ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] In *Malanga v. Twp of W. Orange*, 253 N.J. 291 (2023), the Court recognized that municipalities are often faced with circumstances that would benefit from the awesome power granted under the LRHL.  However, the Court distinguished between the desire, and the right, to use the powers vested under the LRHL, writing “[t]owns faced with situations like the one here have a number of options,” including the power of redevelopment, but only if the property can “satisfy the specific standards” under the LRHL.  *Id.* at 323.  Here, there was a well-planned, disciplined, and carefully effectuated analysis, study and investigation that “satisf[ied] the specific standards under the LRHL” to allow for a comprehensive redevelopment of many properties within [...]’s downtown.  Indeed, the record is replete with evidence that the Town ensured that the Redevelopment Plan was consistent with the Master Plan.  Pursuant to N.J.S.A. 40:55D-28(a), a planning board is charged with creating a master plan.  Here, the Mayor commented that there was “no group more intimately familiar with the Master Plan than the Planning Board. ”  (Pa639 at 90:11-91:6.)  The Planning Board’s determination that the Redevelopment Plan was indeed, consistent with the Master Plan is forceful evidence of the Town’s compliance with its statutory obligations under the LRHL.  (Pa645 at 102:3-7.)  The temerity with which Appellants are playing fast and loose with the record and the law is startling.  It is clear that the basis of Appellants’ objection to the Redevelopment Plan is that they simply do not like it.  See Pb8 (“This proposed oversized redevelopment will change the character and essential idyllic nature of [...] forever. ”)  Since that alone cannot be a basis for overturning the Redevelopment Plan, Appellants have concocted a toxic stew of alternate timelines of blight designation challenges, kitchen-sink statutory citations that are wholly irrelevant to the review of a redevelopment plan, and mix-and-match case law in a bid to obtain victory at any cost.
[brief] “In evaluating motions to dismiss, courts consider ‘allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim. ””  Banco Popular N. Am. v. Gandi, 184 N.J. 161, 183 876 A.2d 253 (2005) (quoting Lum v. Bank of Am., 361 F.3d 217, 222 n.3 (3d Cir.), cert. denied, 534 U.S. 918, 125 S.Ct. 271, 160 L.Ed.2d 203 (2004)).  “It is the existence of the fundament of a cause of action in those documents that is pivotal; the ability of the plaintiff to prove its allegations is not at issue. ”  Ibid.  [Myska v. New Jersey Mfrs. Ins. Co., 440 N.J. Super. 458, 482 (App. Div.) app. dismissed 224 N.J. 523 (2015) (emphasis added). ]  The Court may consider documents referenced in the Complaint or upon which the allegations of the Complaint are based because “the motion is based upon the content of the pleading in and of itself.  A motion to dismiss ‘may not be denied based on the possibility that discovery may establish the requisite claim; rather, the legal requisites for plaintiff’s claim must be apparent from the complaint itself. ’”  N.J. Sports Productions, Inc. v. Bobby Bostick Promotions, LLC, 405 N.J. Super. 173, 178-179 (Ch. Div. 2007) (emphasis added) (quoting Edward Prudential Prop. & Cas. Co., 357 N.J. Super. 196, 202 (App. Div. 2003)).
[brief] **THE TRIAL COURT ERRED BY CONFIRMING THE AWARD AND ENTERING JUDGMENT BECAUSE THE ARBITRATOR’S EXTRA-CONTRACTUAL FINDINGS CLEARLY AND IRRATIONALLY EXCEED THE POWERS GRANTED TO HIM UNDER THE PTA [DA31-32]**  The Arbitration involved a controversy arising under a single fully integrated agreement—the PTA.  The PTA is the sole source of the parties’ rights and obligations.
[brief] R. 2:10-2.  As noted in Point I, “[e]yewitness misidentification is the leading cause of wrongful convictions across the country,” and without proper guidance, jurors do not have the “inherent ability to evaluate evidence offered by eyewitnesses who honestly believe their testimony is accurate. ”  Henderson, 208 N.J. at 218.  Thus, one of the core protections against wrongful convictions is jury instructions about how to properly assess identifications.
[brief] Further, the Rocky Hill court noted in Willoughby, the fundamental change in the underlying zoning would have a significant impact on residents of an adjoining neighborhood and impact traffic on a major town thoroughfare.  Id. at 400-01.  By contrast, the claims in Rocky Hill advanced by “eight plaintiffs, five who live within 200 feet of the development and three who live within walking distance,”\(^3\) were found to revolve around “their own subjective displeasure with the size, scale and footprints of the units allowed under the ordinance. ”  Id. at 399.  The Rocky Hill court cautioned trial courts to avoid reflexively finding a “public interest” where a few interested parties claim to represent the public, saying:  This case is distinguishable from Concerned Citizens, Willoughby, DeRose and Horsnall.
[directive] You have answered a series of questions about civil trials and civil cases.  Now we would like to learn a little bit about each of you.  Please tell us the type of work you do; whether you have ever done any type of work which is substantially different from what you do now; who else lives in your household and the type of work they do, if any; whether you have any children living elsewhere and the type of work they do; which television shows you watch; any sources from which you learn the news, i.e. the newspapers you read or radio or TV news stations you listen to; if you have a bumper sticker that does not pertain to a political candidate, what does it say?  What you do in your spare time and anything else you feel is important.  (NOTE: This question is intended to be an open-ended question which will allow and encourage the juror to speak in a narrative fashion, rather than answer the question in short phrases.  For that reason, it is suggested that the judge read the question in its entirety, rather than part by part.  If the juror omits a response to one or more sections, the judge should follow up by asking, in effect: “I notice you didn’t mention [specify].  Can you please tell us about that?”).  Standards for Jury Selection Promulgated by Directive #21-06 (December 11, 2006)  Page 23 of 29  STANDARD  JURY VOIR DIRE (AUTO, SLIP & FALL, MEDICAL MALPRACTICE)
[brief] The Law Division properly denied Plaintiff’s ability to reopen the discovery period as a tactic to cure his discovery deficiencies.  As Plaintiff concedes, in the absence of his requested discovery extension, the aforementioned reports are time-barred and not properly part of the record further warranting summary judgment as a matter of law.  Regardless, no amount of additional discovery would cure the fatal defects in the claims Plaintiff asserts against the [...].  **CONCLUSION**
[brief] 4.  By way of example, although Probation’s “accounting” of 3/17/2022 (DA162) failed to include payments made by Appellant for the period 10/1/1998 through to 2/5/1999, and [...] acknowledged Probation did not have records supporting those payments and withdrew its claim of $16,000 in support arrearage as of 2/1999, Probation claimed compliance with the Order of 1/11/2022 (DA76).
[brief] Pursuant to R. 2:6-2(b), please accept this Letter Brief in lieu of a more formal brief in opposition to the Appellant's appeal.  TABLE OF CONTENTS  Page  COUNTER PROCEDURAL HISTORY ...........................................  1 COUNTER STATEMENT OF FACTS .........................................  4 LEGAL ARGUMENT ..............................................................  6 POINT I THE LOWER COURT PROPERLY DENIED THE DEFENDANT’S MOTION TO SUPPRESS .................................................................  6 CONCLUSION .................................................................  13  COUNTER PROCEDURAL HISTORY
[brief] Doing so was procedurally improper.  For that reason, this procedurally flawed decision should be reversed.  By both denying Appellants Motion for Summary Decision and also denying an opportunity for an evidentiary hearing, the Commission has deprived Appellants of due process.  See, e.g. Angus v. Board of Educ. of Borough of Metuchen, 475 N.J. Super. 362, 367 (App.  Div. 2023) (“The standard governing agency determinations for summary decision under N.J.A.C. 1:1-12.5 is substantially the same as that governing motion under Rule 4:46-2 for summary judgment in civil litigation. ”); N.J.C.R. 4:46-2(c) (“The judgment or order sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together \(^3\) Appellants specifically stated in their Brief in Support of their Motion for Summary Decision that “in the event that this motion is denied or denied in part, [Appellants] request a full hearing as to any and all factual issues that require determination, or that Your Honor determines have not yet been sufficiently factually established. ” (Ca060).  with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to judgment or order as a matter of law. ”) (emphasis added).  Put simply, there was no cross-motion for the Commission to rely on to dispose of this matter at the summary decision stage.
[brief] **The Department’s Rate Review**  The Department’s review of the 2020 Filings tracked traditional steps for rate/form filing and reviews for all carriers.  In accordance with N.J.A. C. 11:4-40.5, “[a] form/rate filing shall be deemed approved upon the expiration of 60 days following submission of the filing to the Commissioner unless the Department approves or disapproves the filing in writing within that 60-day period. ”  *Ibid.*  Based on that procedure, the Department reviewed and disapproved of [...]’s rate filings by letters which were uploaded to SERFF.  (Aa95 to 127).  The Department disapproved both the FBO form request and the rate increase request and provided an opportunity for [...] to justify its rate increase.  *Ibid.*  Among other grounds, the Department requested that [...] provide the actuarial credibility method for all significant assumptions, justification based on ASOP #18, original and current expenses, and profit assumptions.  (Cra141-151).  [...] responded.  [...]’s response triggered the Department’s 30-day review period.  If the Department did not approve or disapprove the resubmission, the form and rate request would be deemed approved.  The Department adhered to this procedure, which is set forth in N.J.A.C. 11:4-40.5(d) and (e), throughout the rate review period.
[brief] 1.  Institution of a criminal action  Relying on the Restatement (Second) of Torts § 654, the trial court found that the written complaint signed by [...] did not constitute the institution of a criminal action for purposes of satisfying that element of a malicious prosecution claim.  While Plaintiffs argue that this is contrary to New Jersey law, New Jersey courts have recognized and followed the Restatement in their analysis of claims for malicious prosecution.  See, e.g., Shoemaker v. Shoemaker, 11 N.J. Super. 471 (App. Div. 1951).  As set forth in the Restatement, a criminal proceeding is instituted when: (a) process is issued for the purpose of bringing the person accused of a criminal offense before an official or tribunal whose function is to determine whether he is guilty of the offense charged, or whether he shall be held for later determination of his guilt or innocence; or (b) without the issuance of process an indictment is returned or an information filed against him; or (c) he is lawfully arrested on a criminal charge.
[brief] "It is likewise well settled that an insurer who has paid a claim based on facts misrepresented to it, or withheld from its knowledge, is entitled to recover the amount paid.")  [...] was also entitled to judgment in its favor as to its Unjust Enrichment claim since Appellant made misrepresentations that resulted in her receiving claim payments she was not otherwise entitled to.  See VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 554, 641 A.2d 519 (1994) (citations omitted).  As such, [...] was entitled to a return of those monies.  By her actions and misrepresentations as detailed above, Appellant also breached the insurance contract’s implied duty of good faith and fair dealing.  Association Group Life, Inc. v. Catholic War Veterans, 61 N.J. 150, 293 A.2d 382 (1972).  See 13 Williston on Contracts § 38:15 (4th ed.2000) (stating that an implied covenant of good faith and fair dealing means that "neither party will do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract").
[brief] Defendant: I understand that.  . . .  I’m not gonna argue with you.  . . .  (Defendant inaudible).  Officer: If you’re gonna give us consent then yeah, we’ll be, you just tell us where everything is, we’re not going to tear your house apart.  Okay?  We’re cool with that? (Defendant inaudible).  Officer: Alright.  So what I’m going to do is . . . [(Da15 3:13:30 to 3:15:40; Da17 to 18).]
[directive] Interjurisdictional Pursuits 10.1  The original pursuing jurisdiction shall provide timely notification of a pursuit in progress to any other jurisdiction into which the pursuit enters.  Notifying another jurisdiction that a pursuit is in progress is not a request to join the pursuit.  The pursuing agency shall advise if assistance is necessary.  Whenever the pursuing officers are unfamiliar with the roadways and terrain of the jurisdiction into which the pursuit has entered, the pursuing agency shall, when possible, seek the assistance of, and be prepared to relinquish the pursuit to, the other agency.
[brief] 2  As used herein, “Ab” shall be referring to Appellant’s Brief, “Aa” shall be referring to Appellant’s Appendix, and “2Ra” shall be referring to Respondent [...]’s Appendix.  Lot 14.01 (the “[...]”).  Aa5; Aa25; Aa63.  An existing residential apartment building constructed by Appellant is located on the [...].  Aa25; Aa64.  B.  The CZM Rules And The Redevelopment Ordinances.
[brief] ” citing Malick vs. Seaview Lincoln Mercury, 398 N.J. Super. 182, 187 (App. Div. 2008).  However, Defendants leave off the following language: “… however, the parties may introduce parol evidence concerning their negotiations and their respective understandings of the agreement, in order to assist the court in construing an ambiguous term …”  Id. 187, citing Driscoll Construction Co. Inc. vs. State, 371 N.J. Super. 304, at 313-314 (App. Div. 2004).  Here there is no question that this was a common commercial transaction where an LLC tenant ([...]) provided guarantees of the three principals, [...], [...] and [...], in order to induce [...] to lease the property to [...].  It would not be commercially reasonable for [...] to entrust a $2 million dollar property to a LLC with absolutely no assets, according to Center 48 Ltd. P’ship, supra at 407, or Shelter System Group Corporation vs. Lanni Builders, Inc., supra, at 376.  See also Benjamin and DLC Services Corp. vs. Garden Operations Corp., supra, where the court found officer of corporation signed individual guarantees on 22 separate leases for bakery equipment used in the production of bagels by the various business entities.  Id at *6.  Moreover, the court found there was nothing ambiguous about the language that appears above the officer’s signatures: “We (I) hereby guarantee the punctual payment of the rental stipulated and the performance of the covenants ...”  Id at *2.  II.
[brief] There is no indication of any well-advertised, reviewed, effective policies and training on excessive force or probable cause, or reasonable cause to effectuate an arrest, or to seize someone’s keys to perform a warrantless search in non-exigent circumstances.  The [...] has clearly acquiesced to this well-settled custom.  Under no condition is a broken jawbone necessary to protect an officers’ safety.  Under no condition is choking a suspect necessary to convince him to turn over a car key.  (Pa022-Pa23).  [...]’s police report specifically states that the plaintiff refused to turn over the keys and became irate and at that moment they attempted to place him in handcuffs.  (Pa023).  This is the clearest display of abuse of authority.  They then proceeded to beat him.  (Pa023).  Thus, it is logical to conclude that there are no widely distributed policies that prevent these acts of violence against members of the public.  The failure to produce proof of existence of these policies which must be reviewed for effectiveness and widely disseminated is fatal to summary judgment relief as stated by the Appellate Division in Upchurch.  Because Edison had no policies in place that could have prevented constitutional deprivations, it is liable to the plaintiff.  Here, the lack of policy that allows the use of excessive force and police brutality is the reason why plaintiff’s civil and constitutional rights were violated by these police officers.  Said lack of policies is the custom for which the municipality may be held liable.  See Upchurch v City of Orange Township (Pa546); See also Holmes v City of Jersey City, 449 N.J. Super 600, 601 (App Div 2020); Ptaszynski v Ehiri Uwaneme, 371 N.J. Super 333, (App Div 2004).  POINT THREE
[brief] TABLE OF CONTENTS  TABLE OF CONTENTS  ..................................................................................................................  i  TABLE OF JUDGMENTS, ORDERS, AND RULINGS ON APPEAL ................ ii  TABLE OF AUTHORITIES ...........................................................................................................  iii  I.  PRELIMINARY STATEMENT .................................................................................................  1  II.  PROCEDURAL HISTORY AND STATEMENT OF FACTS .............................................  3  III.  STANDARD OF REVIEW .................................................................................................  18  IV.  ARGUMENT ..........................................................................................................................  21  A.
[brief] (12T:91-7 to 13).  [...] responded that these were not normal and “not all of the incidents that [...] reported at various times. ”  (12T:91-17 to 16).  The Court interjected and stated, Doctor.  So we are going to try this one more time.  We are on redirect, he didn’t ask you whether there were other incidents.  He asked you about the ones that are on – on this board there.  Please answer the questions that are being asked of you.  I have tried to do this several times with you.  [...] will ask you all the questions, I will guarantee he is going to ask you.  So just answer what is being asked of you, okay?  [12T:91-19 to 92-2].  In contrast, the State’s expert, [...] was allowed to give long narrative answers with no interjection from the Court.
[brief] *Olds v. Donnelly*, 150 N.J. 424, 428 (1997); *Karpovich v. Barbarula* 150 N.J. 473, 476 (1997); *Donohue v. Kuhn*, 150 N.J. 484, 485 (1997).  In reaching its determination in *Olds, supra*, the Court acknowledged the criticism leveled at the entire controversy doctrine and mandatory joinder of parties as well as the sanction of preclusion.  150 N.J. at 444–46.  In its decision, the Court emphasized “that preclusion is a remedy of last resort. ”  *Id.* at 446 (citing *Gelber v. Zito Partnership*, 147 N.J. 561, 565 (1997)).  While recognizing that the purpose of the doctrine is to encourage litigants to bring to the trial court's attention persons who should be joined, not to bar meritorious claims, the Court acknowledged the reality that there exists some attorneys who “have elected to conceal or withhold claims against additional parties. ”  *Olds, supra*, 150 N.J. at 447 (citations omitted).  The *Olds* Court concluded by imparting to the [...] and its [...] the responsibility to examine the exemptions that should apply to mandatory joinder, as well as any amendments that should be made to R. 4:30A.  *Id.* at 449.  It identified the “need for a procedural device, such as a Rule 4:30A, to protect parties, the courts and the public from excessive and costly litigation. ”  *Id.* at 447–48 (citations omitted).  The Court stressed that “mandatory joinder should not be confused with mandatory preclusion. ”  *Id.* at 448.  In considering the sanction to be imposed for failure to give the required notice the Court said, “[i]f a remedy other than preclusion will vindicate the cost or prejudice to other parties and the judicial system, the court should employ such a remedy. ”  *Ibid.* (citation omitted).  Quoting from its decision in *Abtrax Pharmaceuticals, Inc. v. Elkins–Sinn, Inc.*, the Court emphasized, “‘[s]ince dismissal with prejudice is the ultimate sanction, it will normally be ordered only when no lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party, or when the litigant rather than the attorney was at fault. ’”  *Ibid.* (quoting *Abtrax Pharmaceuticals, Inc. v. Elkins–Sinn, Inc.*, 139 N.J. 499, 514 (1995) (quoting *Zaccardi v. Becker*, 88 N.J. 245, 258 (1982) (citations omitted)).  As a result of its decision in *Olds*, the Supreme Court, in September 1998, amended *R.* 4:30A, removing the previous provisions related to non-joinder of parties and limiting its application to non-joinder of claims.
[brief] Q.  [...], now, based on your investigation and following your interview with [...], what did you do next?  A.  I attempted to look for the suspect.  Q.  And did you identify who that suspect was?  A. Yes.  Q.  Who was it?  A. [...].  * * * *  Q.  When you say you looked for [...], did you do anything official as far as looking?  A.  Yes.  I took a few statements from witnesses.  The store owner -- [...]: Objection, Judge.  THE COURT: Overruled.  Q.  Did you eventually file charges against [...]?  A. Yes.  Q.  And that was again after your investigation, after your interview with [...], correct?  A.  Yes.  During his closing argument, the prosecutor twice alluded to [...]'s statement to [...].  (2T70-14; 2T71-24)  He also represented (at 2T77-8 to 2T77-10) that "[...] fled the scene and eventually was not arrested until a month later."  Assuming that [...] is the person shown in the video (Exhibit S-23), the footage shows the individual casually walking to the bodega after the alleged shooting and taking his position behind the register, not running away from Orange Street.  (Da 17)  In addition, the police were not on a month-long manhunt searching for [...] -- the delay between the shooting and the charges was caused by [...] taking statements of the 'witnesses' whose identification of [...] were admitted via Brown's innuendo.  LEGAL ARGUMENT POINT I
[brief] POINT VI:  THE TRIAL COURT DID NOT ERR IN SENTENCING DEFENDANT BECAUSE HIS SENTENCE WAS BASED ON CREDIBLE EVIDENCE ON THE RECORD AND WAS WITHIN THE SENTENCING GUIDELINES.  [Raised Below.] (17T22-14 to 42-14).  Defendant alleges that the trial court failed to consider his “advanced age” and improperly considered his arrest history as part of his sentencing, and therefore his sentence was excessive.  (Db44-Db50).  However, the trial court properly sentenced defendant within the statutory term for first-degree murder after finding that the aggravating factors outweighed the mitigating factors based on competent, credible evidence on the record.  Regardless, even if this Court determines that the trial court improperly relied on factors including defendant’s prior arrests, reversal is not warranted because this factor was not determinative of the court’s sentencing decision.