ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] (9T 35-14 to 37-3)  The trial court’s heavy reliance on deterrence was misplaced, especially when viewed in conjunction with [...]’s advanced age upon release even if she received the minimum sentence of 30 years in prison.  As our Supreme Court recently emphasized, “[a] defendant’s age is doubtlessly among the information that courts should consider when calibrating a fair sentence. ”  State v. Torres, 246 N.J. 246, 273 (2021).  That information is necessary to consider the need for deterrence and incapacitation.  [...] was 3 days shy of 51 years old at the time of sentencing.  (9T 37-7 to 8)  Even if sentenced to the minimum term — 30 years in prison with 30 years of parole ineligibility — she would not be parole eligible until she was almost 80.  The 45-year-sentence sentence is longer than necessary to serve a deterrent or incapacitative purpose; the minimum possible sentence would have been sufficient.
[brief] The New Jersey Supreme Court applies strict scrutiny when the State seeks “to interfere with family and parental autonomy. ”  Moriarty, 177 N.J. at 103–04.  The Third Circuit likewise demands a “compelling interest” to justify governmental intrusion on fundamental parental rights.  Gruenke, 225 F.3d at 305 (when a “school’s policies might come into conflict with [parents’] fundamental right . . . to raise and nurture their child, . . . the primacy of the parents’ authority must be recognized and should yield only where the school’s action is tied to a compelling interest”).  Because the State’s actions in seeking to enjoin the Mandatory Notification Policies did not substantially intrude on constitutionally protected parental rights, they need only to be supported by a rational basis, which they are.
[brief] LEGAL ARGUMENT  Because an “appellate court ... do[es] not make independent findings of fact,” on appeal this Court “must uphold the factual findings underlying the trial court’s decision so long as those findings are supported by sufficient credible evidence in the record. ”  State v. Locurto, 157 N.J. 463, 471 (1999); State v. Elders, 192 N.J. 224, 243 (2007); State v. Robinson, 200 N.J. 1, 15 (2009).  Appellate deference to a lower court’s fact finding is more marked following a trial de novo: “appellate courts ordinarily should not undertake to alter concurrent findings of facts and credibility determination made by two lower courts absent a very obvious and exceptional showing of error. ”  Locurto, 157 N.J. at 474; Robertson, 228 N.J. at 148.  This high level of deference does not extend a lower court’s “interpretation of the law and the legal consequences that flow from established facts. ”  Manalapan Realty, L.P. v. Township Comm. Of Twp. Of Manalapan, 140 N.J. 366, 378 (1995); State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004); State v. Watts, 223 N.J. 503, 516 (2015).  “Whether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal.
[brief] THE COURT:  In that case, the court the affidavit of merit statute.  THE COURT: And specifically addressed whether that -- whether the affidavit of merit statute could be applicable to a breach of contract claim.  The court there found that "it is not the label placed on the action that is pivotal, but the nature of the legal inquiry.  Accordingly, when presented with a tort or contract claim asserted against a professional specified in the statute, rather than focusing on whether the claim is denominated as tort or contract, attorneys and courts should determine if the claims underlying factual allegations require proof of a deviation from the professional standard of care applicable to that specific profession.  If such proof is required, an affidavit of merit is required for that claim, unless some exception applies."  Id., at 340.  THE COURT:  See also Id., at 341 (a claimant -- "a claimant should determine if the underlying factual allegations of the claim require proof a deviation from the professional standard of care for that specific profession."  Applying that standard to the remaining claims, the court respectfully denies the motion, and maintains its dismissal of the remaining claims.  Again, I'm guided by what is specifically pled.  And in reviewing this matter again, it was clear to the court that really the factual predicates for the legal malpractice claims and the non-legal malpractice claims remain the same.  (1T:37:13-40:21)  The trial court properly held that this is a legal malpractice matter in which the Plaintiffs' claims needed to be supported by a competent expert report and testimony.  The trial court properly held that this is not a case in which the "common knowledge" exception has any application and the trial court was correct in dismissing the matter because the Plaintiffs failed to serve an Affidavit of Merit within the time permitted under the statute.
[brief] As noted by the State, Watson’s substantive holding contains one relevant “good reason” exception to the rule precluding all first-time in-court identifications: when an “eyewitness was familiar with the defendant before” the crime.  Victims of domestic violence, for example, could properly be allowed to identify their assailant in court for the first time.  Friends or associates, among others, could identify someone they have known for some time.  [254 N.J. at 587 (emphasis added). ]  However, the Watson Court also observed that even where the witness was familiar with the defendant, “[t]he better practice . . . is for the State to conduct appropriate identification procedures before trial,” and if the State fails to do so, “there may well be no good reason to allow an in-court identification for the first time. ”  Ibid.  Watson did not explore what level of familiarity would constitute “good reason” to justify an in-court identification.  However, while the perpetrator in Watson was a stranger to the victim, the victim in [...] did have some prior familiarity with the suspect.
[brief] C. [...]’s Zoning Ordinance Prohibits Any Use Not Expressly Permitted, Including Multiple Principal Uses on Any Lot Not Expressly Zoned for Multiple Uses  Because Plaintiff’s proposed dual principal use of the Property for a cell tower and warehouse is not expressly permitted by the Township Code, use variance relief to allow the non-conforming use configuration is required.  However, Plaintiff argues that the two uses are permitted at the Property without the need for further variance relief. (Pb12-21).  This is incorrect and inconsistent with settled law.  For example, it is well-settled that where a zoning ordinance permits specific uses, it is assumed that any use not specifically listed is prohibited.  See, e.g., L.I.M.A. Partners v. Borough of Northvale, 219 N.J. Super. 512, 515 (App. Div. 1987); Bartlett v. Middletown Twp., 51 N.J. Super. 239, 258–59 (App. Div. 1958) (noting that by specifically listing permitted uses, municipalities regulate and restrict the construction and use of buildings within that district to only those uses specifically enumerated).  While many zoning ordinances state that any use that is not identified as permitted is deemed prohibited, even in the absence of this express language, the presumed legislative intent is that only those uses listed in the ordinance are permitted.  See Fin. Serv. v. Little Ferry Zon. Bd. of Adj., 326 N.J. Super. 265, 274–75 (App. Div. 1999).  Here, a d(1) use variance is required to permit the Applicant’s multiple principal uses at the Property.  Wyzykowski v. Rizas, 132 N.J. 509, 521 (1993); Sun Co. v. Zoning Bd. of Adjustment of Avalon, 286 N.J. Super. 440, 446 (App. Div.), certif. denied, 144 N.J. 376 (1996).
[brief] Even [...]’s superficial attacks are hollow and misleading.  [...] claims that [...] did not disagree with the findings in a USDA brochure discussing best practices for protecting food from mold growth.  Db40.  [...] agreed that certain actions, like refrigerating food within two hours, would protect food from mold.  2T128-6-18.  Neither this brochure nor [...]’s testimony about it are relevant.  Next, [...] inaccurately claims that [...]’s theory of causation was rejected by [...]’s expert from Underlying Action, [...].  Db20.  [...] was not asked to provide an opinion on whether [...] was injured by eating mold-contaminated by food.  But in responding to one-off questions from [...]’s counsel, he testified that “ingestion or inhalation would be the two ways humans would be exposed. ”  Da1591a.  He further testified that it “seems like quite a stretch in this case” that [...]’s injuries were caused by ingestion of contaminated food.  Da1590a.  [...] further claims that “[...] ‘did not disagree’ with an expert report he reviewed stating that ‘foodborne exposure to mycotoxins and fungal contamination has been well researched’ and noting that ‘while [a]irborne exposure is likely the most significant route of exposure in water-damaged environments…transdermal and potentially foodborne exposure through contact with indoor mycotoxins can also occur. ’”  Db41.  The “expert report” is no report at all.  It is an article about water-damaged buildings.  It includes no discussion whatsoever about foodborne exposure to indoor mycotoxins.  Da729-Da749a.  [...] had never seen the article and was not prepared to comment on it.  Da1602a.  Neither [...], nor his expert at trial, even attempted to undermine [...]’s scientifically sound, data-based conclusions.  Instead, they offered data-absent, scientifically unsound “evidence. ”  The trial court considered the evidence presented and the credibility of the witnesses, and thoroughly documented its findings of fact and conclusions of law.  [...] has fallen woefully short of establishing that those findings are manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.  Accordingly, the Court should affirm the trial court’s determination that [...] failed to prove that the Consumption Exception restored coverage.
[directive] Directive Published 12324 (Competency by CN: Order I of3 page  An ( opinion as to whether or not the defendant presently incompetent to proceed to trial d) is N.JS.A. of in consideration the factors listed in 2C:4-4, and whether defendant's mental condition is such that he/she poses a present danger either to himself/herself or to other persons upon his/her release into the general community.  N.JS.A. 4.
[brief] In Viviano, the plaintiff’s pleadings included fictitious defendants and their potential roles in the creation and delivery of machinery that caused plaintiff’s injuries, categorizing them as the manufacturer, installer, and distributor of the machinery.  Id.  Here, in plaintiff’s complaint, plaintiff referred to fictitious defendants generally as “individuals or business entities who may be responsible, in whole or in part, for the causation of the aforesaid accident. ”  Pa1552.
[brief] Q.  Was everything you just described costs that were incurred by [...] specifically to promote the [...] brand and, in other words, not to promote any other aspect of [...]'s business?  A.  In -- there were, in conjunction -- I'm sure you're aware that we build the [...] system that was built to house grills and everything like that.  So at -- either at the trade shows or at the contractor nights, it would run in conjunction with our [...] structure brand and how it correlated with the [...] grill products.  (Pa1312).  Similarly, years ago [...] had a wrapped truck, which included mutual promotion of [...] and [...] in that it included [...] Grills and logos in the picture, as well as [...] and [...] logos, and [...]’s address.  (Pa1361).  [...] never had a truck solely wrapped in [...] information and to promote [...]’s product.  (Pa1363).  [...] never expended costs on social media targeted ads that would solely promote [...]’s products.  [...] testified, “So obviously the ads would never be strictly 100 percent for [...].  The reason for us spending the money and doing everything, it’s to get sales back to [...]. ” (Pa1365).  Importantly, [...]’s displays at trade shows also included displays of outdoor furniture.  (Pa1368).  [...] did not impose any requirements on [...] regarding [...]’s social media postings and it did not limit [...]’s ability to mention other grill brands on social media.  (Pa1366, Pa1367).  [...] routinely gave its logo to dealers and distributors for marketing purposes.  (Pa1699).  [...] did not direct [...]’s marketing at trade shows.  [...] decided the information included in its catalogs.  (Pa1692).  [...] was not aware of [...]’s marketing strategy at all.  (Pa1865).  Further, [...] did not have access to [...]’s financial books or records.  (Pa1909).  [...] had no right to inspect or audit [...]’s financial books or records.  (Pa1365).  [...] did not provide any periodic reporting or financial reporting requirements to [...] regarding its business, and [...] was not required to provide [...] with any financial reporting of any kind as to its business and sales.  (Pa1345).  [...] sent [...] a letter confirming the termination of their relationship on March 1, 2019.  (Pa97a).  [...]’s termination of its business relationship with [...] did not stop [...] from pursuing any revenues it was pursuing before 2018.  (Pa1511).  Importantly, [...]’s revenues increased after 2018 and the termination of its relationship with [...].
[brief] (Da 72-74)  On March 3, 2023, the trial court held a hearing on [...]’s motion to withdraw.  (3T)  At the hearing, defense counsel argued that because [...] entered into a “contingent plea,” his understanding was that if he was successful in appealing from any of his pretrial motions, he would be able to withdraw from his entire plea.  (3T 14-10 to 15-20)  Defense counsel also flagged that although the Supreme Court’s decision was about the 7-Eleven Case, it weakened the proofs in the Pharmacy Case, as the items suppressed by the Supreme Court had been deemed admissible 404(b) evidence.  (3T 11-8 to 12-4)  Counsel argued that if that 404(b) evidence been properly suppressed at the time of the plea, the outcome of the plea negotiations could have been different.  (Ibid.)  The trial court denied [...]’s motion to withdraw, concluding that [...]’s plea was taken in a “legally appropriate” way, and that [...] failed to meet his burden under State v. Slater, 198 N.J. 145 (2009).
[brief] PROCEDURAL HISTORY  [...] filed this action in the Superior Court of New Jersey, Essex County, Law Division, on December 1, 2021, alleging a taking without just compensation in violation of the New Jersey Constitution and unjust enrichment.  (Ja8–11).  In February 2021, Defendants filed a pre-Answer Motion to Transfer the matter to the Chancery Division, (Ja40), which [...] opposed.  The court granted the motion on December 8, 2022.  (Ja72–73).  In the Chancery --- 1  Transcripts of the proceedings below include the following: 1T: Transcript of Hearing, Feb. 27, 2023; 2T: Transcript of Hearing, May 26, 2023; 3T: Transcript of Hearing, July 20, 2023; 4T: Transcript of Hearing, Dec. 7, 2023.  Division, the parties filed cross-motions for summary judgment: the City argued that it had not taken a property interest protected by the Constitution.  (Ja74).  [...] moved for partial summary judgment, alleging that she was entitled to judgment as a matter of law that her property had been taken without just compensation.\(^2\) (Ja. 308–10).  After the parties had briefed the cross-motions, the United States Supreme Court issued its decision in *Tyler v. Hennepin County*.  Multiple rounds of supplemental briefing followed.  (Ja338–89).  On March 19, 2024, the court granted summary judgment in favor of Defendants, holding that *Tyler*’s retroactive effect does not reach this case, and that the case is barred by laches.  (Ja405–17).  This appeal was timely noticed on April 17, 2024.  (Ja 419–24).
[brief] The NJ Appellate Division further has held that the [...] foreclosure of an owner’s equity is a prohibited taking after *Tyler*.  (Da48-Da58)  Pipeline retroactivity refers to the application of a new rule of law to cases that are still pending on direct appeal at the time the new rule is announced.  *State v. Covil*, 240 N.J. 448, *State v. Earls*, 214 N.J. 564.  The doctrine of pipeline retroactivity ensures that new rules of law are applied not only to future cases but also to cases that are still pending on direct appeal when the new rule is announced *State v. Covil*, 240 N.J. 448, *State v. Earls*, 214 N.J. 564.  This approach aims to maintain consistency and fairness in the application of legal standards.  The factors considered in determining the degree of retroactivity are crucial in ensuring that the application of new rules is just and consonant with public policy.  Rutherford Education Asso. v. Board of Education, 99 N.J. 8, Roik v. Roik, 477 N.J. Super. 556.  The Court evaluates the reliance placed on the old rule, the purpose of the new rule, and the potential impact on the administration of justice.  These considerations help balance the interests of fairness and legal stability.  The purpose of the new rule is clearly to stop lien holders from stealing whole homes from families over a small amount of taxes owed.
[brief] "Health carriers" included health insurance companies, health maintenance organizations, health service corporations, hospital service corporations and medical service corporations.  The Court ruled that health carriers have no common law right to subrogation; the enactment of N.J.S.A. 2A:15-97 continued to leave health carriers with no right to recover paid benefits; and the rules adopted by the [...] ([...]) allowing reimbursement and subrogation provisions in contract forms (N.J.A.C. 11:4-42.10), must be narrowly interpreted to apply only in cases that do not involve the collateral source rule (for example, those in which New Jersey law is not applicable).  *Id.* at 418.  In response to the Court's decision in *Perreira*, on July 5, 2001, [...] issued Bulletin No. 01-11 (Pa29) to all New Jersey licensed health carriers directing them immediately to cease all subrogation and recovery efforts against persons covered by group or individual contracts or policies issued in New Jersey, except to the extent permitted by N.J.S.A. 2A:15-97, regardless of whether these contracts include subrogation or reimbursement provisions.
[brief] IN 2020  [...] only used the internet when he checked emails.  (8T 79:2-25 Jan. 23, 2023).  [...] testified that he used to making tax payments by going to the county clerk’s counter at City Hall.  (6T 85:13-20, Jan. 12, 2023).  His wife testified that she accompanied him to the county clerk’s cashier window to make tax payments.  (8T 83:14-84:20, Jan. 23, 2023).  Because [...] and his wife do not drive, [...] also testified that he drove [...] to the County Clark office to pay property taxes several times.  (10T 108:1-7; 110:13-19, Jan. 23, 2023).  Other than the property taxes, [...] relied on his wife to mail checks or go in person to make payments, including insurance and utilities.  Thus, there had not been any doubts for [...] and his wife that [...] owned the Property.  In the spring of 2020, the Covid Pandemic started, which resulted in the closure of municipal offices including the County Clerk.  As a result, [...] was forced to make all tax payments online.  Since [...] did not know how to do online payments, his wife started to make tax payments online.  Around April 20202, while attempting to pay the property tax for the Property online, [...]’s wife discovered that ownership of the Property was now titled to [...].  Upon discovery of the fraudulent transfer, [...] immediately retained counsel and started this action.  (3T 107:19-108:19, Jan. 9, 2023).  E. [...] AND HIS FAMILY’S TWENTY YEARS’ OF NON-ININVOLVEMENT IN THE PROPERTY
[brief] ***  Thus, the pleading of affirmative defenses must be, not merely by legal conclusion, but by a statement of facts.  ***  Equitable estoppel embodies the doctrine "that one shall not be permitted to repudiate an act done or position assumed where that course would work injustice to another who, having the right to do so, has detrimentally relied thereon."  ***  …Estoppel is conduct, either express or implied, which reasonably misleads another to his prejudice so that a repudiation of such conduct would be unjust in the eyes of the law.  Such estoppel is grounded not on subjective intent but rather on the objective impression created by the actor's conduct.  Therefore, the failure to properly plead the TCA defense is fatal to its being applied against plaintiff.  Since defendant failed to plead the defense, waiver and estoppel bar the TCA defense from being used to defend the case.
[directive] Officer is Obligation to cooperate  Obligation to cooperate • •  No Miranda warning  Witness acknowledgement form • •  WITNESS  Witness acknowledgement form  May be entitled to a Weingarten • • representative  May be entitled to a Weingarten  • representative7 8.1.2  Serious allegations of officer misconduct may implicate both a violation of a criminal statute and of an agency’s rules and regulations.  As a result, a criminal investigation and an administrative disciplinary investigation may be needed to properly resolve a misconduct complaint.  In general, criminal investigations and administrative investigations should be kept separate to the extent possible, with criminal investigations led by the County Prosecutor’s Office preceding internal affairs disciplinary investigations.
[brief] ”  In addition, when someone is wrongfully convicted, the real perpetrator remains free to victimize again.  Thus, this an issue of far-reaching importance to the Defense, Prosecutors, Police Departments, as well as to Judges:  All have an interest in minimizing the possibility of erroneous convictions.  Before defendant begin my discussion of the science as applied to this case, defendant want to emphasize that my points here is not to cast aspersions on the motives of the Police or Prosecutor involved in this investigation or insinuate that they intentionally used [...] with twelve felonies prior convictions and squandered the evidence.
[brief] Defendants’ dependence upon the holdings in *Reliance Transport* and *Display* Works is also misplaced.  In Reliance Nat. Ins. Co. v. Dana Transport, Inc., 376 N.J. Super. 537 (App. Div. 2005), a Florida based firm was employed to assert a subrogation action in Florida on behalf of the carrier for an insured cargo transportation company that shipped leaking cargo from Georgia to Puerto Rico, damaging a barge.  The insurance carrier paid for the damage to the barge, then sought subrogation from the negligent inspector of the leaking cargo in a Florida action.  In that action, the insured did not cooperate with the Florida law firm and the firm was granted permission to withdraw.  The carrier then sued its insured directly in New Jersey.  The insured asserted a third-party claim against the Florida law firm.  The court determined it did not have jurisdiction over the non-resident defendant law firm because the firm did not have “continuous and systematic” contacts with the state and had no “purposeful activity” here.  Id. at 549.  Further, the court determined that Florida had the most at stake in the action.  In Display Works, LLC v. Bartley, 182 F. Supp. 3d 166 (D.N.J. 2016), a company sued its former employee and his new employer alleging violations of a non-compete, tortious interference and other claims related to his retention of customer information, and solicitation of former co-workers.