ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] “One of the main sources of proof of insanity or diminished capacity is the conduct of the defendant both at the time of the examination and earlier. ”  Ibid.  When a psychiatrist or psychologist relies upon a hearsay statement as a necessary element in the formulation of his opinion, “the testimony should be circumscribed by a limiting instruction to the effect that the jury should not consider the hearsay statement as substantive evidence relating to the question of guilt or innocence of the accused, but only as evidence tending to support the ultimate expert conclusion of the doctor on the question of insanity or diminished capacity.
[brief] While our courts have held “a police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant,” State v. Watson, 254 N.J. 558, 610 (2023), the detective’s testimony did not indicate that he was given information that was withheld from the jury.  [...]’s testimony did not create an “inescapable inference” that a non-testifying witness incriminated defendant.  In State v. Bankston, 63 N.J. 263 (1973), the Court determined that “a police officer's testimony that he ‘approached a suspect or went to the scene of the crime . . . upon information received’ does not violate the hearsay rule. ”  State v. Roach, 146 N.J. 208, 225 (1996).
[directive] FORM  (1)  As they pertain to the release of persons charged with a violation of N.J.S.A. 39:4- 50 (DWI) and/or N.J.S.A. 39:4-50.2 (Refusal); and (2)  Complying with a request by a defendant to obtain an independent test of his/her blood, breath or urine, pursuant to the provisions of N.J.S.A. 39:4-50.2(c).  (3)  Compliance with the provisions of any municipal Ordinance or Resolution adopted pursuant to Laws 2003, chapter 164, governing the detention of a person charged with a violation of N.J.S.A. 39:4-50 (DWI).  To the extent that these Guidelines may require a law enforcement agency to adjust any of the above policies or practices, the law enforcement agency should contact their appropriate legal advice.1 representative for legal  It is not a function of these Guidelines to unnecessarily delay, or otherwise interfere with: (1) the release of a defendant charged with a DWI and/or Refusal offense, to a responsible party; or (2) the release of a defendant charged with a DWI and/or Refusal offense in order for that defendant to exercise his or her statutory rights to obtain an independent test under the provisions of N.J.S.A. 39:4-50.2(c).  Nor do these Guidelines address the provisions of N.J.S.A. 39:4-50.23 concerning the mandatory 12-hour impoundment of a vehicle operated by a person arrested for DWI or Refusal.  For implementation of that statutory provision, law enforcement officers are referred to Appendix B of Attorney General Law Enforcement Directive No. 2004-1, P.L. 2001, c. 69, N.J.S.A. 39:4-50.22 & 39:4-50.23, "Guidelines for Mandatory 12-hour Impoundment of the Motor Vehicles.
[directive] Retention Schedule 9.4.1  Investigative records created during an internal affairs investigation are included in the "Records Retention and Disposition Schedule for Local Police Departments" issued by the New Jersey Division of Archives and Records Management.  Under the schedule, files concerning a criminal homicide must be permanently maintained.  The schedule also requires that any other file involving a criminal matter resulting in the subject officer’s arrest must be maintained for 75 years.  While the schedule further suggests that all other criminal or administrative internal affairs investigative records be maintained for at least 5 years, agencies should maintain these files as they relate to a particular officer for that officer’s career plus 5 years.  9.4.2
[brief] III.  If the December Terms are invalid, the January Terms would still require arbitration of this dispute.  (Da304.)  The trial court’s decision refusing to enforce arbitration was wrong for yet-another reason:  Even if Plaintiffs were to prevail on their arguments invalidating the December Terms, either because there was no mutual assent to arbitrate under Atalese or because it was Plaintiffs’ minor daughter who signed the December Terms, Plaintiffs would still be required to arbitrate their claims against [...] under the January Terms—which Plaintiffs agreed to and which this Court has already held are enforceable.
[brief] HEARING OFFICER:  And so as long as you understand it, and we are going to conclude this hearing here tonight, I want to thank both counsel for working very hard in coming to this agreement.  . . .  [(Pa33-Pa34, 3:23-7:11).]  As the dialogue demonstrates, both defense counsel and [...] specifically questioned Defendant relative to her understanding and acceptance of the settlement.  (Ibid.)  Additionally, Defendant expressly acknowledged her understanding and acceptance on the record.  (Ibid.).  Each defense counsel also independently verified that settlement had been reached, the terms, going so far as to clarify them adding to Plaintiff’s counsel’s recitation of the settlement reached and agreed upon.  (Ibid.).
[brief] Here, the [...] considered the testimony of [...]’s panel of expert witnesses as to the need for the Project.  (Aa69).  Specifically, the [...] recognized that [...]’s construction of a 16-inch transmission line required the installation of a regulator station that would reduce natural gas pressure between the transmission and distribution systems, thereby enabling the public utility to provide natural gas service to customers in [...] and surrounding areas in a safe, adequate, and reliable manner.  (Aa69-70; Aa772-73; Aa810-11; 1T132:10-133:13; 1T133:25-134:22).
[brief] To meet that burden, “[t]he prevailing party must support its fee application with proof of the reasonableness of the requested hourly rate, including evidence of the rates charged by lawyers of reasonably comparable skill, experience, and reputation in the relevant community. ”  *Hansen v. Rite Aid Corp.*, 253 N.J. 191, 215 (2023)  Here, as an initial matter, Landlord’s arguments regarding the amount of counsel fees it claims to be entitled to are essentially preempted because there Landlord may be found not to be entitled to any counsel fees.
[brief] Defendant claims that all “mutual” combat between two parties is adequate provocation, even if he “over-defends” himself.  (Db37-38).  However, defendant forgets what the actual definition of mutual combat is.  Namely, the Court has held that: “to reduce the offense from murder to manslaughter the contest must have been waged on equal terms and no unfair advantage taken of the deceased.  * * *  The offense is not manslaughter but murder where the defendant alone was armed; and took an unfair advantage of the deceased. ”  …  Another authority expresses the same rule in these terms:  “But if a person, under color of fighting on equal terms, kills the other with a deadly weapon which he used from the beginning or concealed on his person from the beginning, the homicide constitutes murder. ”  State v. Crisantos, 102 N.J. 265, 274-75 (1986) (emphasis added)(quoting 1, 2 2 C. Torcia, Wharton’s Criminal Law § 110 at 254, 525-26 (14th ed.1979)).
[brief] Finally, [...]’s testimony is obviously superior to [...] because he would have been able to testify: (1) as to which entries he personally made; (2) the reason for those entries; (3) the policy and procedures which allowed him to make those entries; and (4) any conversations he had with [...] and others regarding evening searches and counts.  In short, the failure of the [...] to produce the key witness with firsthand knowledge as to these issues results in the adverse inference that [...] performed his duties on August 16, 2019 in conformity with the rules and regulations of those Senior Corrections Officers who work third shift at [...].
[brief] It is common knowledge that different types of surfaces require different types of paint, and concrete exterior steps will require a paint differing from a wooden deck or stairs, for example.  An ordinary trip to the hardware store will confirm that.  The trial court’s concerns about the paint for the steps being a “gloss” (T21), were also misplaced because the Defendants’ use of the wrong paint created an issue of fact if it made the steps “sleeker” than before, an easily understandable issue.  At the least, these concerns would have been easily assuaged if the parties were instructed that the name of the paint would not be disclosed to the jury, but just that the Defendants used the wrong paint without the “walking finish” that had been recommended.  The [...] try to pin alleged inconsistencies in [...]’s deposition testimony about frequency of precipitation or him having any problems navigating the steps after they had been painted, to argue that he never found the steps more slippery prior to Jan. 5, 2022.
[brief] ”  Defendant responded that it was an accident, “[b]ut I did it out my window like, to scare them.  I didn’t know it was going to hit. ”  He further tried to justify his actions.  (7T:163-23 to 166-13).  When he failed to convince her of his version of events, he changed gears and begged [...] to answer his future calls and asked her if the Prosecutor had called her.  He stated again that he loved her and that he would tell her the truth tomorrow when he called around the same time.  The call ended.
[brief] N.J.S.A. §39:4-98 sets forth the correct conduct of a driver as to speed, "The driver of every vehicle shall ... drive at an appropriate reduced speed when approaching and crossing an intersection ..."  In essence, the defendant took the left turn too wide.  Whether it was that from excessive speed under the circumstances or the lack of control of his vehicle or just plain lack of observation which caused the accident, it is for a Jury to determine whether this conduct was negligent and whether his conduct should then be compared with that of the plaintiff.  The plaintiff has ample evidence of examples of the defendant’s negligence, each of which would require submission to Jury.
[brief] The litigation to that point did not address what [...] could do with the easement if found to exist.  Our case law requires consideration of the contemplation of the parties at the time the easement was initially created, the negative effect of any paving or other improvements on the servient estate, and other factors.  See Hyland, supra, 44 N.J. Super. at 187-92.  Accordingly, while the summary judgment order was still interlocutory, to avoid any entire controversy doctrine concerns, the undersigned wrote to [...] requesting that she schedule further proceedings to address “what the plaintiff is permitted to do on that easement.
[brief] We have made a somewhat extended reference to these statutes to show that the guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of the government, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained and a search of a ship, motor boat, wagon, or automobile for contraband goods, where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.  Id. at 153.  And because “the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient in themselves to warrant a man of reasonable caution in the belief that intoxicating liquor was being transported in the automobile which they stopped and searched,” the Supreme Court found the officers had probable cause to search the vehicle without a warrant.  Id. at 162.  Using the foundation laid by Carroll, the Supreme Court continued for decades to uphold the legal principle that automobile searches are permissible when grounded in probable cause.  See Husty v. United States, 282 U.S. 694, 700, (1931) (upholding warrantless search of defendant’s vehicle where officer knew defendant to be a “bootlegger,” having arrested him for it in years past, and, on day of defendant’s arrest, had “received information over the telephone that Husty had two loads of liquor in automobiles of a particular make and description, parked in particular places on named streets. ”)  In *Chambers v. Maroney*, 399 U.S. 42, 50–51 (1970), the Court acknowledged *Carroll’s* reasoning that a search warrant is “unnecessary where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car's contents may never be found again if a warrant must be obtained.
[brief] Construction and Transfer of Lot 4.01  In 2013, [...] deeded Lot 4.01 to [...] (an affiliate of [...]), which proceeded to construct a multifamily apartment building on such lot.  (Da61 at ¶ 15; Da235.)  As part of the municipal approvals for such construction, the Borough required [...] to construct certain curbing improvements in connection with the Roads, and post a performance guarantee in connection with same.  (Da61 at ¶ 15.)  [...] proceeded to complete such improvements, and on May 11, 2015, the Borough Council issued Resolution R-166-15 approving the release of [...]’s performance guarantee.  (Da61 at ¶ 15; Da244-Da252.)  Lot 4.01, which has a street address of [...], is still owned by [...], and is still in use as a mixed-use building with 51 residential apartments and 15,000 square feet of ground floor retail.  (Da61 at ¶ 16.)  E.  Approvals to Build on Lot 2.01
[brief] (Da52 at ¶3, Da56).  The Court also stated that the Trustee’s request for rent payments and counsel fees would be addressed at a plenary hearing.  (Da57).  (7T83:5-13; Da52).  The Defendants finally left on November 28, 2022, only three days before the date in the Order.  They took everything of value belonging to the Decedent and left the house dirty, with rat droppings; the Trustee spent three days cleaning it, without charge to the Trust.  (7T84:3-21).  After they vacated, the Defendants only grew even more litigious.  They filed five motions with the trial court in the first eight months of 2023 alone: (a) Motion to file a supplemental complaint denied on May 10, 2023 (60a); (b) Motion to file a second supplemental complaint, denied on May 10, 2023 (Da62); (c) Motion for reconsideration of the two May 10, 2023 Orders, denied on June 19, 2023 (Da69); (d) Motion to determine what they asserted was the “controlling law” for the upcoming plenary hearing, denied on October 4, 2023 (Da81), and (e) motion alleging their due process rights had been violated, also denied on October 4, 2023.
[brief] There is another statement in P-5 which clarifies what the “intent was to convey. ”  It states, “also together with property now owned by the party of the first part as shown on the map. ”  Thus, they limit it to the property that was shown on the map and no other property.  What is not shown on the map, in his opinion, is not conveyed (7T84:1-6).  He also points out that in the Deed from [...] to [...] property, that is the only Deed that identifies a piece of property that is underwater.  He checked the title work and found that [...] did not own any other piece of property that was underwater other than this piece, there was not any other property that was underwater (7T85:14).  [...] explains again on rebuttal that there is a major distinction between the term Riparian Grant and the term Riparian Right (7T90:24).
[brief] Q.  Did they know you would have—did you feel like based on your prior incidents that they knew you would have an emotional response to it?  A.  Yes, they did.  And I feel that they triggered—tried to trigger and target me, you know, not only for my religion, but for my depression and anxiety.  (4T:148:2-7).  More egregious still, Plaintiff’s trial testimony attempted to tie her factual allegation that the taking away of the Municipal Alliance Grant stipend was because of her alleged anxiety disability:
[brief] N.J.R.E. 101(a)(5) .........................................................................................  18 N.J.R.E. 401 ..................................................................................................38, 47, 49 N.J.R.E. 403 ..................................................................................................38, 49 N.J.R.E. 201 ..................................................................................................43, 44, 46  **Other**  Model Civil Jury Charge 5.20B(2)(b) .. 2, 12, 19, 20, 23, 24, 25, 26, 27, 31, 32, 33, 34, 39, 53, 54  Model Civil Jury Charge 5.20F .................................................................13, 20, 23  INDEX TO DEFENDANTS’/APPELLANTS’ APPENDIX
[brief] [...] adopted its own waiver standard, as it is permitted to do under the MLUL.  Rumson Estates, Inc. v. Mayor & Council of Borough of Fair Haven, 177 N.J. 338, 344 (2003) ("the MLUL does not preclude a municipality from adopting a zoning ordinance that defines terms differently from the definitions in the MLUL.").  At Ia218 is [...] Ord. § 18-601:  The rules, regulations and standards set forth in this section shall be considered the minimum requirements for the protection of the public health, safety and welfare of the citizens of the Township.  However, if the applicant can clearly demonstrate that, because peculiar conditions pertaining to the subject parcel, the literal enforcement of this section is impracticable or will exact undue hardship, the Planning Board may permit such exemption(s) and waiver(s) as may be reasonable within the general purpose and intent of the rules, regulations and standards established by this section.  (Emphasis added).  The question then becomes: what are the "peculiar conditions pertaining to the subject parcel" which render the Applicant unable to comply?
[brief] Such pleading makes clear that any duty [...] had arose under the PSA.  Fourth, while the “determination of whether a duty exists is generally considered a matter of law to be decided by the court,” in determining whether a duty will be imposed, the “foreseeability of harm is a significant consideration,” and it is only where the “foreseeability of an [injury] is established” that “considerations of fairness and policy [will] then govern whether the imposition of a duty is warranted.
[brief] Thus, as a non-party, Defendant could not have breached these agreements as a matter of law.  D.R. Horton Inc. - N.J. v. Dynastar Dev., 2005 N.J. Super. Unpub. LEXIS 842, *45 (Superior Court of New Jersey, Law Div., Mercer County, August 10, 2005) (“It should be a non-controversial principle that nonparties to contracts cannot be held responsible for a breach. ”) (citing FDIC Deposit Ins. Corp. v. Bathgate, 27 F.3d 850, 876 (3d Cir. 1994) (stating that under New Jersey law, non-parties to a contract cannot be held liable for a breach of a contractual duty)).
[brief] | Judgments, Orders, Rulings | Page(s) | |------------------------------------------------------------------------------------------|---------| | July 31, 2024, Order Granting Order to Show Cause | 0001a | | September 30, 2024, Order Lifting Temporary Restraints and Denying Preliminary Restraints and Dismissing Claims | 0007a | | September 30, 2024, Decision Denying Restraints and Dismissing Claims | 0009a | | October 2, 2024, Order Denying Stay Pending Appeal | 0019a | | Disposition on Application for Permission to File  Emergent Motion  Dated October 3, 2024 | 1572a | | October 8, 2024  Order on Emergent Motion | 1577a | # Table of Authorities  ## Cases | Case | Page(s) | |----------------------------------------------------------------------|---------| | Ernest Bock & Sons-Dobco Pennsauken Joint Venture v. Twp. of Pennsauken, 477 N.J. Super. 254 (App. Div. 2023) | 8, 9 | | In re Meadowlands Communications Systems, Inc., 175 N.J. Super. 53 (App.Div.1980) | 8 | | Kramer v. Sea Girt Bd. of Adj., 45 N.J. 268 (1965) | 8 | | Meadowbrook Carting Co. v.
[brief] 3  The State never presented testimony from the car’s owner or any proof of the monetary amount of any damage to the car (2T.14) which appear to be requirements of the statute.  4  [...], father of the car’s owner, mentioned that the paint marks left on the damaged vehicle may not have matched the color of the car in [...]’s driveway and thought initially that someone else caused the damage.  (2T.6; 2T.13)  5
[brief] Pa1801.  [...] indicated that the part-time project manager or a principal of the Firm shall be a professional engineer licensed in the state of New Jersey.  The project manager was expected only to attend pre-construction meetings and orientation and be available.  Ibid.  The professional engineer was not required to be on site or even involved.  The project manager had to be available.  Ibid.  Per the OPS, the resident engineer ([...]) was in charge of maintaining the daily records of the numbers and classifications of workers employed by the contractors using the Authority’s CapEx management system, preparing daily reports if all construction and engineering field work, reviewing and approving the Contractor’s progress scheduled, maintaining daily records of the type and size of all of all equipment used on all construction operations, reviewing protection procedures, reviewing and approving lane closure request forms prepared by the contractor prior to submitting forms for approval by [...], ensuring that the contractor complied with all local, state and federal laws, ordinances, regulations, and orders, as provided by the contract.
[brief] Further, [...]’s presumption that [...]’s prior receipt of January 2021 Agreement or status as a lawyer conveyed some supplemental knowledge is entirely speculative.  [...] cannot seriously attempt to glean anything at all from [...]’s failure to “deny agreeing to” the January 2021 Agreement in her certification, which was “expressly supersede[d]” by the December 2021 Terms and Conditions, and not even mentioned by [...] until its reply brief.  (Da80).  Hamilton v. [...] Technologies, Inc., which concerned whether the self-represented plaintiff could be required to arbitrate as a third-party beneficiary, is inapposite.
[brief] In fact, [...] and [...] were in communication throughout the relevant period, but willfully failed and refused to keep Plaintiff apprised of the status of the transaction, including the date of the scheduled closing and the details of the transaction.  Indeed, in early October 2022 (after [...] had closed with the Fee Owner), [...] admitted to Plaintiff that she had intentionally failed to inform Plaintiff of [...]’s plan to acquire the Real Property.  [...] advised Plaintiff via email that “I was instructed [by [...]] that I was not permitted to share details of the transaction at all with [Plaintiff] et al.  Uncomfortable situation to be put in. ” (Pa12, Complaint ¶¶ 47-48).  In other words, [...] knew she was helping [...] cut Plaintiff out of the deal, and [...] affirmatively instructed her to deceive Plaintiff.  Plaintiff only learned of the closing on or about October 20, 2022, from a press release issued by a brokerage firm.  (Pa13, Complaint ¶ 52).  Plaintiff sustained millions of dollars of damages as a result of Defendants’ acts and omissions.
[brief] (2T34-35).  Plaintiff testified that Defendant sought a divorce only to pursue a claim under the Violence Against Women Act (VAWA) -- for immigration benefits.  [...] insisted that his desire for an annulment was driven by cultural considerations and the societal impact of being a divorced man.  Defendant’s motivations were solely to secure immigration benefits, not to enter into a marital partnership with Plaintiff.  (2T39-41).