ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] ”  Defendant seems to forget the case at bar is not one in which the victim was the only eyewitness, despite his frustration that [...] positively identified him as the shooter.  (Da40; 3:44:20 to 3:44:41.)  Moreover, the record reflects that the trial court did in fact instruct the jury—extensively—on the risks associated with memory and misidentification.  Specifically, the trial court instructed for over 8 pages of the trial transcript following the model jury charge on identifications, (9T:129-137); crucially touching on each of the requested items complained of in defendant’s brief, including the “impacts of stress,” weapons focus, and the fact that [t]he ultimate question of reliability of the out of court identification is for [the jury] to decide, and to decide whether the identification testimony is sufficiently reliable evidence to conclude that this defendant is the person who committed the offenses charged, you should evaluate the testimony of the witness in light of the factors focusing on credibility that I’ve already explained.  [(9T126:19-25). ]  Defendant is thus simply arguing that the jury should have been charged with the same jury-instruction twice—as to identification.  (Db30).  It is at best mere speculation, and thus defendant ignores the fact that failure to repeat the same identification jury charge undoubtedly did not lead “the jury to the result it otherwise might not have reached. ”3  Benedetto, 120 N.J. at 261 (quoting Macon, 57 N.J. at 335).  3  Additionally, it is well-established that there is a presumption juries will follow the “given instructions. ”  State v. Loftin, 146 N.J. 295, 390 (1996).  Thus, defendant’s argument in the alternative on this point must be rejected in its entirety by this Court.
[brief] Pa851.  “I know that they're required to comply with all federal, state and local rules and regulations, OSHA, ANSI, and there are several others. ”  Ibid.  [...]’s Site Specific Safety Program and Procedures Manual Section 2.0 (2.4)  Multiemployer Worksite acknowledged:  “Management understands the safety issues that are generated in a multi-employer worksite environment.  When performing work as a Construction Manager on a multi-employer work site, the Project Supervisor will enforce the compliance of all safety regulations in a manner that promotes overall workplace safety. ”  Pa889.  [...] testified that he and [...], [...]’s foreman, superintendent(s) and [...] were all responsible for making sure that the standards of the [...] and [...] HASPs were being complied with to the fullest extent.
[brief] The Appellant Has Substantially Complied with Discovery Proceedings Warranting Adjudication of Her Claims on the Merits  It is clear that a technical violation of the procedural rules occurred in the trial court, however, courts are reluctant to bar claims from being adjudicated on the merits.  One of the ways courts avoid these harsh results is applying the doctrine of substantial compliance to otherwise good faith efforts to comply with the rules.  New Jersey  Courts invoke the doctrine of substantial compliance to “avoid technical defeats of valid claims. ”  Zamel v. Port of New York Authority, 56 N.J. 1, 6, 264 A.2d 201 (1970).  In light of the doctrine of substantial compliance, which requires reasonable effectuation of the statute's purpose, as in Zamel, and the existing practices in this general area that attempt to reconcile convenience and truth under Court Rule 1:4-4(b), there is no reason to infer that the Legislature intended that the statute be applied literally and strictly, rather than in a manner that would assure substantial compliance with its essential provisions.  *Alan J. Cornblatt, P.A. v. Barow*, 153 N.J. 218, 708 A.2d 401 (1998).  Application of the equitable doctrine of substantial compliance and the proper limits as to how far a court may go in finding flexibility in the words of the affidavit of merit statute are set forth in Cornblatt’s five-part test, which indicate the following considerations.  Similar considerations can be applied to the present matter: (1) the lack of prejudice to the defending party; (2) a series of steps taken to comply with the statute involved; (3) a general compliance with the purpose of the statute; (4) a reasonable notice of petitioner's claim; and (5) a reasonable explanation why there was not a strict compliance with the statute.  *Mayfield v. Community Medical Associates, P.A.*, 335 N.J. Super. 198 (2000) (citing *Cornblatt v. Barow*, 153 N.J. at 239, 708 A.2d 401 (1998)).
[brief] THE TRIAL COURT DETERMINATION ON THE ISSUE OF ADVERSE POSSESSION FAILED TO APPLY THE FACTORS TO BE EMPLOYED IN DECIDING ADVERSE POSSESSION TO THE EVIDENCE AND OUR STATUTES, N.J.S.A.2A:14-30 AND N.J.S.A. 2A:14-31 AND BECAUSE OF THIS THE TRIAL COURT ERRED IN DENYING SUMMARY  JUDGMENT TO FIRST ZION HOPE  MISSIONARY BAPTIST CHURCH Da203, 1T  The criteria which must be met to satisfy the statute of Adverse Possession follows:  The action of the land possessor must be hostile which means that the land is held against the right of the true owner and without permission; there is actual exercising of control over the property; the property is in the exclusive possession of the person trespassing on the land; the use of the land is open and notorious which means using the property as the real owner would, without hiding his or her occupancy; and continuous use for the statutory time period which is 30 years in New Jersey for most types of property per N.J.S.A. 2A:14-6.  In order to acquire title via adverse possession the acquisition must be adverse or hostile, exclusive, continuous, uninterrupted, visible and notorious.  Leach v. Anderl, 218 N.J. Super. 18, 28 (App. Div. 5/28/1987).  See also Foulke v. Bond, 41 N.J.L. 527, 545 (E.A. 1879).  Possession of property is considered to be adverse if “an ordinarily prudent person would be put on notice that the land is in actual possession of another… so that the claimant’s use is “under a claim of right pursued with intent to claim as against the true owner in such circumstances of notoriety that the owner will be aware of the fact and thus alerted to resist the acquisition of the right by the claimant before the period of adverse possession has elapsed. ”  Patton supra at 186-187 quoting Predham v. Holfester, supra at 424.  The issue of adverse possession was addressed in Plaza v. Flak, 7 N.J. 215 (Decided May 28, 1951).
[brief] (Pa 138-139, Par. 22).  [...] consulted an attorney after the denial of his claim, but had no documents concerning the opening of his new accounts since none were provided.  (Pa 139, Par. 23).  [...] went to his local branch and asked if they had any documents concerning the opening of the accounts.  (Pa 139, Par. 24).  The only document [...] was given was a document entitled Business Account Application dated 5/18/22.
[brief] Nor was it likely to lead to an irreparable misidentification.  Defendant's claims to the contrary are rejected.  We are also satisfied that the judge's decision to allow [...]'s in-court identification was a proper exercise of the judge's discretion.  *Walls*, *supra*, 85 N.J. at 221, 426 A.2d 50.  Similar to our Supreme Court's reasoning in *Clausell*, where there was no out-of-court identification but the in-court identification was permitted nineteen months after the crime, [...]'s in-court identification ten months later was properly admitted.  The duration of time between the crime and the identification is not the critical issue.  What is most important is the witness' opportunity to view the defendant and the defense's opportunity to cross-examine the witness.  *Clausell*, *supra*, 121 N.J. at 327-28, 580 A.2d 221.  [...]'s in-court identification was not akin to a one-man “show-up.
[brief] ”  McLean, 205 N.J. at 460.  Although based on what a witness perceived, it is not limited simply to what was observed, but includes an opinion.  See State v. LaBrutto, 114 N.J. 187, 191 (1989) (An officer’s lay opinion about the point of impact was permissible because it was rationally based on what he observed at the scene of the accident and it was helpful to the jury’s full comprehension of the facts in question.).  The second requirement of N.J.R.E. 701 is that lay-witness opinion testimony be “limited to testimony that will assist the trier of fact either by helping to explain the witness’s testimony or by shedding light on the determination of a disputed factual issue. ”  McLean, 205 N.J. at 458.  The seminal case addressing these concepts is State v. McLean, 205 N.J. 438, 456 (2011).
[directive] Any Child.. of a Abuse or Exploitation, Sexual Filming, Photographing, (iii) proscribed involving the (b)(5) or (b)(4), 2C:24-4(b)(3), N.J.S.A. under charged child. of a abuse or exploitation sexual or Offense Another for' Release on While Committed Was Offense Present The 4.5.5 Supervision.  Post-Conviction of FoNm Any on While agency enforcement law 4.5.2, a subsection to pursuant provided otherwise as Except defendant the while committed was offense present if the acomplaint-warrant for apply shall a has defendant (i.e., offense persons disorderly or crime indictable other any for release on was or complaint-warrant by charged been had offense previous that whether charge), pending program supervision intensive probation, special probation, on while or complaint-summons, on or (PSL), for life supervision parole (CSL), life for supervision community parole, (ISP), 2C:43- N.J.S.A. by required as guilty pleaded had defendant the where (PTI) intervention pretrial appeal, or sentencing pending release on defendant was if of 98), c. 2015, P.L. (see 12(g)(3) Section with accordance in consulted general attorney deputy or prosecutor assistant an unless who 3.3.2 subsection pursuant to designated officer police supervisory a or Directive, of this 3.2 this of 4 Section under presumptions overcome
[brief] Nevertheless, the trial court disregarded this evidence in determining that Defendants were obligated only to submit the RIR.  Further, the trial court’s determination that Defendants’ interpretation of Article 11 of the PSA “is more plausible and in line with the language contained within the four corners of the contract” is belied by the PSA itself.  (Pa0228.)  There is no dispute that Defendants were required to finalize and submit a RIR to the NJDEP prior to closing, yet that obligation is not stated in the PSA.  (2T154:21 to  In fact, the term “RIR” does not appear anywhere in the PSA.  (2T95:12-15; see generally Pa0246-91.)  However, this obligation did not arise from thin air; rather, the Defendants’ obligation to submit the RIR is merely a statutory and known prerequisite toward satisfying their express obligation under the PSA to obtain a site-wide RAO.  (2T154:21 to 155:6; 4T15:19-23; 8T38:3-21; Pa2371-74.)  In determining that the PSA required only that Defendants submit the RIR, the trial court effectively rewrote the PSA for the Defendants’ benefit.  See Schnakenberg, 37 N.J. Super. at 155.  To the extent that any extrinsic evidence suggests that the parties’ intent was for Defendants to be responsible only for submitting the RIR, the term “RIR” does not appear anywhere in the PSA, and “an intention wholly unexpressed in the writing . . . is irrelevant. ”  Schwimmer, 12 N.J. at 301-02.  Moreover, contrary to the firmly established principles of contract interpretation, the trial court relied on extrinsic evidence as to the parties’ intent to alter the terms of the PSA and manufacture an obligation that does not appear anywhere in the parties’ written agreement.  See Schwimmer, 12 N.J. at 301-02.
[brief] On March 3, 2023, the trial judge ordered plaintiff to retain an attorney by April 3, 2023.  Subsequently, on March 10, 2023, plaintiff filed a motion to demand documents that had been concealed by the defendants.  On March 31, 2023, after a hearing, the court rejected plaintiff’s motion and further ordered plaintiff to retain counsel by April 17, 2023.  On May 12, 2023, the trial court dismissed the case without prejudice for the second time because plaintiff was unable to comply with the prior order issued on March 31, 2023.
[brief] | | | Dep’t. of the Pub. Advocate v. N.J. Bd. of Pub. Util., | 15 | | 206 N.J. Super. 523 (App. Div. 1985) | | | Eichenbaum & Stylianou, LLC v. Osaedebiri, | 4 | | 2013 WL 4104105 (N.J. Super. Ct. App. Div. Aug. 15, 2013) | | | Kampf v. Franklin Life Ins. Co., | 10 | | 33 N.J. 36 (1960) | | | Ramada Worldwide Inc. v. 4018 W. Vine St., LLLP, | 14 | | 2022 WL 263436 (D.N.J. Jan. 28, 2022) | | | Savage v. Twp. of Neptune, | 8 | | 472 N.J. Super. 291 (App. Div. 2022), rev’d on other grounds, | | | 2024 WL 2002418 (N.J. May 7, 2024) | | | Temple v. Clinton Tr. Co., | 10 | | 1 N.J. 219 (1948) | | | Verbal v. Tiva Healthcare, Inc., | 13 | | 2021 WL 9527858 (S.D. Fla. Aug. 19, 2021) | | [...]\(^1\) submits this reply brief in further support of its appeal of the trial court’s Order denying [...]’s motion to enforce the Settlement Agreement.
[directive] 2C:21-1  Statute  Option permissible permissible permissible permissible permissible permissible permissible permissible permissible  Bail 11  JUDGE’S issue.  Cash 10% 10% 10% 10% 10% 10% 10% 10% 10% 10% should COURT and 3:26-2 summons $75,000 $75,000 $20,000 $20,000 $20,000 $2,500 $2,500 $2,500 $1,000 bail
[brief] Even if plaintiff’s 6/22 motion to revisit the portion of the Judgment dissolving [...] (Da54) were considered a Motion for Reconsideration under R.2:4-3(c) allowing for the tolling of time, it would not help plaintiff here.  As the Trial Court recognized (Pa90), this 6/22 motion itself was filed out of time, having been filed on June 22, 2023, 45 days after the Judgment.  A motion for reconsideration must be filed within 20 days of the Judgment.  R. 4:49-2.  Only a timely Reconsideration Motion tolls the time for appeal.  Further, while the Order on this 6/22 motion was entered on August 30, 2023, less than 45 days from the date plaintiff filed the Notice of Appeal, the appeal of the August 30, 2023 Order as well must be rejected since the underlying 6/22 motion was clearly filed out of time.  \(^{10}\)  For good cause, the period may be extended, only upon motion, for a maximum of 30 days, if the notice of appeal is filed within those 30 days.  R. 2:4-4(a).  Here, no such motion was made.  Finally, the appeal of the 6/26  Order denying the original 5/22 motion for reconsideration is also not timely, as plaintiff’s notice of appeal was not filed until September 21, 2023, 87 days later, far beyond plaintiff’s 45 days for appeal.  Thus, plaintiff’s entire appeal should be dismissed as clearly untimely. \footnote{As the Trial Court further noted plaintiff’s other purported post-judgment motions for discovery and equitable relief were clearly baseless and untimely, having been filed after a Final Judgment (Pa81-82,85-86), and thus do not provide a basis to extend any of these deadlines.}
[brief] [...] charged [...] with Second Degree Kidnapping, contrary to the provisions of N.J.S.A. 2C:13-la (Counts One and Thirteen); Second and Third Degree Receiving Stolen Property, contrary to the provisions of N.J.S.A. 2C:20-7 (Counts Two and Three); Second Degree Burglary, contrary to the provisions of N.J.S.A. 2C:18-2 (Counts Four and Twelve); First Degree Robbery, contrary to the provisions of N.J.S.A. 2C:15-1 (Counts Five, Ten and Eleven); Second Degree Aggravated Assault, contrary to the provisions of N.J.S.A. 2C:12-lb(l) (Count Six); Second Degree Possession of a Firearm for an Unlawful Purpose, contrary to the provisions of N.J.S.A. 2C:39-4a (Counts Seven and Fifteen); Murder, contrary to the provisions of N.J.S.A. 2C:11-3a(l) and/or (2) (Count Eight); Felony Murder, contrary to the provisions of N.J.S.A. 2C:11-3a(3) (Count Nine); Third Degree Theft, contrary to the provisions of N.J.S.A. 2C:20-3 (Count Fourteen); Second Degree Conspiracy, contrary to the provisions of N.J.S.A. 2C:5-2 and 2C:15-1 (Count Sixteen); and Third Degree Theft of a Credit Card, contrary to the provisions of N.J.S.A. 2C:21-6c (Count Seventeen).¹ (Da001).
[brief] Beyond that procedural deficiency, [...] did not find at any point in the proceedings below that [...] or her lawyer engaged in frivolous behavior in pursuing the motion for relief from the default judgment entered against her.  Her appeal before this Court shows this is not the case.  With regard to [...]’s demand for attorney’s fees, [...] again cited the correct governing law and pertinent provisions of the divorce agreements upon which respondent relied, then applied the law to this case (Pa7-11).  [...] ruled that neither paragraph 27 of the PSA nor New Jersey law warranted awarding counsel fees to [...] because, “The court finds that both parties were granted some form of enforcement during this litigation.  Plaintiff was granted enforcement of the FJD which the court finds was a substantial issue in this litigation. ”  [...] noted, The court found defendant to not be credible concerning both her procedural and substantive unconscionability arguments, failed to carry her burden and failed to file her motion in a reasonable period of time.  The court granted defendant's request to void the POAs which were general durable powers of attorney and limited plaintiff's use of such to the Pennsylvania malpractice matter.  The court also granted defendant relief concerning a $1SK+ reimbursement from plaintiff which she was requesting as part of her original cross motion for the Bank of America credit line.
[brief] [...] then took the stand for the defense.  [...]’s testimony was less than convincing and his testimony was contradictory and unconvincing, and he did not dispute plaintiff’s testimony on several of the projects.  On cross-examination, [...] was belligerent and disrespectful.  Although admitting that he had no proof and had provided no documents concerning money owed, 1T66:17, structural issues, 1T67:9, squatters, 1T67:12, theft, 1T67:18, or even work performed, 1T69:20, when asked about his evasive interrogatory answers he responded with “If that’s what it says in front of you. ”  1T69:15.  When asked if he always told the truth, the trial judge questioned counsel whether there was a criminal conviction at play and was answered in the affirmative.  1T70:13-16.  The witness, when asked about it, responded with “If that’s what is says in your paper. ”  1T71:1.  Challenged about the laundered funds, he responded, not with answers but with challenges - “how do you know that” and “how do you know that it wasn’t lawful proceeds from my jewelry business? ”  1T75:16-20.  As counsel tried to elicit more information about [...]’s criminal past and prove the prior false statements, the court halted that line of questioning.
[brief] On April 17, 2023, Plaintiff served a subpoena for [...]’s wife, Donna [...], to appear and provide testimony (Pa95-96).  Plaintiff thereafter moved to enforce the subpoena after Donna [...]’s failure to comply (Pa 91-97).  Prior counsel for Defendant entered an appearance and filed a cross-motion to quash the subpoena (Pa98-108).  Prior counsel for Defendant certified 2.  I was retained by the defendants and Donna [...] to represent them in connection with Plaintiff’s efforts to conduct post-judgment discovery in enforcement of a judgment against the Defendants.
[brief] "[W]hen a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification."  State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.) (citing R. 1:6-6), certif. denied, 162 N.J. 199 (1999).  "In that context, [an appellate court] consider[s] petitioner's contentions indulgently and view[s] the facts asserted by him in the light most favorable to him."
[brief] The court found the State was likely to prevail in arguing that the Amended Policy violated the LAD’s prohibition on disparate treatment: the new policy, by its terms, adopted a different notification policy for transgender, gender non-conforming, and non-binary students than for their cisgender peers.  (Da126-28).  Although Appellants had claimed that this policy would also apply to cisgender students who request the same change, the court noted: “who but transgender, gender non-conforming, and non-binary students would request public and social accommodations or express a change in gender identity and expression?”  Ibid.  For similar reasons, the court found that the Amended Policy would likely have a disparate impact: transgender, gender non-conforming, and non-binary students would experience “far greater incidence of parental disclosure of their gender identity or expression, and, with it, a far greater risk of harm from this involuntary disclosure.
[brief] “An employer’s vicarious liability for the conduct of a supervisor occurs if the employer negligently or recklessly failed to have an explicit policy that bans…harassment and that provides an effective procedure for the prompt investigation and remediation for such claims. ”  Dunkley v. S. Coraluzzo Petroleum Transporters, 437 N.J.Super. 366, 379 (App.Div.2014); see Lehmann, supra, 132 N.J. at 621 (to impute liability to an employer for the acts of its employees, “a plaintiff may show that an employer was negligent by its failure to have in place, well-publicized and enforced anti-harassment policies, effective formal and informal complaint mechanism structures, training, and/or monitoring mechanisms”); see also Aguas v. State, 220 N.J. 494 (2015) (finding that under New Jersey law, an employer has a duty to take remedial measures to stop and prevent harassment and providing employer’s the ability to assert an affirmative defense to hostile work environment under the LAD if they can prove: 1) “exercised reasonable care to prevent and correct promptly any [] harassing behavior,” and 2) “the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.
[brief] A: Yes.  Q: And that Grant grants him Riparian lands, Riparian subaqueous lands from whatever the mean high water line was in 1879?  A: Yes.  Q: So, let’s just talk about that for a second.  The mean high water line essentially is what I will call high tide if it is a tidally flowed piece of water, correct?  A:  Well, they use the mean of tides, and I can’t, I’m not a scientist, I can’t tell you how many different tides they are going to utilize.  Whatever formulas they do, they determine a mean and that is the line, it's, I hate to use it in terms of Riparian, but it's fluid because it can change over time.  Q: Right, and that is what I was going to ask you.  So, for example, I know there is a term you used in your report called accretion which my understanding is that means that whether it is sand or other things the land grows by virtue of accretion and therefore the mean high water line moves further out, correct?  A: Yes.  Q: And likewise, there is a concept called erosion where the land shrinks from where it had been, and the mean high water line would come in from where it had been.  A: Correct.  It would move land - [...] confirms that in 1879 when [...] received the Tidelands Grant from the State he owned the uplands and the Riparian Grant, so if the mean high water line was changing it did not particularly matter because he owned both sides (1T99:1).