ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[directive] Calculation of Grand Total of Aggravating/ Mitigating Points  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84  Section 11  Special Application and Enhancement Features  . . . . . .  85-96 11.1  Street Gang Involvement (Special Application and Enhancement Feature A)  . . . . . . . . . . . . . . . . . . . . . .  85-87 11.2  Booby Traps and Fortifications (Special Application and Enhancement Feature B)  . . . . . . . . . . . . . . . . . . . . . . . . .  87  11.3  Violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88  11.3.1  No Early Release Act Offense (Special Application and Enhancement Feature C1)  . . 88 11.3.2  Causing Bodily Injury (Special Application and Enhancement Feature C2)  . . . . . . . . . . .  88-89 11.4  Consecutive Sentence for Offenses Involving Certain Firearms (Special Application and Enhancement Feature D)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  89-92 11.5  Offenses Committed While Under Supervision (Special Application and Enhancement Feature E)  . . . . . . . . .  92-93 Page v 11.6  D.O.R.O. Violations (Special Application and Enhancement Feature F) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  93  11.7  Offenses Occurring On School Property (Special Application and Enhancement Feature G) . . . . . . . . . . . . . . . . . .  93-94 11.8  Distribution to a Juvenile or Pregnant Female (Special Application and Enhancement Feature H) . . . . . . . . . . . . 94 11.9 Offenses Committed in or Around Correctional or Treatment Facilities (Special Application and Enhancement Feature I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 11.10 Anti-Drug Profiteering Penalty (Special Application and Enhancement Feature J) . . . . . . . . . . . . . . . . . . . . . . . . . 96 Section 12 Downward Departure for Trial Proof Issues . . . . . . . . . 97-100 12.1 Authority to Make a Downward Departure Based Upon an Assessment of the Likelihood of Obtaining a Conviction at Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97-99 12.2 Explanation of Reasons for Exercising Prosecutorial Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99-100 12.3 Supervisor Approval Required in Certain Circumstances
[brief] (Pa64 – Pa65)  On or about June 6, 2022, [...] produced the following documentation in response to the May 2, 2022 Order: a Statement of Damages alleging $581,916.40 in total damages, (Pa66); correspondence amending its discovery responses, which comprised approximately two hundred (200) pages of general email exchanges between [...]’s and [...]’s representatives that did not address the issues at hand; and a Certification of Joann [...], [...]’s CFO and General Counsel, swearing under the threat of sanction that all documentation in support of [...]’s purchase of replacement material is contained within the eleven (11) pages of documents Bates Stamped P0078-88.
[brief] This is a great outlook that the judges took because no one can drive perfectly all the time, and neither should they be expected too.  We are everyday drivers.  We are not Nascar drivers.  People cannot be harassed and get temporarily seized for minor unnoticeable movements in this day and age where there are thousands of stimuli all over the place attracting our attention.  State v. Woodruff, 403 N.J. Super. 620, 624 (Law Div. 2008) ("The "articulable reasons" or "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced.  Such observations are those that, in view of [the] officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom.  Legal Argument – Point 5 - Judges errors 1T:23-(5-17), [4T:14-(4-25)- 4T:15-(1-14)], 4T:37-(12-17), 4T:38-(7-15), [5T:8(19-25), 5T:9-(1-4)], 5T:11-(7-15), (4T, 5T), (Da 1a)
[brief] The public at large benefits from a less-restricted approach to who may sue under CEPA as an employee of a business enterprise.  It is unlikely to us that the legislature meant to sanction a restricted approach to CEPA’s reach; Id. at 119.  CEPA defines ‘employee’ as ‘any individual who performs services for and under the control and direction of an employer,’ Id. at 120.  In ascertaining the legislative intent, we conclude that CEPA’s definition of ‘employee’ does not necessarily exclude workers who might be classified at common law as independent contractors and that CEPA's definition does not incorporate all the factors that define the term ‘employee,’ in other contexts; App Div.  Instead, in outlining the parameters of the definition contained in CEPA, we hold that the primary focus is on the ‘employer’s control and direction’ of the worker’s performance of services for the employer and not on (1) the terms of compensation; (2) the extent to which the employer provides benefits to the worker; or (3) whether the worker provides services for a full week or any part of a week; App. Div.
[brief] On January 10, 2023, defendant filed a motion, for Ind. No’s: [...]; [...]; and [...]; in the Law Division to change or reduce his sentence due to prior convictions being vacated.  (Da1-4)  On February 15, 2023, a hearing was conducted by the Honorable [...], J.S.C., wherein the judge denied the motion to change or reduce a sentence pursuant to R. 3:21-10(b)(7) on all indictments.  (Da5-7)  The sentencing Court relied on the convictions when sentencing defendant on Indictment No’s: [...]; [...]; and [...].  (Da10-14)  The trial Court did find that the sentencing Court considered the convictions when sentencing defendant.  (1T8:17-25)  However, the Court determined that the sentence was legal and that on the basis that the sentence was not illegal he was going to deny the defendant’s motion.  (1T18:23 to 19-15)  ---
[brief] Greco v. Smith, 40 N.J. Super. 182 (App. Div. 1956) .................................................. 24 Henry v. Rahway State Prison, 81 N.J. 571 (1980) ...........................................................................  44  In re Application of Howard Sav. Bank, 143 N.J. Super. 1, 9 (App. Div. 1976) .............................................. 23, 25  In re Carroll, 339 N.J. Super. 429 (App. Div.), certif. denied, 170 N.J. 85 (2001) ...... 23, 24  In re Carter, 191 N.J. 474, 484 (2007)  ..................................................................  44  In re Hermann, 192 N.J. 19, 36 (2007) ..................................................................... 44, 46, 47, 48  In re [...], OAL Docket No. [...], 2009 WL 145165 (May 15, 2009)  ........ 45  In re State & Sch. Emps. Health Benefits Comm’ns’ Implementation of Yucht, 233 N.J. 267 (2018)  .........................................................................  23, 24
[brief] The Appellate Court rejected this contention, finding no merit in plaintiff's argument, stating “Our review of the LTTEL reveals no language which repeals any act of the Legislature other than those expressly identified in its legislative history.  Based on our reading of the law's clearly written provisions, we find the LTTEL does not expressly repeal N.J.S.A. 55:14K-37(b). ”  Id. at 3.  Since, under the NJHMFA there was no requirement for the [...] to remit the 5% payment to the county, Appellant, as a county resident (but not a property owner in the [...]), has no stake in the matter rising to the point of establishing standing to sue over its application.
[directive] The Attorney General and the county prosecutor shall institute a record keeping system that fully document the seizure, return, applicable) (if forfeiture, distribution and use of all property subject forfeiture or to proceeds derived from the disposition of said property.  Any record keeping systems used by a county prosecutor maintain forfeiture records shall by to reviewed and approved by the Division of Criminal Justice, Operations Bureau prior to its implementation use.  or in  All county and municipal forfeiture records shall be audited as authorized C. N. for J.S.A. et seq.  A copy of the final audit report each forfeiture 40A5-4 - records audit shall be Lorwarded to the Division of Criminal Justice, 0 Operations Buteau.  The Attorney General reserves right audit the forfeiture records any D: of to the not or law enforcement agency.
[brief] Pereira, 475 N.J. Super. at 396 (quotation omitted).  After reviewing that history in Pereira, this Court observed that in the context of ESI, “[r]elevancy remains the touchstone of permissible discovery. ”  475 N.J. Super. at 404.  This Court recently reaffirmed the point in Lipsky.  There, the Court considered an interlocutory appeal from a trial court order requiring a non-party to produce entire cell phones for forensic examination, despite the fact the devices had already been searched for relevant and responsive information.  Lipsky, 474 N.J. Super. at 451-52.  This Court reversed, concluding that New Jersey’s civil discovery rules do not anticipate that a requesting party “be permitted to search through their opponents’ electronic devices for responsive documents, any more than [they] anticipate[] that the requesting party would be permitted to search through their opponent’s filing cabinets for responsive documents. ”  Id. at 468.  Instead, the producing party must conduct its own threshold search of its ESI, identifying only “responsive information” and “data responsive to the records requests. ”  Id. at 472, 474.  The Court thus applied the --- 3
[brief] F/K/A [...]  F/K/A  [...], Defendant-Appellant, [...], [...], [...], [...], [...], ENDURANCE  AMERICAN INSURANCE COMPANY, ENDURANCE  AMERICAN SPECIALTY INSURANCE COMPANY, [...], [...], [...], [...], NAVIGATORS  SUPERIOR COURT OF NEW JERSEY APPELLATE  DIVISION  DOCKET NO.: [...]  T2  Civil Action On Appeal  From: SUPERIOR COURT OF NEW JERSEY LAW  DIVISION: HUDSON COUNTY  DOCKET NO.: [...]  Sat Below: Hon. [...], A.J.S.C. INSURANCE COMPANY, [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], [...], AND [...], Defendants-Respondents.
[brief] . . .").  *Rule 4:42-11* governs the award of post-judgment interest and prejudgment interest in tort actions.  In commercial contract disputes as well, absent exceptional circumstances, "the rate of return earned by the State Treasurer contemplated by *Rule 4:42-11(a)(ii)* is the standard to which trial judges should adhere" for prejudgment interest.  *Benevenga v. Digregorio*, 325 N.J. Super. 27, 35 (App. Div. 1999); see also *Litton Indus., Inc. v. IMO Indus., Inc.*, 200 N.J. 372, 390-91 (2009) (affirming trial court ruling applying *Rule 4:42-11(a)(ii)* interest rate in the absence of unusual circumstances).
[brief] (11T61-22 to 62-4).  [...] testified that he issued Miranda\(^3\) warnings because he did not know whether defendant was involved in [...]’s death.  (11T67-6 to 67-16).  Defendant signed the Miranda forms and verbally acknowledged each of his rights in turn, expressly declining counsel.  (11T68-4 to 69-17).  In that interview, defendant again claimed that he broke up the fight and did not know [...] well.  (11T69-20 to 70-20, 73-6 to 74-25, 89-12 to 25).  He claimed that [...] “beat up a girl,” whom [...] “was defending.” (11T77-18 to 23).  Defendant insisted that he “just happened to be going” to [...]’s house.  (11T81-16 to 19).  He stated that when he knocked, [...] came outside to fight, lost, and then got himself hurt by chasing [...] with the knife.  (11T83-3 to 13).  Defendant said that he never entered [...]’s home.  (11T83-3 to 7).  Days later, defendant was arrested and processed at the Gloucester County --- \(^3\) *Miranda v. Arizona*, 384 U.S. 436 (1966).
[brief] The regulations and the actuary’s standard of practice specifically identify the actuarial nature of establishing premium rate increase and inform when a rate might be considered excessive.  (Ra291).  Practically speaking, this should end [...]’s arguments suggesting that the Department should adopt either a range of rates deemed presumptively non-excessive, as contrasted with the “loss ratio” standard (N.J.A.C. 11:4-18.5) or the calculations in determining loss ratios (N.J.A.C. 11:4-34.17).
[brief] This principle is further demonstrated in *Cushing*, where the police asked the owner of the home, the adult defendant’s grandmother, to consent to a search of the defendant’s bedroom.  226 N.J. at 192-93.  In response, the defendant’s grandmother told the police “that she could not consent to a search of [the] defendant’s room because it was his room. ”  *Id.* at 193.  The Supreme Court agreed that the defendant’s grandmother could not consent to the search because of her “evident lack of common use of defendant’s bedroom and her recognition of his exclusive control of that space meant that only defendant possessed the ability to consent to a search of his bedroom and interior space. ”  *Id.* at 201-02.  Moreover, “[e]ven where a third-party has authority to consent to a search of the premises, that authority does not extend to a container in which the third party denies ownership.
[brief] "[A]ppellate review of a municipal appeal to the Law Division is limited to 'the action of the Law Division and not that of the municipal court.'"  State v. Hannah, 448 N.J. Super. 78, 94 (App. Div. 2016) (quoting State v. Palma, 219 N.J. 584, 591-92 (2014)).  "In reviewing a trial court's decision on a municipal appeal, [the Appellate Division] determine[s] whether sufficient credible evidence in the record supports the Law Division's decision."  State v. Monaco, 444 N.J. Super. 539, 549 (App. Div. 2016).  We must "determine whether the findings made could reasonably have been reached on sufficient credible evidence present in the record."  State v. Johnson, 42 N.J. 146, 162 (1964).  "When the reviewing court is satisfied that the findings and result meet this criterion, its task is complete and it should not disturb the result.  . . ."  Ibid.  A review of a municipal court conviction by the Superior Court is conducted de novo on the record.  R. 3:23-8.  The Superior Court should defer to the municipal court's credibility findings.  State v. Locurto, 157 N.J. 463, 470-71 (1999) (citing Johnson, 42 N.J. at 161-62).  However, "[o]n a de novo review on the record, the reviewing court . . . is obliged to make independent findings of fact and conclusions of law, determining defendant's guilt independently but for deference to the municipal court's credibility findings."
[brief] (2T10-7 to 25).  The police, however, changed the meeting location to the CVS parking lot next door to the apartment complex.  (2T11-1 to 10).  Law enforcement could easily surveil the controlled delivery from this vantage point.  (2T11-3 to 7).  The [...] and [...] agent traveled overnight with [...], [...], and the marijuana to the [...] headquarters in Holmdel, New Jersey.
[brief] **STATEMENT OF FACTS**  I.  Appellants Are Long-Time, Loyal Distributors Of [...] Products  Whose Relationship Is Memorialized in The Wholesaler Agreement.  [...] has been a family-owned company since its founding in 1973, specializing in the wholesale distribution of ultra-premium Japanese sake, spirits, and beer in the United States.  [...] was established in 1984 as [...]’s importer of alcohol and commercial foodstuffs.  (Pa30).  [...] has maintained a 45-year relationship with [...], and played an integral role in introducing and growing the [...] brand in the United States since 1977.  (Pa30).  Appellants also have a long-standing history in New Jersey.  Appellants’ principal place of business is located in [...], [...] is incorporated in New Jersey, the first step of Appellants’ role as [...]’s distributor is to purchase and import into New Jersey all of the [...] products in Appellants’ portfolio.  Appellants then distribute those goods from New Jersey throughout Appellants’ [...] distribution territories.  Critically, all of the events in Appellants’ Verified Complaint occurred in New Jersey.  (Pa30-44).
[brief] Indeed, New Jersey specifically chose not to codify defendant’s point of view, as outlined in the comments in the current 2C:  The Code as proposed required only the honest belief of the actor as the basis for justification.  The Legislature rejected this view and added the word “reasonably” before “believes” throughout the chapter.  The result, reasonable belief that force is necessary, is a codification of pre-Code caselaw.  Cannel, New Jersey Criminal Code Annotated, cmt. 1 on N.J.S.A. 2C:3-4(c) (2023).  Thus, while defendant hyper-focuses on the “detached viewpoint” phrase, claiming it is deviating from all other forms of reasonableness in the law, he fails to realize that this was a conscious choice.  The Legislature had the opportunity to sign on to defendant’s position, that any honestly held belief by a defendant is enough, but consciously chose not to do so.  The Legislature’s intent, then, is clear, and the Model Charge accurately reflects the distinction it chose to create.
[brief] State v. Silva, 131 N.J. 438, 444 (1993) (quoting *California v. Green*, 399 U.S. 149, 158 (1970))  The primary concern of the confrontational clause is to ensure the reliability of the evidence against the accused by subjecting it to "rigorous testing" in an adversarial proceeding.  *State v. Miller*, 170 N.J. 417, 425 (2002), quoting *Maryland v. Craig*, 497 U.S. 836, 845 (1990).  Here, [...] failed to confront [...] about inconsistencies in his grand jury testimony, affidavit of probable cause for a search warrant and trial testimony.
[brief] [...], ESQUIRE & [...]  [...]  On the Brief: [...], Esquire - NJ Attorney ID No. 263721970  #  TABLE OF CONTENTS | Section | Page | |------------------------------------------------------------------------|------| | PRELIMINARY STATEMENT | 1 | | PROCEDURAL HISTORY | 3 | | STATEMENT OF FACTS | 6 | | ARGUMENT | 25 | | I. STANDARD OF REVIEW | 25 | | II.
[brief] COUNTERSTATEMENT OF PROCEDURAL HISTORY ...........................................  1  COUNTERSTATEMENT OF FACTS ........................................................................  5  A.  Facts Established at Trial .............................................................................  5  B.  Defendant’s January 29, 2016 Sentencing ......................................................  6  C.  The Appellate Division’s February 2, 2018 Opinion on Direct Appeal .........................................................................................................................  6  D.  The Supreme Court’s August 6, 2019 Opinion on Direct Appeal ...............  7  E.  Defendant’s January 24, 2020 Resentencing .................................................. 7  F. Defendant’s Appeals from Resentencing .......................................................  10  G. Findings and Rulings of the PCR Court ..........................................................  10  LEGAL ARGUMENT POINT I: THE PCR COURT PROPERLY DENIED DEFENDANT’S DISPARAE SENTENCE CLAIM.  [(Raised Below.)]  [(21T; Da254-55).]  ........................................................................................................  15  POINT II: THE PCR COURT PROPERLY DENIED DEFENDANT’S INEFFECTIVE ASSISTANCE OF SENTENCING COUNSEL CLAIM.  [(Raised Below).]  [(21T; Da254-55).]  ........................................................................................................  23  POINT III: THE PCR COURT PROPERLY DENIED DEFENDANT’S INEFFECTIVE ASSISTANCE OF TRIAL  COUNSEL CLAIM BASED ON COUNSEL’S DECISION NOT TO CALL A WITNESS TO TESTIFY AT TRIAL.  [(Raised Below.)]  [(21T; Da254-55).]  ........................................................................................................  28  CONCLUSION ..................................................................................................................
[brief] ”  (1T 90-4 to 8)  The court elaborated that [...] “would not have know[n] that he was the target of a robbery charge until [at] the earliest maybe page seven of the transcript.  . . .  But up until that point, the questioning and the statements would have led [[...]] to believe it was issues involving the drugs. ”  (1T 90-10 to 15)  The court added that “no reasonable person would have known that they were being interviewed for purposes of the robbery,” and that “the Defendant was mislead [sic]” into believing that the interview was about drugs.  (1T 90-24 to 91-2)  Finally, the court reaffirmed for a second time that [...] “was misled. ”  (1T 92-7)  Nonetheless, the court denied [...]’s motion.  (2T 16-5 to 7; Da 8)  The court stated in its findings that on September 30, arresting officers planned to release [...] on his own recognizance after a drug arrest but, prior to his release, transferred him for an interview with [...].
[brief] The police report was not entered into evidence and the police officer who took the report was not called as a witness.  The court termed this tactic “phantom impeachment. ”  Defendant employed the same tactic at bar.  “Instead of seeking to introduce the police report, plaintiff's counsel engaged in a form of ‘phantom impeachment. ’  See [...], *Phantom Impeachment*, 77 A.B.A.J. 82 (Nov. 1991) (describing “phantom impeachment” as the contradiction of a witness on “key testimony—by someone who never takes the stand and who never says a word in court”).
[brief] First, reversal is required because the court relied on a dismissed charge in finding factors 3A and 3C.  The sentencing court found “that Defendant possessed the gun with a general objective to have on his person when committing robberies, but not with the specific objective in mind that he would use it to rob the [...]” because “two days after the Family Dollar incident Defendant was alleged to have robbed an [...] in a similar manner;” “only after struggling with the cashier and being restrained by another employee did Defendant brandish his handgun in order to flee the premises. ”  (Da47-48)  The court relied on the [...] allegations contained in counts five through eight of [...] and count two of [...] even though all those counts related to the alleged [...] robbery were dismissed.  (Da12; PSR12)  The Supreme Court has held that “prior dismissed charges may not be considered for any purpose” unless “the reason for consideration [is] supported by undisputed facts of record or facts found at a hearing.
[brief] COUNTER-STATEMENT OF PROCEDURAL HISTORY  On April 22, 2023, the [...] charged [...] (hereinafter “Defendant”) with motor vehicle violations of careless driving in violation of N.J.S.A. 39:4-97; leaving the scene of an accident in violation N.J.S.A. 39:4-129; failure to report an accident with property damage in violation of N.J.S.A. 39:4-129; driving while intoxicated (DWI) in violation of N.J.S.A. 39:4-50(a).  On September 14, 2023 (1T), a trial began in [...] before the Honorable [...], J.M.C.  The trial was continued on November 2, 2023 (2T), and November 8, 2023 (3T).  On November 8, 2023, the defendant was found guilty of DWI, leaving the scene, and failure to report an accident.  (3T 5-24 to 7-16).  He was found not guilty of careless driving.  The defendant was sentenced to fines, fees, imposition of an ignition interlock device for three-months, an aggregate six-month driver license suspension, and 12 hours IDRC.  (3T 5-24 to 9-19).  --- 1Da refers to Defendant’s Appendix; Db refers to Defendant’s Brief; 1T refers to the transcript dated September 14, 2023; 2T refers to the transcript dated November 2, 2023; 3T refers to the transcript dated November 8, 2023.  Thereafter, the defendant filed a Notice of Appeal to the Law Division on or about November 27, 2023.  (Da 5).  After submission of briefs and oral argument, the Honorable [...], J.S.C., issued a written opinion on April 24, 2024, finding the defendant guilty of DWI, and leaving the scene of an accident and imposed the same sentence as the municipal court.  (Da 1-40).  On May 13, 2024, defendant filed a Notice of Appeal from the Law Division decision.  (Da 41-44).  This appeal follows.  **COUNTER-STATEMENT OF FACTS**