ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] Db – Defendant’s brief Da – Defendant’s appendix  Sa – State’s appendix  1T – June 3, 2019 pre-trial conference transcript 2T – June 26, 2020 motion hearing transcript 3T – August 19, 2022 pre-trial conference transcript 4T – August 24, 2022 jury selection transcript 5T – August 25, 2022 motion hearing transcript 6T – August 29, 2022  jury selection transcript 7T – August 30, 2022 jury selection transcript 8T – August 31, 2022 jury selection transcript 9T – September 7, 2022 trial transcript 10T – September 8, 2022 trial transcript  11T – September 12, 2022 trial transcript (vol. 1)  12T – September 12, 2022 trial transcript (vol. 2)  13T – September 13, 2022 trial transcript  14T – September 14, 2022 trial transcript  15T – March 13, 2023 sentencing transcript  PSR – Pre-sentencing report  PRELIMINARY STATEMENT
[brief] From the Office of U.S. Senator v. Wells, 204 N.J. 79, 103 (2010).  Courts nationwide, including the United States Supreme Court and the New Jersey Supreme Court, uniformly recognize parents’ fundamental Constitutional right to direct their children’s upbringing -- against which state interference with family matters are not condoned.  See Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (noting that this Court’s decisions “have respected the private realm of family life which the state cannot enter”).  “[P]arents have a substantial constitutional right … to direct and control the upbringing and development of their minor children. ”  *Halderman*, by *Halderman v. Pennhurst State Sch. & Hosp.*, 707 F.2d 702, 709 (3d Cir. 1983).  *See also Smith v. Org. of Foster Families*, 431 U.S. 816, 845 (1977) (“The liberty interest in family privacy has its source, and its contours are ordinarily to be sought, not in state law, but in intrinsic human rights, as they have been understood in ‘this Nation's history and tradition’”).  The United States Supreme Court has consistently recognized that “[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. ”  *Stanley v. Illinois*, 405 U.S. 645, 651 (1972).  Indeed, “so long as a parent adequately cares for his or her children (*i.e.*, is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children. ”  *Troxel v. Granville*, 530 U.S. 57, 68–69 (2000).  The Fourteenth Amendment’s Due Process Clause has a substantive component which “provides heightened protection against government interference with certain fundamental rights and liberty interests” including the right “to direct the education and upbringing of one's children…”  *Washington v. Glucksberg*, 521 U.S. 702, 720 (1997).  This right encompasses parents’ “fundamental right to make decisions concerning the rearing of” their children including “decisions concerning the care, custody and control of” their children.  *Troxel*, 530 U.S. at 68, 72 (upholding mother’s right to decide the frequency of her child’s visits with grandparents despite claims that such visits were in her child’s best interests).  The Supreme Court explained the entrenched Constitutional parental right as follows:
[brief] This factor weighs against Plaintiff.  Lastly, as to the twelfth factor, ‘the intention of the parties,’ it is unequivocal that the County’s RFP’s Technical Specifications sought the services of a ‘part-time’ County Counsel for which ‘[t]he individual selected will be paid at an hourly rate established by the [...], and will not be hired as an employee, or receive a salary or benefits. ’ [Pa26-Pa27 (emphasis in original)].  The Law Division judge dutifully applied the factor test and concluded that Plaintiff failed to establish that he was an “aggrieved employee or former employee” as required to assert a CEPA claim.
[brief] Id. at 194, and that “absent express contractual language signaling an agreement to arbitrate, a court has little to interpret in favor of compelling arbitration. ”  quoting *Garfinkel v. Morristown Obstetrics & Gynecology Assoc., P.A.*, 168 N.J. 124 (2001).  With respect to waiver provisions “an exculpatory clause can only bind the individuals who signed it. ”  *Gershon v. Regency Driving Center*, 368 N.J.Super. 237, 247 (App. Div. 2004).  Any doubts or ambiguities as to the scope of the exculpatory language must be resolved against the drafter of the agreement and in favor of affording legal relief.  Ibid.  In *Kernahan*, the Court also held that New Jersey’s Plain Language Act requires that “consumer contracts with conditions and exceptions to the main promise of the agreement shall be given equal prominence with the main promise and shall be in at least 10 point type.
[directive] BOLO query.  Agencies may compare a BOLO list against stored non-alert data where the results of the query might reasonably lead to the discovery of evidence or information relevant to any active investigation or ongoing law enforcement operation or where the subject vehicle might subsequently be placed on an active BOLO list (for example, may review data to determine whether a specific vehicle was present at the time and place where the ALPR data was initially scanned to check an alibi defense or to develop lead information for the purpose of locating a specified vehicle or person; or to determine whether a vehicle that was only recently added to a BOLO list had been previously observed in the jurisdiction before being placed on the list).
[directive] Officers involved in a pursuit shall not engage in any vehicle contact action except as a last resort to prevent imminent death or serious injury to the officer or another person where deadly force would otherwise be justified.  5.14  Officers shall not discharge a firearm against the driver or passenger of a moving vehicle except in the limited situations permitted under Section 4.6 of the Attorney General’s Use of Force Policy.  5.15  Officers shall not discharge a firearm from a moving vehicle except in the limited situations permitted under Section 4.7 of the Attorney General’s Use of Force Policy.  9
[directive] 23.  If the State proves each element of the alleged offense(s) beyond a reasonable doubt, would you have any difficulty in returning a verdict of guilty?  24.  The burden of proving each element of a crime beyond a reasonable doubt rests upon the prosecution and that burden never shifts to the defendant.  The defendant in a criminal case has no obligation or duty to Model Criminal Jury Voir Dire Questions Revised as Promulgated by Directive #4-07 Page 4 of 7 prove his/her innocence or offer any proof relating to his/her innocence.  Would any of you have any difficulty in following these principles?
[brief] [...]’s cross-appeal does not challenge the trial court’s determination that it owes insurance coverage to [...] for property damage that occurred at its former operating facility located in [...] (the “[...]”).  The covered property damage relates to the release of chlorinated volatile organic compounds (“CVOCs”) to the groundwater during the operations of the [...] from 1958 through 1993.  (Pa 91-92).  After nearly twenty years of litigation, that question is finally resolved in favor of [...].  It is only now that [...] has surrendered its long-standing challenges to liability, and [...]’s newly manufactured position, in its Brief, that [...] has not continually denied coverage is false and completely unsupported by the record in this case.  Again, [...], at the beginning of the hearing in this matter, counsel for [...] asserted:  “There is no coverage for these claims,” judge.  That’s the case. ”  (Pra 3)  (emphasis added).  Now, [...] attempts to argue, notwithstanding the trial court’s determination that it owes coverage, that [...] was not a successful claimant entitled to an award of attorneys’ fees under R. 4:42-9(a)(6).
[brief] is an agent of a party or a third party beneficiary to the contract. ”  *Hojnowski ex rel. Hojnowski v. Vans Skate Park*, 375 N.J. Super. 568, 576 (App. Div. 2005) (cleaned up); see also *Jansen v. Salomon Smith Barney, Inc.*, 342 N.J. Super. 254, 261 (App. Div. 2001).  In determining whether someone is a third-party beneficiary, courts look to the “contractual intent” of the parties as objectively manifested in the plain language of the agreement.
[brief] *Celino*, 211 N.J.Super. at 541.  Although it is true that in *Celino* there was no certified copy, whereas here Plaintiffs maintain the “certified copy” [...] is relying upon is facially defective, the Appellate Division did go on to discuss the requirement in a way that has direct impact on this case, and which will therefore be quoted at some length:  As we therefore construe the statutory condition of a retained certified duplicate copy, it is designed to ease the carrier's proof of mailing burden imposed by *Weathers* by providing it with a simple, expedient and effective alternative to reliance on standard practice in sending notices.  This alternative is its retention of a duplicate copy of the notice, certified to be a true copy.  But as we understand the intent of the statute, this mechanism requires that the duplicate be certified as a true copy contemporaneously with preparation and mailing of the original.  The whole point of the requirement is to permit a clerical employee or other custodian of the business record to testify that the file copy is known to be a true copy of the mailed document because the person mailing it so certified at that time.  The added weight of the evidence thus afforded to the file copy is therefore clearly dependent on a contemporaneous certification.  A certification made later would be hardly more than an in-house version of standard-practice proof.  Id. at 543 [emphasis added].  [...] failed to provide any evidence as to when the copy of the Cancellation Notice was certified.  As detailed above, the earliest appears to be 30 days after the notice was purportedly sent, hardly the “contemporaneous” certification required by Celino.  This complete failure of proof on an essential aspect of N.J.S.A. 17:29C-10, with which strict compliance was required, should have resulted in the denial of [...]’s summary judgment motion, and the entry of summary judgment as to liability in favor of the plaintiffs.
[brief] PRELIMINARY STATEMENT  In its opposition brief, Defendant materially misrepresents the facts and issues on appeal in this matter.  Defendant incorrectly contends that the issue on appeal is whether an interpretation from the Land Development Board (sitting as a Zoning Board) is necessary given the “differing interpretations” of the relevant ordinances.  (Db12-13).  However, the issue on appeal is not whether Zoning Board review is necessary to interpret the controlling ordinances.  The question is whether the Land Development Board (sitting as a Planning Board) has jurisdiction to approve Plaintiff’s site plan application for the permitted by-right use of the property as set forth in the Township Ordinances.  No ordinance interpretation is necessary, no use variance is necessary, and the Planning Board has jurisdiction to grant Plaintiff’s site plan application.  As Plaintiff demonstrated in its initial appellate brief, the two uses proposed in Plaintiff’s site plan are expressly permitted because “mixed uses of more than one principal commercial or industrial use” that “are part of a single site plan” are permitted in the Industrial Zone in accordance with Westampton Ordinance § 250-4.  (Pa3-Pa13).  [...]’s application proposed two principal commercial or industrial uses that were part of a unified and comprehensive site plan.  Defendant does not provide any argument to the contrary.  Further, the two uses proposed in Plaintiff’s site plan are expressly permitted by Westampton Township Zoning Ordinances and prior approvals, and Defendant provides no information which contradicts this fact.  Therefore, Defendant’s argument that any use not expressly permitted by the applicable ordinances is deemed prohibited is irrelevant.  (Db17-18).  Nonetheless, the case law Defendant relies on in support of its contention that any use not identified as permitted in the relevant ordinances is deemed prohibited is distinguishable.  Notably, the Westampton Township Zoning Ordinances do not state that any use not expressly permitted is prohibited.  For the reasons set forth herein and in Plaintiff’s initial brief, Plaintiff requests that this Court reverse the trial court’s December 8, 2022 order.  LEGAL ARGUMENT
[brief] The Board’s argument is based upon its interpretation of N.J.S.A. 34:13A-5.3, which reads in relevant part:  Representatives designated or selected by public employees for the purposes of collective negotiation by the majority of the employees in a unit…shall be the exclusive representatives for collective negotiation concerning the terms and conditions of employment of the employees in such unit…  A majority representative of public employees in an appropriate unit shall be entitled to act for and to negotiate agreements covering all employees in the unit and shall be responsible for representing the interest of all such employees without discrimination and without regard to employee organization membership…In addition, the majority representative and designated representatives of the public employer shall meet at reasonable times and negotiate in good faith with respect to grievances, disciplinary disputes, and other terms and conditions of employment.  The plain language of the statute reads that public employees have the right to select a majority representative to negotiate with a public employer over the terms and conditions of employment.
[brief] Table of Citations.........................................iv  Statement of Facts and Procedural History ............1-2  Standard of Review........................................2  LEGAL ARGUMENT  I.  THE HOLDING IN STATE  V. PETRELLO MUST BE OVERTURNED AS IT CLEARLY CONFLICTS WITH THE STATUTORY  LANGUAGE OF N.J.S.A. 39:4-50(C)  ..................................................2-7 (Raised below)  T3 3:23-25; 4:1-25; 5:1-25; 6:1-25; 7:1-25; 8:1-25; 9:1-7.  Conclusion......................................................7
[directive] A report shall be prepared by the screening service including any and all findings regarding 2. dangerousness and recommendations for treatment and released to the Court and counsel identified below; and by Form Promulgated Directive #21-20 (08/05/2020), [...] (KROL Order 6)  Nothing in this order prohibits the psychiatric screening center from admitting the NGRI 3. if acquittee hospitalization is deemed medically appropriate; and 4.  Should the screening center find that hospitalization is deemed medically appropriate the screening center shall immediately convey that information to the Court; and 5.  Should the screening center find that the acquittee can be released to the community with conditions the screening center shall contact this Court and counsel below prior to doing so and await instructions regarding transport and disposition.
[brief] Defendants’ Brief also cites the New York case of Bard v. Jahnke, 16 A.D.3d 896 (3rd Dept. 2005).  In that case, a carpenter performing various jobs at a dairy farm in upstate New York was injured when an unrestrained bull pinned him against a stall.  See Bard, 16 A.D.3d at 897.  The Third Department affirmed summary judgment because a “professor’s affidavit attesting to the alleged viciousness of breeding bulls in general was insufficient to raise a question of fact. ”  See Bard, 16 A.D.3d at 897.  Obviously, Bard is a New York case that carries no authority in New Jersey.  Further, applying Bard to this case would, again, require an over-generalization of the facts and legal argument set forth by Plaintiffs.  Bard involved an unrestrained bull under no particular direction engaging in non-descript aggression.  In contrast, Plaintiffs establish a fact question as to Defendants knowledge of [...]’s natural inclination to engage, during the breeding process, in the specific kind of unprovoked sustained, to-kill style of attack that he actually did engage in.  The plain language of Jury Charge 5.60B and Appellate Division case law point in the direction articulated by the Restatement (Third) of Torts, which is consistent with the current scientific understanding of stallion reproductive behavior.  Therefore, Plaintiff respectfully requests that the Appellate Division grant Plaintiffs’ appeal because the Motion Court erred when it determined that the motion record had no basis to find that [...], as a “stallion[] in the breeding environment ha[d] an inherent vicious or dangerous trait or propensity. ” (Pa1090a).
[brief] And improper methods for obtaining earlier statements can have lasting damaging effects:  “A natural concern in those circumstances is that ‘after an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. ’”  *State v. Bullock*, 253 N.J. 512, 535 (2023) (quoting *State v. Carrion*, 249 N.J. 253, 275-76 (2021)).  At the time of the phone calls, [...] had no idea that the improperly elicited statements he had made in the formal interview just hours earlier were going to be suppressed.
[brief] A.  Standard of Review as to the Granting of Defendants’ Motion for Summary Judgment.  The Appellate Division’s review of the granting of a motion for summary judgment is review de novo.  New Jersey Appellate Courts have consistently held that “[a] trial court’s interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference” and, hence, an “issue of law [is] subject to de novo plenary appellate review. ”  Estate of Hanges v. Metropolitan Property & Cas. Ins. Co., 202 N.J. 369 (2010) (citing City of Atl. City v. Trupos, 201 N.J.447, 463 (2010)).  Furthermore, the appellate court is “obliged to view the facts in the light most favorable to the non-moving party” who in this case, is Respondent-Plaintiff.  Estate of Hanges v. Metropolitan Property & Ca. Ins. Co., 202 N.J. 369, 374 (2010) (internal citations omitted).  POINT I
[brief] First, Defendant distorts the testimony of both industrial real estate expert [...], and [...], Plaintiff’s Chief Development Officer, to support its conclusion that more storage capacity through greater building height equates to an increase in intensity of land use.  Db28-Db29.  Mr. Terkanian provided detailed testimony, supported by his experience in industrial real estate, and explained two graphs admitted into the record.  Ja105; Ja107.  He explained that taller buildings on smaller footprints, like the structures proposed, are necessitated by the industry’s technological advancements (racking systems, “pick mods”, high-reach equipment, etc.).  (5T 47:8-16; 52:13-25; 53:1-11).  As he put it, “[t]he whole industry is centered around higher buildings.  [Third-Party Logistic companies] are programmed to operate in higher buildings. ” (5T 47:8-16).  Mr. Landsburg provided similar testimony.  (5T 11:20-25; 12:1-10).  Neither ever suggested that such operational activity within a building increased land use activity outside that building.  Defendant cites Mr. Terkanian’s testimony that the industry has evolved with “[s]peeds to move the product faster, height to increase density of capacity. ”  Db28.  But the storage of more products within a higher structure, and their more efficient movement inside that building, does not by default mean that land use impacts have a negative upwards linear relationship, as Defendant wants to believe.  No evidence supports that invention.  Mr. Landsburg, Mr. Terkanian, and [...], PP, AICP, Plaintiff’s planning expert, all made it abundantly clear that the impact of product storage and movement was entirely within the building.  There was absolutely no testimony linking the greater height of the proposed building to increased traffic or other negative land use impacts.  Defendant also ignores the expert testimony from Mr. Terkanian and Mr. Phillips that increased building height permits more automation, and therefore leads to fewer employees: “So predominantly we’ve actually seen an inverse relationship with building height and number of people working in those facilities[,]” and “again, given the fact that a lot of the good storage and retrievable is automated, which translates into lower employee ratios than what warehousing had been 20, 30, 40 years ago. ” (5T 53:14-24; 81:4-10).  Second, Defendant ignored expert testimony on all of the bulk requirements, with the exception of height of course, likely because Mr. Phillips’ testimony provided more than enough support to satisfy the positive and negative criteria.
[brief] The Court Should Consider [...]’s Hardship in the Context of the Larger Investment in [...].  [...] has already realized the bulk of its return on its initial investment in the building at [...] through the conversion of the building to condominium units and its sale of over 90% of the former rental units for profit.  This broader context cannot be ignored.  The Hoboken RCO gives the Board considerable discretion in weighing a hardship increase to consider factors including: “Whether the landlord made a reasonably prudent investment in purchasing the property [,] …the purchase price [,] … [as well as] the amount of cash invested in the property in relation to… fair market value. ”  Hoboken, N.J., Code § 155-14(A)(3) (2018)  Overall, [...]’s investment in [...] has been extremely lucrative for the company.  However, when viewing [...]’s unit in isolation, as [...] has asked the Board and this court to do, the unit could not reasonably be considered a prudent investment, as the only way to render it as profitable as the other condo units would be to increase its rent so much, it would no longer be affordable to its long term, protected tenant.
[brief] RFP No. 7  Regarding Search Terms  [...]’s RFP No. 7 seeks:  Any documents, emails, texts, or other electronic communications (hereafter “RESPONSIVE HITS”) possessed by or under the control of [...] which are responsive to electronic searches [structured to identify anything with the terms of “[...]” OR “[...]” OR “Wilmore” AND “Derby” OR “usd260” OR “[...]” OR “bluevalley” OR “age” OR “old” OR “retirement” OR “woman” OR “female” OR terminate OR terminated OR fired OR fire AND with a creation date during the time period of January 1, 2019 through August 20, 2021 but excluding emails that Plaintiff was a recipient of during her employment, to include group emails that had Plaintiff as part of the distribution list] to be conducted on any mobile phones, computers, hard-drives, servers, or other electronic devices used for [...]’ business or work purposes by [...], [...], [...], [...], and/or [...] (as well as any other [...] employees not listed here but who were involved in any discussions or decisions about ending Plaintiff’s employment).
[brief] The Common Knowledge Exception Does Not Apply because [...]’s Professional and Ethical Duties are Not Known to Average Jurors.  Appellants’ arguments on appeal of the affidavit of merit issue are confused and contradictory.  First, they argue that the Affidavit of Merit Statute does not apply to their claim against [...] as pled (discussed above).  Appellants then go on to argue that the “common knowledge” exception to the Affidavit of Merit Statute applies to alleviate their obligation to serve one against [...].  Appellants ignore that by asserting the common knowledge exception, that are inherently accepting that the Affidavit of Merit Statute applies to their claim.  Appellants’ two arguments cannot be reconciled.