ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] (Da267-84).  On March 31, 2022, this Court affirmed defendant’s new sentence.  (Da197-212).  On October 7, 2022, the New Jersey Supreme Court denied defendant’s petition for certification.  (Da213).  The PCR court also properly denied defendant’s claim pertaining to the lack of a sentencing brief prior to the first sentencing hearing.  Defendant failed to demonstrate that counsel was deficient for failing to submit a written brief when he provided reasonable representation at sentencing by arguing against aggravating factors and in favor of a mitigating factor.  Defendant also failed to demonstrate any resulting prejudice because his sentence was vacated and on remand his new defense counsel filed a brief and advanced mitigating factors on defendant’s behalf.  (Da276-80).  The trial court rejected those factors and defendant’s sentence was affirmed on appeal.  Accordingly, defendant failed to present a prima facie claim of ineffective assistance of counsel.  Thus, the PCR court properly denied his claim.  Based on the foregoing, the State respectfully requests that this Court affirm the denial of defendant’s PCR claim.
[brief] ...........................................  10  1)  The delay in seeking the arbitration request ........................................  11  2)  The filing of any motions, particularly dispositive motions, and their outcomes .......................................................  12  3)  Whether the delay in seeking arbitration was part of the party’s litigation strategy ..................................................  13  4)  The extent of discovery conducted ......................................................  14  5)  Whether the party raised the arbitration issue in its pleadings, particularly as an affirmative defense or provided other notification of its intent to seek arbitration ..................................................  15  6)  The proximity of the date on which the party sought arbitration to the date of trial……………………………………17  7)  The resulting prejudice suffered by the other party, if any………..17  III.  DEFENDANT IS NOT ENTITLED TO SPECIAL TREATMENT FOR HIS PRO SE STATUS (Briefed but not Argued Below)……………………………19
[brief] Galicia, 210 N.J. at 388.  Thus, any error arguing the charge improperly limited [...]’s theory of liability is harmless, because [...]’s version of events was only supported by his subjective belief that he and [...] were covered in grout.  The bodycam video contradicted [...]’s account and simultaneously corroborated [...]’s version of events.  Likewise, [...] did not see any grout on him and could not explain why.  Further, [...] testified the incident could not have occurred the way [...] claimed unless he was covered in grout.  Subjective self-serving statements that are disproven by objective, physical evidence are not the type of evidence that could lead to an unjust result requiring reversal.
[brief] THE JUDGE BELOW PROPERLY RULED THAT POLICE OBTAINED VALID CONSENT TO SEARCH DEFENDANT’S RESIDENCE. \(^7\)  Defendant claims that, despite signing the consent-to-search form, he never voluntarily consented to the search of his home for three reasons: first, the police threatened to “tear through the house” if he refused consent; second, the police inferred that a search was inevitable regardless of whether he consented or not; and, third, officers suggested that the police, as opposed to \(^7\)
[brief] The Trial Court also made three queries which it answered as pertinent to the motions for summary judgment:  **Question 1:**  Was the Right of First Refusal (ROFR) conferred by [...] upon [...] in their MFSA for the potential sale and purchase of the real estate, business and equipment in use at the Exxon station located at [...] ("Premises"), currently owned by [...], clear, unambiguous, valid, and binding upon the parties?  If so, **Question 2:** Was the valid final "bona fide offer"\(^{38}\) made by the [...] to purchase the Premises not delivered by the [...] Defendants until May 8, 2023 (instead of May 4, 2023 or earlier)?  If so, **Question 3:** Is [...] entitled to specific performance of the ROFR even though (i) [...] accepted the original Offer made by [...] and executed the PSA before ever presenting it to [...], (ii) [...] thereafter amended it to conform with the preemptive right of first refusal provisions and early termination penalty provisions of the MFSA, but did not deliver the final "bona fide offer" and executed Second Amendment until May 8, 2023, and (iii) [...] subsequently rescinded the PSA and First Amendment - once revised by the Second Amendment of May 8, 2023 - to disclose the ROFR and other material terms (and [...]’s commitment to post-institution of this litigation?
[brief] A.  The Plain Language of N.J.S.A. 39:4-126 Does Not Require a Motorist to Signal a Lane Change Because a Lane Change is Not a “Turn” Within the Meaning of the Statute.  Alternatively, the Word “Turn” as Used in the Statute is Unconstitutionally Vague as Applied to the Conduct of Changing Lanes.  Whether the Motor Vehicle Code requires a motorist to signal a lane change under any circumstances is an issue of first impression in New Jersey.
[brief] [...] emphasizes that [...] modified the Mold Exclusion in the latter three policies by eliminating the anti-concurrent (“ACC”) clause that existed in the first two policies.  According to [...] “[e]limination of the ACC clause from the three policies at issue broadened coverage when there are insured events in the chain of causation leading to mold damage. ”  Db18.  [...] did not eliminate the ACC clause since it continued to bar coverage for liability “caused directly or indirectly” by fungi or mold.
[brief] Instead of asking [...] what was said by others, the judge asked a follow-up question that she called “very specific,” but which was actually insufficient: “Have you had interactions with your fellow jurors about any interactions they have had with witnesses outside of -- with -- witnesses connected to this case?” (7T 40-20 to 23) (emphasis added).  [...] replied, “No,” and, after defense counsel moved for a mistrial -- noting that [...] had by that point sat through two trials and knew exactly what he was doing, trying “to warm up to them out there” -- the judge denied the motion, ruling that the conversation was “innocent” and would not impact the verdict.
[brief] A month and a half before Plaintiffs purchased Unit 1601 in [...], Plaintiffs purchased two luxury (2) condominium units in the same municipality – [...].  These two luxury condominiums were located in [...], a condominium complex with an address of [...].  This building is only .5 miles away from [...] Street.  Unit 6080 at [...], which includes a parking space, was purchased on November 10, 2017, by Plaintiffs for $695,000.00.  The second condominium, Unit 6150, was also purchased by Plaintiffs on November 10, 2017, for $455,000.000.  Exactly forty-three (43) days after the two (2) [...] purchases, Plaintiffs signed the SPA for the purchase of Unit 1601.  These two Plaintiffs possessed the means to purchase all three luxury condominium units in forty-three (43) days, situated half a mile apart, and which are all subject to mortgage payments from certain financial institutions.  This is not the average consumer with unequal bargaining power entering the marketplace on a take-it-or-leave-it basis.
[brief] [...]  Attorneys for Defendants/Respondents, [...], Esquire & [...]  [...] /s/ [...] BY:_____________________________________  JOHN L. SLIMM  [...]  Dated: April 26, 2023  [...], [...], [...] and [...], Plaintiffs/Appellants, v. NICHOLAS MENAS, ESQ.; COOPER, LEVENSON, APRIL, NIEDELMAN & WAGENHEIM, P.A.; [...]; [...]; [...]; [...]; [...]; [...]; [...], ESQ.; [...]; [...]; [...]; AND [...], JOHN DOES 1-10, AND JANE DOES 1-10 (NAMES BEING FICTIONAL AS TRUE IDENTITIES ARE UNKNOWN), Defendants/Respondents.
[brief] For example, [...] attended numerous trade shows – all over the country – to promote [...] products, with [...]’s branding displayed next to [...]’s branding.  (See Pa541, Answer to Interrogatory No. 6).  [...] also routinely posted on social media to similarly promote the brand.  (See Pa579 – Pa596).  [...] also invested in wrapping its trucks with [...] branding, created printed marketing materials and video testimonials for the [...] brand.  (See Pa541, Answer to Interrogatory No. 6).  Furthermore, [...] also built – with its own funds and manpower – numerous displays for [...] dealers in the North East at no cost to the dealers, to catapult the promotion of the [...] brand.  (See id.)  Likewise, [...] and [...] coordinated efforts with [...].  For example, [...] offered to promote [...]’s “EOK” outdoor kitchen framework, agreeing that promotion of this [...] product would be to the mutual benefit of [...] and [...].
[brief] It reads:  (4)  engaging in conduct proscribed by subsection a. of this section  There is only one way to read section B(4) of the Railroad immunity statute.  A plain language reading clearly suggests that this section only immunizes the railroad if someone engages in conduct in violation of section A.  Section A is specific to location.  A violation of section A can only occur on a railroad right of way.  Under section B(4), subject to exceptions, a railroad is immune when someone comes into contact with railroad equipment upon the railroad’s right of way.  (emphasis added)  This section only applies to incidents that occur on a railroad right of way.  Considering the exceptions clearly articulated in section A, unless you are an employee, a passenger for hire utilizing those parts of a railroad intended for passenger use, or a person using a crossing established by the railroad, (emphasis added) pursuant to N.J.S.A. 48:12-152 b(4), if a person comes into contact with railroad equipment on a railroad right of way, and is injured, the railroad is immune from civil tort liability.  Applying the facts of the instant case to this analysis, as [...] was indisputably using a railroad crossing, within the crosswalk and using a crossing established by the railroad defendants, thus within an exception to the immunity statute, these defendants were not immune to civil tort liability pursuant to section B(4) of the statute.
[brief] Because this omission went to the heart of the charged conduct, it is presumed to be reversible error.  See State v. Dehart, 430 N.J. Super. 108, 119-20 (App. Div. 2013) (failing to instruct the jury on a critical element is prejudicial error).  Although there was no objection to the prosecutor’s comment in Lopez, this Court found it was “clearly capable of producing an unjust result.”  359 N.J. Super. at 233.  In that case, the prosecutor’s theory of possession was joint possession; the jury was instructed on the definition of joint possession; and the State presented evidence that the co-defendants shared the drugs found in their apartment.  Id. at 233, 236.  Thus, “the trial court’s failure to correct [the prosecutor’s] material misstatement of law amounted to plain error, R. 2:10-2, requiring reversal of defendants’ convictions.
[brief] When an anonymous tip is conveyed through a 9-1-1 call and contains sufficient information to trigger public safety concerns and to provide an ability to identify the person, a police officer may undertake an investigatory stop of that individual.  *State v. Gamble*, 218 N.J. 412, 429 (2014).  First, the report was conveyed through a 9-1-1 call.  1T41:4-6.  Second, the 9-1-1 caller provided sufficiently detailed information such that police were able to accurately identify the suspect.  Third, carrying a handgun unlawfully in public presents public safety concerns.  The New Jersey Supreme Court has acknowledged the public safety risks associated with the unlawful carrying of firearms.  See Florida v. J.L., 529 U.S. 266, 272 (2000) and State v. Des Marets, 92 N.J. 62, 82 (1983) (overruled on other grounds)].
[directive] 4th Degree $500 to $2,500 10% permissible  Actor knowingly or recklessly maintains a condition which endangers the safety or health of a considerable number of persons or knowingly maintains any premises or place where people gather for the purpose of engaging in unlawful conduct; disorderly persons offense unless the Maintaining a 2C:33-12(a-c) premises are conducted or maintained as a house of prostitution or as a place where obscene Nuisance material is sold, photographed or manufactured, exhibited, prepared or shown.
[directive] SAFE Kit Retention Policy  All SAFE kits taken from a victim who has not reported the crime to law enforcement or has not released the collected evidence to law enforcement, shall be retained for a minimum of 20 years from the date of collection, and where the victim is a minor, for a minimum of 20 years after the victim reaches the age of 18.  At the time of collection of the kit, the Forensic Nurse Examiner (FNE), or other healthcare provider, will seek the consent of the victim to release the kit to the designated investigative law enforcement agency.  In situations where the victim withholds consent to release to law enforcement, the FNE, or other healthcare provider conducting the examination shall review options for anonymous retention with the victim, shall ensure documentation of the victim’s preferences in the forensic medical record,11 will advise the victim of the expiration date of the 20-year retention period, and the victim’s right to report the assault and submit the kit for testing at any time until the end of the retention period.  Ibid.  10  The forensic medical record is the documentation created by the nurse examiner during the forensic medical exam.  11  When the victim does not consent to release of the SAFE kit to law enforcement, the Sexual Assault Response Team (SART) coordinator shall be responsible for submission of the SAFE kit to the county designated storage location.  Those unreported kits being held will be labeled externally in a manner that both protects the confidentiality of the victim and is consistent with the requirements of section III.A.  At the time of SAFE kit collection, every victim will be afforded the option to release the kit to law enforcement as part of a criminal investigation, or to request that the SAFE kit be retained.  Retained SAFE kits are identified as unreported or “Hold” kits.  The victim will be notified of the right to request an unreported SAFE kit be released to law enforcement in furtherance of a criminal investigation at any point during the 20-year retention period.
[brief] PLAINTIFF’S COMPLAINT WAS PROPERLY DISMISSED PURSUANT TO RULE 4:6-2(e)  WHERE PLAINTIFF’S COMPLAINT FAILED TO STATE  A CLAIM FOR WHICH RELIEF COULD BE GRANTED AS TO DEFENDANTS  [...] AND PRINCIPAL  [...] (Pa3; Pa6; Pa9) .........................................................................................  6  A. DISMISSAL OF PLAINTIFF’S NJLAD RETALIATION CLAIMS (COUNTS I AND II) WAS PROPER WHERE PLAINTIFF COULD NOT ESTABLISH A PRIMA FACIE NEW JERSEY LAW AGAINST DISCRIMINATION
[brief] However, despite such direction, every law enforcement officer failed to initiate their body worn camera prior to purportedly knocking and announcing.  In fact, a review of the Body Worn Camera footage provided does not show law enforcement officers knocking and announcing their presence.  Nor does it show law enforcement allowing a reasonable time for [...] to open the door.  In fact, the Body Worn Camera footage provided only depicted law enforcement using a metal ram to open the door.  During the hearing the State elicited testimony from their sole witness, [...].
[brief] The municipal prosecutor noted that the MVR footage was available to be played if defense counsel or the court wanted to do so.  (2T27:25 to 2T28:3).  [...] found that there was reasonable articulable suspicion for [...] to have defendant perform the SFSTs, and the results of those tests as well as the other indicators of intoxication observed by [...] gave him probable cause to arrest defendant.  (2T28:24 to 2T30:11).  Thus, defendant’s motion was denied.
[brief] (4T90-2 to 24).  Defendant had a white shirt with red stains, consistent with blood, on the lower left, and sneakers that also had a reddish stain on the heal, which also was consistent with blood.  (4T93-9 to 94-5).  While photographing defendant’s person, [...] noticed defendant had an injury to his right thumb and there was blood on his hand.  (4T91-10 to 14).  A buccal swab was then taken from defendant.  (4T91-15 to 18).  After documenting defendant, [...] returned to [...].
[brief] | CASES | PAGE | |-------------------------------------------|------| | Albright v. Burns, | 17 | | 206 N.J. Super. 625 (App.Div. 1986) | | | Cesare v. Cesare, 154 N.J. 394 (1998) | 16 | | Fagliarone v. Twp. of No. Bergen, | 16 | | 78 N.J. Super. 154 (App.Div. 1963); | | | certif. den., 40 N.J. 221 (1963) | | | Foont-Freedenheld v. Electro-Protective, | 24 | | 126 N.J. Super. 254 (App.Div. 1973), | | | aff’d, 64 N.J. 197 (1974) | | | Gerard v. DiStefano, | 17 | | 84 N.J. Super. 396 (Ch.Div. 1964) | | | Gnall v. Gnall, 222 N.J. 414 (2015) | 16 | | Handelman v. Handelman, 17 N.J. 1 (1954)| 35 | | In re Estate of Roccamonte, 174 N.J. 381 (2002) | 23 | | Jewish Center of Sussex County v. Whale, | 24 | | 86 N.J. 619 (1981) | | | Judson v. Peoples Bank & Trust Co. of Westfield, | 17 | | 17 N.J. 67 (1954) | | | Mani v. Mani, 183 N.J. 70 (2005) | 37 | | Miller v. Miller, 160 N.J. 408 (1999) | 18 | | N.H. v. H.H., | 18 | | 418 N.J. Super. 262 (App.Div. 2011) | | | State v. K.P.S., 221 N.J. 266 (2015) | 32 | Thieme v. Aucoin-Thieme, 227 N.J. 269 (2016)
[brief] STANDARDS OF REVIEW.  A.  Standard of Review for a Motion to Dismiss.  Motions pursuant to Court Rule 4:6-2(e) for failure to state a claim upon which relief can be granted are reviewed de novo.  See, e.g., Baskin v. P.C. Richard & Son, LLC, 246 N.J. 157, 171 (2021) (citing Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108 (2019)).  “A reviewing court must examine ‘the legal sufficiency of the facts alleged on the face of the complaint,’ giving the plaintiff the benefit of ‘every reasonable inference of fact. ’”  Id. (citing Dimitrakopoulos, 237 N.J. at 107 (quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989))) (emphasis added).  “The complaint must be searched thoroughly ‘and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim, opportunity being given to amend if necessary. ”’  Id. (citing Printing Mart, 116 N.J. at 746 (quoting Di Cristofaro v. Laurel Grove Mem’l Park, 43 N.J. Super. 244, 252 (App. Div. 1957))).  “Nonetheless, if the complaint states no claim that supports relief, and discovery will not give rise to such a claim, the action should be dismissed. ”  Id. (quoting Dimitrakopoulos, 237 N.J. at 107) (emphasis added).  While “dismissals under Rule 4:6-2(e) are ordinarily without prejudice…a dismissal with prejudice is ‘mandated where the factual allegations are palpably insufficient to support a claim upon which relief can be granted,’ [] or if ‘discovery will not give rise to such a claim[.]’  See Mac Property Group LLC & The Cake Boutique LLC v.  Selective Fire and Cas. Ins. Co., 473 N.J. Super. 1, 17 (App. Div. 2022) (quoting Rieder v. State, 221 N.J. Super. 547, 552 (App. Div. 1987) and Dimitrakopoulos 237 N.J. at 107)) (emphasis added).  B.  Standard of Review for a Motion for Reconsideration.  Motions for reconsideration pursuant to Court Rule 4:49-2 are reviewed for an abuse of discretion.  See, e.g., Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021).  “An abuse of discretion arises when a decision is made without [(1)] a rational explanation, [(2)] inexplicably departed from established policies, or [(3)] rested on an impermissible basis. ”  See, e.g., Kornbleuth v. Westover, 241 N.J. Super. 289, 301 (App. Div. 2020) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 261, 571 (2002)) (internal quotations omitted); see also [...] & [...], Current N.J. Court Rules, cmt. 2 on R. 4:49-2 (2022).  C.  Standard of Review for a Motion to Recuse.  Motions for recusal are “entrusted to the sound discretion of the judge and are subject to review for abuse of discretion. ”  See State v. McCabe, 201 N.J. 34, 45 (2010) (citing Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001)).  II.  THE COURT BELOW DID NOT ERR BY DETERMINING PLAINTIFF’S COMPLAINT WAS TIME BARRED BASED UPON THE APPLICABLE STATUTES OF LIMITATIONS.
[brief] In relevant part, the 2019 [...] resolution summarized the testimony of the applicant’s planner as follows:  She related her perception, from her review of [...]'s Master Plan documents, that the purpose of the prevailing 30 ft. height standard in the SM Zone District is to limit types of manufacturing, and not to constrain warehousing.  She concluded that none of the Master Plan’s stated goals and objectives would be undermined by the height of the proposed building.  …  Ja120-Ja121 (emphasis added).  The 2019 [...] resolution then makes the following “Conclusions of Law”:  The Board finds that the proposed height variance for the principal structure to allow it to be 48.3 ft. tall when a height of 30 ft. is permitted may be granted because the underlying warehouse/office use is a permitted use, and the requested variance does not render the use less suitable for the proposed site than it would otherwise be.  There is no evidence in the record that the taller warehouse will be a substantially more intense use than a warehouse of conforming height, and it does not appear as though the target of the SM Zone District height limitation was warehousing.  So, the requested height cannot be said to substantially impair the zone plan and zoning ordinance.
[brief] [...]  Attorney for Defendants-Respondents  [...] [...] [...] [...]  [...]  Date Submitted: September 20, 2024  #  TABLE OF CONTENTS | Section | Page | |------------------------------------------------------------------------|------| | TABLE OF AUTHORITIES | ii | | PRELIMINARY STATEMENT | 1 | | PROCEDURAL HISTORY | 2 | | STATEMENT OF FACTS | 2 | | LEGAL ARGUMENT | 5 | | POINT I | | | PLAINTIFF’S ARGUMENT THAT THE ONGOING STORM DOCTRINE IS INAPPLICABLE IS WITHOUT MERIT | 5 | | POINT II | | | THE TRIAL COURT DID NOT WEIGH ONE EXPERT REPORT MORE HEAVILY THAN ANOTHER | 13 | | CONCLUSION | 16 | ###
[brief] [...], Plaintiff-Appellant, vs. [...], Defendant-Respondent.  SUPERIOR COURT OF NEW JERSEY APPELLATE  DIVISION DOCKET NO. [...]  CIVIL ACTION  Appeal from the Law Division of the Superior Court of New Jersey, Mercer County  Docket No. [...]  Sat Below: Hon. [...], J.S.C.  BRIEF OF DEFENDANT-RESPONDENT, [...]
[brief] B.  Discussion.  Defendants moved for summary judgment on the basis of sidewalk immunity.  They maintained that as residential owners of the property, they were not responsible for the abutting sidewalk under Nash v. Lerner, 311 N.J. Super. 183, 192 (App. Div. 1998), rev’d on other grounds, 157 N.J. 535 (1999).  Nash stands for the proposition that there is no duty on a residential property owner to repair or to maintain an abutting sidewalk damaged by the elements or wear and tear.  Nash, however, does not apply at bar because defendants created the sidewalk, and thus, created the hazardous condition.  The law is clear that because defendants caused the hazardous condition to exist, they may be held liable for injuries and damages incurred.
[brief] (22a)  This Court affirmed stating [...] did not err in determining [...] was the prevailing party and awarding attorney's fees.  This Court agreed, [...] obtained a judgment against the [...] on the merits requiring the [...] to give access to the requested records and caused the [...] to modify their denial of access behavior to directly benefit [...] by giving [...] access.  On 7/26/22, this Court granted [...]'s motion (MOTION NO. [...]) for attorney's fees on the appeal.  N.J. Court Rules, R. 2:11-4 D.