, 2021, Board Member Jim [...] made a number of posts to Facebook regarding the referendum, in particular one purporting to answer a number of open referendum questions (Exhibit H).  While he included a disclaimer was speaking as a member of the public and not as a Board Member, Mr. [...] intentionally withheld material, non-private information about the Referendum, and attempted to mislead readers about the costs of the referendum and what other options might look like.  He also omitted a number of questions entirely from his answers.  Mr. [...] can voice his opinion as a member of the public, but by misleading the public he broke his trust with the public as a BOE member (Complaint, Pa28)  The Commission’s response that “the social media activity here was either made in a private/personal capacity, appropriately disclaimed, and/or clearly not in one’s official capacity” is inadequate, flies in the face of Commission precedent, and is on its face, arbitrary and capricious.
[brief] A265-266.  With regard to the substantive fairness of the divorce judgment, [...] admitted “that defendant certainly did not obtain the amount of equitable distribution nor support which one would likely obtain in the vast majority of matters in which there are similar facts,” but said it was not “so one-sided as to shock the court's conscience" and warrant Rule 4:50 relief.  A257.  "[A]lthough the PSA was not optimal to defendant," its terms "as to distribution of assets was not so highly disproportionate to defendant’s detriment considering the totality of the factual circumstances surrounding the marriage."  The Property (Matrimonial) Settlement Agreement was "clear and unambiguous," A264.  "At paragraph 9 of the PSA there was a mutual waiver of alimony by the parties, paragraph 13 provided defendant the 2010 Mercedes Benz E550 valued at $55K, paragraph 15 included a waiver by defendant of any bankruptcy proceeds, paragraph 21 provided defendant with a $200K payment for equitable distribution and defendant’s mother the amount of $57,000, paragraph 16 incorporated the MMA terms into the PSA including the cessation of any control defendant had over [...] and [...] set forth in paragraph 6 of the MMA and an indemnification by plaintiff for defendant’s criminal defense fees, paragraph 17 distributed all other tangible personal property to the parties which was in their possession."  A264-265.
[brief] TABLE OF CONTENTS  TABLE OF AUTHORITIES ........................................................................................................ iii  TABLE OF JUDGMENTS, ORDERS AND RULINGS ..................................................  viii  PRELIMINARY STATEMENT .................................................................................................  1  COUNTERSTATEMENT OF FACTS ....................................................................................  2 COUNTER-PROCEDURAL HISTORY .....................................................................................  4 LEGAL ARGUMENTS ..............................................................................................................  7 POINT I.  STANDARD OF REVIEW(Raised Below: Pa36-Pa37) ....................... 7 POINT II.  THE TRIAL COURT DECIDED CORRECTLY THAT APPELLANT DOES NOT HAVE COGNIZABLE CLAIMS UNDER THE NJCFLA OR THE CFA (Raised Below: Pa43-Pa51)  .........................................................  9  A.  There is No Private Right of Action Under the NJCFLA ....................... 9  1.  This Court’s Recent Decisions Confirm Conclusively that There is No Private Right of Action .........................................................  9  2.  The Trial Court Relied Correctly on Prior Decisions Holding That There is No Private Right of Action ..............................................  10  B.  Appellant’s CFA Claim Fails Because She Did Not Plead  The Requisite Elements of the Claim .................................................................  14  1.  Respondents’ Purported Actions Do Not Constitute Unlawful Conduct  Under the CFA .........................................................  15  a.  Collection of a Third-Party Debt is Not Conduct Covered Under the CFA .........................................................  15 b.  The Cases Appellant Cites Do Not Apply to Respondents’ Purported Conduct .........................................................  17  2.  Appellant Did Not Plead an Ascertainable Loss ...... 19 a.  Appellant Did Not Pay Any Money or Even Dispute the Debt at Issue ......................... 19 b.  Appellant Did Not Cite Applicable Caselaw...  21 POINT III.  THE TRIAL COURT DECIDED CORRECTLY THAT APPELLANT CANNOT SUSTAIN CLAIMS FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF (RAISED BELOW: PA43-PA44)  ...............  22 POINT IV.  THE TRIAL COURT DECIDED CORRECTLY THAT APPELLANT’S FDCPA CLAIM IS BARRED (Raised Below: Pa51-Pa52)  ..............  24  A.  Appellant May Not Bring a Claim to Enforce a Purported Violation of the NJCFLA Indirectly Through the FDCPA Because She Cannot Bring Such a Claim Directly Under the NJCFLA .....................  24  B.  The Cases Appellant  Cites Undermine New Jersey’s Strong Interest in Deciding How the NJCFLA Will Be Enforced  ..........  26  CONCLUSION  ..................................................................................................................
[brief] (Appx 37).  For years, Plaintiff has perjured herself regarding her convictions, putting Defendant at risk of losing its license.⁴ (Appx 523 at ¶10).  --- ⁴  Notably, the name Plaintiff used on her REM NJ application (“[...]”) differs from the name under which Plaintiff was convicted (“[...]”).  (Appx 58-65; Appx 67-74; Appx 76, Appx 78, Appx 81-83).  Had Plaintiff told the truth, she would not have ever been hired.  (Appx 196 at ¶¶8-10).  E.
[brief] The Department leans heaving into the unremarkable concept that seeking to determine legislative intent behind an existing statute from pending legislation is problematic.  *In re Galloway Tp. and City of Bridgeton*, 418 N.J. Super. 94, 104-05 (App. Div. 2011).  However, pending legislation can be an indication that an agency has changed course as is the case with S3636 and A317.  Notably, despite the fact that the Department admitted for over a decade that new legislation needed to be passed to allow it to apply the Holding Act to reciprocals and to apply SSAP No. 25 to the AIF Fees, the only bills introduced on the subject directly contradict the Department’s current position and support [...]’s.  In short, the Department’s insistence on imposing the Holding Act on reciprocals who are unaffiliated with insurance holding companies and SSAP No. 25 on reciprocals’ AIF Fees is a gross overreach by the Department that violates this State’s substantive and procedural requirements and those of the contracts clause of United States’ Constitution.
[brief] [...] found the facts revealed that [...]’ repertoire of theft techniques had expanded during the Non-RICO SOL Period.  Echoing [...]’s findings, [...] found [...]’ wrongful conduct during that Non-RICO SOL Period to be qualitatively more reprehensible than that which occurred during the preceding 16 years, finding it particularly disturbing that despite being members of the Bar, [...] continued to steal and conceal from their partners in spite of – and in response to – “litigation events,” including this Court’s 2006 Opinion:  As part of a larger scheme of fraud and criminality, … “[...] were forced by what the accountants uncovered to admit that they took funds from [the Partnership] without authorization, without rationale, … or disclosure.  It was simply an arbitrary removal of funds to the detriment of non-Wilf partners.
[brief] ”  Id. at 323.  In fact, there are no published cases in New Jersey supporting the notion that either the applicability of the ECD may be delegated to an arbitrator, or that the issue of arbitrability may be delegated to the arbitrator under the [...]’s Construction Industry Rules, which are narrower than the Commercial Rules.  The [...]’s Commercial rules and procedures state:  In this case, the parties instead chose the [...]’s Construction Industry rules:  Clearly, the [...] Commercial Rules are more expansive and expressly permit “arbitrability” being delegated to the arbitrator—while the Construction Industry rules noticeably do not.  In an analogous example, in Stockling v. Evicore Healthcare MSI, the parties’ arbitration provision incorporated the Employment Arbitration Rules.  2024 WL 3409444, at *4 (D.N.J. 2024).  Unlike the Commercial Rules, the Employment Rules mirror exactly the Construction Industry Rules:  And accordingly, in Stockling, the court found that “[t]he language of the delegation clause…does not indicate a ‘clear and unmistakable’ intent to divert issues of arbitrability to an arbitrator, and is directly disputed by Plaintiff, so judicial determination is required. ”  Id. at *2; see also DCK N. Am., LLC v. Burns & Roe Servs. Corp., 218 F. Supp. 3d 465, 474 (W.D. Pa. 2016) (“the parties’ [Construction Industry] arbitration provision is distinguishable from…those cases from other circuits where reference to Rules evidenced a clear and unmistakable intent to arbitrate the question of arbitrability”).  Similarly, here, neither the parties’ arbitration provision nor the parties’ calculated decision to permit the trial court to determine arbitrability and the applicability of the ECD meets the “onerous” standard for referral to arbitration.
[brief] As the foregoing makes clear, no Court intervention should be required as all the Redeveloper needs to do is comply with its obligations under well established State Law, the Borough Code, Municipal Land Use Law, and the Redevelopment Agreement.  The [...] and its officials have done everything in their power to facilitate the Project being expeditiously completed and providing alternative sites for the construction of offsite units.  The Redeveloper, rather than operate under the law, has instead attempted to bypass all of the foregoing in an attempt to usurp any inconvenience it can conceive.  It is respectfully requested the Court deny all prayers for relief by the Redeveloper, and instead allow the Redeveloper to present its case to the Mayor and Council, and then, if need be, the local land use board.
[brief] As we will address in greater detail *infra*, this appeal does not touch upon whether either side can insist on allowing the public into bargaining sessions. consistent with the requirement for the sides to negotiate in good faith within the boundaries of the NJEERA.  (Pa231-232).  [...] continued by highlighting that Section 5.3 of the NJEERA details the right for public employees to negotiate with employers “though representatives of their choosing”, through the use of majority representatives.  (Pa232).  [...] elaborated on this right under Section 5.3:  “Application of the majority rule concept,” our Supreme Court has held, “brings the collective strength of all the employees in the unit to the negotiating table and thus enhances the chances of effectuating their community purposes and serving the welfare of the Group. ”  Lullo v. International Ass’n of Fire Fighters, 55 N.J. 409, 426-427 (1970).  (Pa233).
[brief] For instance, when the [...] sued to vacate an arbitrator’s award for “reading terms” into its CNA by interpreting the term “just cause,” the New Jersey Supreme Court ruled that the arbitrator had acted within his contractual authority.  Specifically, the Supreme Court found that Just cause was not defined in the Agreement, and therefore it was necessary for the arbitrator to give meaning to the term.  The arbitrator did that.  In our view, the fair and reasonable interpretation of the arbitrator's decision is that the arbitrator found there was no just cause to terminate the employee.  That decision is reasonably debatable, and therefore, the trial court properly confirmed the award.