ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] On February 24, 2023, the defendant, [...], was arrested in Freehold Township and charged with failure to maintain lane, N.J.S.A. 39:4-88; reckless driving, N.J.S.A. 39:4-96; driving while intoxicated (“DWI), N.J.S.A. 39:4-50; and, refusal, N.J.S.A. 39:4-50.2.  Prosecution of the motor vehicles summonses took place before the Honorable [...], J.M.C., in the Freehold Township Municipal Court.  See (1T to 5T).  After hearing testimony both on a motion to suppress and trial, Judge Sonneblick denied defendant’s motion, see (4T:37-12 to 38-11), and found guilty of refusal and failure to maintain lane and not guilty of DWI and reckless driving, see (5T:7-1 to 13-8).  Thereafter, Judge Sonnenblick sentenced the defendant to the statutorily-mandated fines and penalties, along with seven-months ignition interlock and 12 hours IDRC.  (5T:16-1 to 17-6).  Defendant thereafter filed an appeal of his conviction with the Superior Court, Law Division.  Da6.  The Honorable [...], J.A.D. (ret. & t/a), heard argument on defendant’s de novo appeal on April 17, 2024.  (6T).  On April 19, 2024, Judge Guadagno issued an opinion finding defendant not guilty of failure to maintain lane, but re-finding defendant guilty of refusal.  1  The State’s transcript citations conform with the transcript key contained in defendant’s brief, see Db14.  Da1, 7-14.  Judge Guadagno re-imposed the sentence on the refusal charge imposed in the municipal court:  “$407 fine, $33 court costs, $125 DDE fund, 12 hours IDRC and suspension of license until interlock device is installed for a seven-month period. ”  Da13.  Defendant filed a request for a stay of sentence pending appeal, which this Court denied.  Defendant thereafter perfected his appeal with this Court, to which the State now responds in opposition.  COUNTERSTATEMENT OF FACTS
[brief] Id. at 395.  In Hargett, the plaintiff supplied an Affidavit of Merit that broadly stated that the “treatment provided by Alaris [Health]...and [...], and members of their nursing and nursing administrative staff, fell outside acceptable professional standards and was the cause of harm…”  Id. at 394.  The court found that it was not possible to identify any [...] nurses who the plaintiff asserted were negligent because the Affidavit of Merit referred generally to the entire nursing staff over an extended period of time.  *Id.* at 398.
[directive] Comment:  Grand jurors are to be randomly selected from the source list in the same manner as petit jurors, using the Jury Automated System (JAS).  Rule 3:6-10 provides that the term of service shall not be longer than 20 weeks unless the Assignment Judge orders it to be extended.  Assignment Judges are encouraged to authorize a shorter term of service where practical which will reduce the inconvenience on jurors while also allowing more citizens to serve as grand jurors.  Additionally, “alternate grand jurors” should not be selected because: (1) Rule 3:6-1 requires the Assignment Judge to organize grand juries “…not to exceed 23 members…,” (2) the grand jury can act without its full complement of grand jurors (twelve jurors are needed for a quorum); and (3) grand jurors can be replaced at a later time, if needed.
[brief] *Id.* at 9-17.  Verification must be conducted in a manner “not improperly influenced by the original examiner’s decisions or work products.  The verifier must be able to reach an unbiased conclusion. ”  *Ibid.*  Even assuming that no two people have the same fingerprints—an assumption that cannot feasibly be tested, see generally [...] & [...], *The Individualization Fallacy in Forensic Science Evidence*, 61 *Vand. L. Rev.* 199, 208-214 (2008)—the mere fact that each fingerprint is unique does not mean that “anyone can reliably discern whether or not two friction ridge impressions were made by the same person.
[brief] This landscape buffer on the East Windsor side and the encroachment to the buffer is surface parking that does not deprive anyone of air and light and could be screened at site plan so that people do not have to deal with headlight glare from the parking area.  The Board rejects these reasons and finds that the Applicant, not the Board has the duty to provide for the amelioration of the negative impacts of a variance, and deferring the same to site plan design is legally insufficient to justify the variance.
[brief] Based upon the holdings of those cases, the Trial Court erred when it reconsidered Defendants' R. 4:6-2e motion.  B.  The Trial Court erred when it dismissed Plaintiffs' quasi-contractual claims.  (1028a-1031a).  Assuming arguendo that the Court accepts Defendants' argument regarding the lack of formal contractual rights, then Plaintiffs are entitled to recovery under the theories of unjust enrichment and quantum meruit.  Under the motion to dismiss standard pursuant to R. 4:62e, the quasi-contractual claims should be remanded to the Trial Court to finish discovery.
[brief] There is no dispute by the parties that the [...] was the designated redeveloper of the Project and has the power of eminent domain.  (Pa000272).  There is no dispute that [...] was responsible for the environmental remediation in connection with the Project.  (Pa000272, page 16, line 5 to line 11; Pa000274, page 24, line 1 to line 23; Pa000721).  There is no dispute that [...] had sent an offer letter to Plaintiffs in 2013, but that [...] did not acquire the Plaintiffs’ Property.  (See Pa000317, page 17, line 8 to line 15; Pa000765).
[brief] *Id.* at 177; see Mallory at 2028, 2045.  In Mallory, the Supreme Court specifically upheld its decision in Pennsylvania Fire, decrying the myriad cases applying Daimler and a long-arm analysis where consent to jurisdiction had already been explicitly or implicitly given.  Mallory at 2038.  Defendants claim the judicial estoppel doctrine prevents Plaintiff from asserting that jurisdiction should apply here.
[brief] *Clawans*, 38 N.J. at 174.  There, the defendant, an attorney, appealed from her conviction that she directed a jail inmate to testify falsely on her client’s behalf.  The attorney’s conversation with the inmate allegedly occurred in the presence of a jail staff member, whom the State failed to call at trial.  *Id.* at 165-67.  The New Jersey Supreme Court held that because a party’s failure to produce a witness who “would serve to elucidate the facts in issue” raises an inference that the party did so because the testimony would have been unfavorable, the jury should be so instructed unless the witness is unavailable, prejudiced against the party, or if the “testimony would be cumulative, unimportant or inferior to what had been already utilized. ”  Id. at 170-71.  In Clawans, the jail staff person was available, not prejudiced against the State, and “an eyewitness to the entire transaction -- a status which could make her testimony superior to that of anyone except” the inmate.  Id. at 174.  As in Clawans, the missing witness in the instant case – [...] – was “an eyewitness to the entire transaction,” a status which by its very nature was likely to have made his testimony superior to other evidence.
[brief] It is the foreclosure process used by the Plaintiff.  The benefit of a determination of abandonment is to accelerate a foreclosure rather than wait two years from the sale of the tax sale.  N.J.S.A 54-5-86.  Application of N.J.S.A 54:5-86(b) requires that at the time of filing (emphasis added) “an action with the Superior Court in the county, wherein the municipality is situate . . . pursuant to the tax sale law R.S. 54:5-1, et seq, or the In Rem Tax Foreclosure Act . . .  The filing shall include a certification by the public officer or the tax collector that the property is abandoned, provided pursuant to . . .  N.J.S.A. 55:19-83.  If neither the public officer or tax collector comply, the “certificate holder may submit to the court, evidence that the property is abandoned, accompanied by a report, and sworn statement of an individual holding appropriate licensure or professional qualifications, and shall provide a copy of those documents submitted to the court to the public officer and tax collector.  . . on the basis of this submission . . the court shall determine whether the property meets the definition of abandoned property.
[brief] [...] brings claims asserting that the promotional ineligibility policy applicable to Firefighters on sick or injury leave is directly unlawful or unlawful on its face.  Furthermore, discrimination against Firefighters for requesting and taking medical leave is an act which interferes with the “exercise or enjoyment of a protected right”.  *N.J.S.A.*  10:5-12(d)  [W]hen a disabled employee requests and then takes a temporary medical leave of absence, said employee avails himself of a right that is "granted or protected by [the NJLAD]," and thus engages in protected conduct.  See *N.J.S.A.* 10:5-12(d)  *Boles v. Wal-Mart Stores, Inc.*, Civil Action No. 12-1762 (JLL), 2014 U.S. Dist. LEXIS 41926, at *23 (D.N.J. Mar.  By taking adverse action (rendering Firefighters ineligible for promotion) in response to the exercise of a protected right, Defendant’s actions are properly characterized as retaliatory.  When the claim arises from alleged retaliation, the elements of the cause of action are that the employee "engaged in a protected activity known to the [employer,]" the employee was "subjected to an adverse employment decision[,] and there is a causal link between the protected activity and the adverse employment action.
[brief] Point V  The Process server was not independent and had an interest in the litigation.  (T4, p. 98:1-4).  The Plaintiff tax foreclosure business, the Plaintiff’s in-house counsel and the process service company all share the same office which raises the presumption that the process service company, who is in control of everything on the Affidavit of Service, has an interest in the litigation contrary to Rule 4:4-3.  The Court held that “potentially there’s … a conflict.  I don’t find that there is such a conflict. ”  T4, p. 98:1-4.  This is an issue of first impression as to whether or not the Plaintiff, Plaintiff’s in-house counsel and the in-house Process server can all be located in the same office and still be afforded the presumption of validity – especially in a case where there are multiple indicia of unreliability on the Affidavits of service, proof that the persons served were elsewhere at the time of purported service and fatal errors in procedure such as failure to follow standard notarization protocol.
[brief] [...]’s comically weak argument boils down to its current claim that, in addition to [...]’s de minimis document production, Shallan [...] made some phone calls to [...].  (Pb12)  But when were these calls made? To whom were the calls made?  And what, specifically, was “released” at Shallan [...]’s direction, and at what time?  We never learn this.  Not the slightest scrap of evidence was ever provided.  Shallan [...]’s totally and completely unsupported “word” does not have the force of law.
[directive] At the time of the suspension, the individual shall be provided with a written statement of the reasons the action has been taken.  (A sample form is found in Appendix 22 INTERNAL AFFAIRS POLICY & PROCEDURES | June 2021 D).  In the event of a refusal by the individual to accept that written statement, a copy shall be provided to the individual's collective bargaining representative as soon as possible.  If a supervisor or commander authorized to do so imposes an immediate suspension, the law enforcement executive must be advised without delay.  He or she will then determine the status of the suspension given the facts of the case in light of the above criteria.
[brief] Defense counsel conceded he had done so, but argued that [...] “took it a whole step further. ” (17T24-4 to 5).  The judge explained that when defendant elicited inadmissible ultimate fact questions from his own expert, “the reality is, is that by doing that, the only remedy that I could do under the circumstances, was to allow the State to ask the exact same question” in rebuttal under the doctrine of curative admissibility.
[brief] (1T10)  This Burt defendant characterization was a significant issue for the parties.  Under Burt, remaining defendants are entitled to a molding of the verdict to reflect a reduction of the dismissed Burt defendant’s share of liability, even if a remaining defendant’s share of liability exceeds 60%.  Thus, the practical significance of this determination was that, notwithstanding [...]’s dismissal, [...] would be entitled to a molding of the verdict to reduce any allocated share of liability, even if the Joint Tortfeasor’s Contribution Law would otherwise have required [...] to satisfy 100% of the verdict.
[brief] While [...] defendant and plaintiff [...] were engaged in negotiations to convert their land lease to a purchase/sale transaction, on or about September 5, 2017, defendant [...] Estates served a notice to cure for alleged nonpayment of annual rent due September 1, 2017, with a cure date of September 16, 2017; and thereupon on October 17, 2017, [...] ultimately served a notice of breach, but has yet to obtain any judicial declaration of eviction from any tenancy court, and thereby engaged in self-help commercial eviction.
[brief] ...  From what I can recall, she was -- she assured me that if I felt uncomfortable at any -- that I didn't have to sit in anymore training with him if I felt uncomfortable, that it would be okay and stuff like that.  That's a slideshow training, that I don't have to do it, and we could always do it on the side if you feel more comfortable with.  So that was – and she was like sympathizing with me, kind of saying how... you know, how she was the first woman and that she went through things and differences.  So she was sympathizing with me, and I was able to tell her how I felt.  Pa45, T56:24-57:2; Pa49, T71:4-15; and Pa55, T96 :3-16.
[brief] See, e.g. Med. Center v. Princeton Tp. Zoning, 343 N.J. Super. 177, 198 (App. Div. 2001) citing Ward v. Scott, 16 N.J.  16, 23 (1954).  The ALJ and BPU ignored the ZB resolutions as probative and useful proof of the proposed [...] regulator on the municipality’s land use and master plan.  There is nothing in any statute that supports this evasion.  [...] offered the testimony of [...] a planning expert, who had also testified at the ZB.  ([...] allowed that she could be referred to as [...].)  Her testimony was that the [...] applications should in fact have qualified for zoning variances.  The ID relied exclusively on her testimony as regards the impact of the combustion regulator on [...]'s land use ordinances, Pa86, in finding that her testimony was "undisputed" and that the combustion regulator "will not be incongruent with the existing structures and their uses."  (The existing structures are an office complex and a cell phone tower.)  The BPU Decision made the same mistake of law.
[brief] In *State v. Davis*, 2010 WL 4056849 (App. Div. July 13, 2010), this court held the defendant was barred from re-litigating a *Miranda* motion in one county when he had already unsuccessfully litigated it in another county.⁸ *Id.* at *5-6*.  In making this determination, this court observed the same statement was at issue in both cases.  *Ibid.*  Like the defendant in *Davis*, defendant has two separate cases in two separate counties.  In one county, a motion has already been litigated and decided, and now defendant seeks to litigate the same motion in another county.  Thus, just as the defendant in *Davis* was barred from re-litigating the same motion in another county, this defendant should be estopped from re-litigating the same motion in this county.
[brief] “An appellate court affords a “strong presumption of reasonableness” to an administrative agency’s exercise of its statutorily delegated responsibilities. ”  Lavezzi v. State, 219 N.J. 163, 171 (2014) (quoting City of Newark v. Nat. Res. Council, Dep’t of Envtl. Prot., 82 N.J. 530, 539 (1980)).  The party challenging the validity of the administrative decision bears the burden of showing that it was “arbitrary, unreasonable or capricious. ”  Boyle v. Riti, 175 N.J. Super. 158, 166 (App. Div. 1980).  The court must “defer to an agency’s technical expertise, its superior knowledge of its subject matter area, and its fact-finding role,” and is “obliged to accept all factual findings that are supported by sufficient credible evidence. ”  Futterman v. Bd. of Rev., Dep’t of Labor, 421 N.J. Super. 281, 287 (App. Div. 2011) (quoting Messick v. Bd. of Rev., 420 N.J. Super. 321, 325 (App. Div. 2011)).
[brief] This Court uses an abuse of discretion standard when reviewing decisions by trial courts that dismiss complaints with prejudice due to failure to comply with court orders.  See Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995).  Appellate courts have generally declined to interfere with matters of discretion unless it appears that the trial judge has mistakenly exercised this discretion and an injustice has been done.  Allegro v. Afton Village Corp., 9 N.J. 156, 161, 87 A.2d 430 (1952); Comeford v. Flagship Furniture Clearance Center, 198 N.J. Super. 514, 517, 487 A.2d 1257 (App. Div. 1983).  “While dismissal of a party’s cause of action is a drastic sanction, it may be invoked where undue delay has occurred and where there is an inadequate explanation for delay in … complying with the rules .  . . .”  Comeford, 198 N.J. Super. at 517.  Here, the trial court was well within its discretion to dismiss the Complaint with prejudice pursuant to Rule 4:37-2 because of Appellant’s repeated failures to comply with various court orders.  This Court should affirm the trial court’s dismissal with prejudice.  ARGUMENT I.
[brief] That rule states, if the defendant prevails on appeal, the defendant shall be afforded the right to withdraw his or her plea.  In 2016, [...] entered into a global plea agreement in which he agreed to plead guilty to a felony murder charge in one indictment and an armed robbery charge in another indictment.  In exchange, the State agreed to recommend 30 with 30 on the felony murder, concurrent to a 12 NERA sentence on the armed robbery.  [...]' plea was conditioned on his right to appeal the denial of a 404(b) motion from the felony murder case and a suppression motion from the armed robbery case.  In 2022, the New Jersey Supreme Court reversed the denial of [...]' suppression motion, finding the police lacked reasonable suspicion to stop a car he was a passenger in and all evidence found as a result to the stop was, therefore, suppressed.  That was State v. Nyema.  The armed robbery indictment was subsequently dismissed and [...] moved to withdraw from his global plea agreement.
[brief] ” (AB at p. 12).  This argument fails because the Forfeiture statute does in fact provide an avenue for overcoming the statutory bar in specific circumstances if a disqualified individual obtains a waiver.  See N.J. STAT. ANN. § 2C:51-2(e).  Just as here, that avenue was irrelevant to the final disposition of *Cedeno* because it did not apply to the plaintiff.  As in *Cedeno*, the existence of an irrelevant avenue of waiver here does not prevent the application of the clear statutory bar of employment.  Plaintiff has not provided evidence on the record suggesting that the Department granted Plaintiff an exception or that the exception applies to Plaintiff’s circumstances in any way, shape, or form.  There is nothing in the existence of an irrelevant exception that distinguishes this case from *Cedeno* and therefore, *Cedeno* applies.
[brief] (21T 18-18)  The jurors returned to the courtroom at 12:27 p.m. and took a lunch break until 1:42 p.m., when they returned to the courtroom again and deliberated until 2:22 p.m., when they announced their first deadlock:  “[...], we’re in a deadlock and not sure what to do.  Can you advise? ” (21T 21-15 to 23-23)  At 2:26 p.m., the judge read the standard *State v. Czachor*, 82 N.J. 392, 406 (1980), instruction to tell the jurors to return to deliberations, but not to surrender one’s honest convictions while still remaining open-minded to the views of others.
[brief] As noted by [...] in Schierstead v. City of Brigantine, 29 N.J. 220 (1959):  Statutes are to be read sensibly rather than literally and the controlling legislative intent is to be presumed as “consonant to reason and good discretion. ”  See, Morris Canal and Banking Co. v. Central Railroad Co., 16 N.J. Eq. 419, 428 (Ch. 1863); In Re Merrill, 88 N.J. Eq. 261, 273 (Prerog. Ct. 1917); May v. Board of Com’rs of Town of Nutley, 111 N.J.L. 166, 167 (Sup. Ct. 1933); Lloyd v. Vermeulen, 22 N.J. 200, 205 (1956).
[brief] [...]’s entire theory in its Complaint is that the defendants were “ineligible” for PIP benefits bases on their alleged conduct.  See, e.g., Pa42 ¶ 136, Pa69 ¶ 314, Pa70 ¶ 319, Pa74 ¶ 338, Pa77 ¶ 352(b), Pa77-78 ¶ 354, Pa80 ¶¶ 364-68, Pa81 ¶ 369, Pa84 ¶ 377, Pa85 ¶ 381, Pa106 ¶¶ 476-78, Pa109-10 ¶¶ 485-87.
[brief] An apparent discrepancy exists between the trial court’s finding at the initial motion hearing and in denying summary judgment.  At the initial motion hearing, the court relied upon Defendant’s admitted, actual knowledge of the Judgment in 2020 to warrant denying the motion to vacate in 2023.  The court stated it was making no finding as to whether or not Defendant was actually served.  However, when denying Defendant’s motion for reconsideration, the trial court found that Defendant was served and failed to present sufficient, credible evidence to dispute personal service in 2015.
[brief] Appellant’s Notice of Appeal as to the Motion to Bar is untimely.  A Notice of Appeal must be filed within 45 days of the final order.  Rule 2:4-1(a).  The 45-day period is tolled while a motion for reconsideration is pending regarding the order from which the party seeks to appeal.  M.M. v. M.W., 2021 WL 6015784, at *7 (N.J. Super. Ct. App. Div. Dec. 21, 2021) (citing Rule 2:4-3(e)).  Rule 2:4-3(e) states that the running of the time for taking an appeal is tolled:  (e)  In civil actions on an appeal to the Appellate Division by the timely filing and service of a motion to the trial court for rehearing or to amend or make additional findings of fact pursuant to R. 1:7-4; or for judgment pursuant to R. 4:40-2; or for a new trial pursuant to R. 4:49-1; or for rehearing or reconsideration seeking to alter or amend the judgment or order pursuant to R. 4:49-2.  The remaining time shall again begin to run from the date of the entry of an order disposing of such a motion.  Rule 2:4-3(e).  The Motion to Amend the Order was only as to the March 27, 2023 Order regarding [...]’s Motion for Summary Judgment and did not address the March 27, 2023 Order regarding [...]’s Motion to Bar.  Therefore, Appellant does not get the benefit of the tolling provision as to the Order regarding [...]’s Motion to Bar [...]’s expert.  Appellant’s Notice of Appeal as to [...]’s Motion to Bar [...]’s expert is untimely because it should have been filed within 45 days of March 27, 2023 (by May 11, 2023).  Appellant filed the Notice of Appeal of [...]’s Motion to Bar [...]’s expert on August 30, 2023, 111 days late.  This part of [...]’s appeal must be summarily dismissed.
[brief] It is possible that a jury might find the idea of distinguishing between the two difficult, but that is what careful jury instructions are for.  The risk of confusion was not a reasoned basis for depriving [...] of his defense or denying the jury an opportunity to deliberate on what had been framed as one of the most important issues in the case.  Finally, it was also erroneous for the trial court to hold that the general murder instructions adequately dealt with this issue.  Without a specific instruction on diminished capacity, the admission of all the mental-health-related evidence was grossly prejudicial and worked only to significantly benefit the State.  It allowed the perverse result of letting the State argue at length that [...] was the one who committed the act because he was suffering from paranoid delusions yet not allowing the jury to consider those delusional episodes as potentially mitigating [...]’s state of mind at the time of the incident.