ai-law-society-lab/PublicDefenseDataset huggingface dataset:
[brief] PROCEDURAL HISTORY .......................................................................................................4  STATEMENT OF FACTS  .......................................................................................................5  Defendants Provide Virtually No Discovery Resulting in The Striking of Their Answers on December 22, 2024  .................................................................8  Defendants Fail to Provide Fully Responsive Discovery to Restore Their Stricken Pleadings Despite Being Given Multiple Opportunities to Do So ....  14  The Trial Court Grants Plaintiffs’ Motion to Strike Defendant [...]’s Answer With Prejudice and Denies Defendants’ Cross-Motion to Restore Their Answers ..................................................................................................................  20  The Trial Court Amplifies the June 12 Orders .................................................................22  ARGUMENT .............................................................................................................................24  I.  THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN FINDING THAT DEFENDANTS HAD NOT PROVIDED FULLY RESPONSIVE DISCOVERY AFTER THEIR ANSWERS HAD BEEN PREVIOUSLY SUPPRESSED (A3, 4-5, 6-11, 3T15-19)  ...........................................................................................................24  II.  [...] DID NOT ABUSE HER DISCRETION IN “MAINTAINING”  THE DEFAULT AGAINST DEFENDANTS AS DEFENDANTS HAD ALREADY BEEN PROVIDED WITH THE OPPORTUNITY TO PROVIDE FULLY  RESPONSIVE ANSWERS TO PLAINTIFFS’ “PUNCH LIST” (A3, 4-5, 6-11, 3T15-19)  ..............................................28  CONCLUSION  .........................................................................................................................31
[brief] Plaintiffs [...], [...], [...], [...], [...], [...], and [...] (the “Individual Plaintiffs”), and Intervenor [...] f/k/a [...] (“[...]” or the “Company”) (together with the Individual Plaintiffs, the “Plaintiffs”), submit this memorandum of law in opposition to defendant [...]’s appeal and in support of Plaintiffs’ cross-appeal of orders (1) vacating the portion of the final arbitration award requiring Brad to reimburse the Company 40% of its legal fees incurred in arbitration Phase I; and (2) valuing Brad’s interests in the Company using Fair Market Value rather than tax book value.  PROCEDURAL HISTORY/STATEMENT OF FACTS¹
[brief] Defendant's 40-Year Sentence As An Accomplice To Felony Murder Was Grossly Excessive, Given His Lack Of Prior Felony Convictions, The Jury's Acquittals On The Own-Conduct Robbery And Murder Charges, And The Co-Defendant's 13-Year Sentence For Aggravated Manslaughter.  A trial judge is required to state the reasons that it arrives at a particular sentence.  *State v. Case*, 220 N.J. at 65.  In addition to its erroneous findings on the aggravating and mitigating factors, the court provided no reason at all for imposing a forty-year sentence for felony murder.  The sentencing range for felony murder ranges from thirty years, with a thirty-year minimum, to life in prison or a specific term of years between thirty years and life.  N.J.S.A. 2C:11-3(b).  Defendant's forty-year sentence was excessive in this circumstance, where the jury acquitted him of both robbery and murder by his own conduct, and where he had no prior indictable convictions.  The court gave no explanation for imposing a sentence that was ten years longer than the minimum thirty-year sentence under the Code.  Nor did the court explain its justification for imposing a sentence that was twice as long as the maximum twenty-year sentence that had been offered to [...] as part of his plea.  The judge later sentenced [...] to a thirteen-year term for aggravated manslaughter (Da68).  "[T]here is an obvious sense of unfairness" when "equally culpable perpetrators” receive highly disparate punishments, especially when the primary distinction between them is that the more harshly punished defendant exercised his right to trial.  State v. Roach, 146 N.J. 208, (1996); State v. Hubbard, 176 N.J. Super. 174, 175 (1980).  Defendant's forty-year sentence was over three times as long as the thirteen-year term that [...] ultimately received (Da68).  See Roach, 146 N.J. at 233 (thirty-year disparity between co-defendants' sentences was "huge").  [...] had cooperated with law enforcement, but the jury's acquittal on multiple charges made it clear that jurors rejected much of [...]'s testimony regarding defendant's alleged involvement in these crimes.  Concededly, [...] was sentenced after defendant.  But he and defendant were sentenced by the same judge.  Sentencing judges must take into account and give substantive weight to the sentences imposed on similar co-defendants.  Id. at 234.  At the very least, at the time of sentencing defendant, the court was aware that [...]'s maximum possible sentence was twenty years, and that the jury had rejected many of the allegations in his testimony.  The court provided no reasons why defendant should have received such a substantially longer sentence than [...] was facing.  Defendant's sentence must be reversed because the trial court misapplied the aggravating and mitigating factors, expressed confusion regarding the law pertaining to possible sentencing ranges, minimum terms, and merger, and because the sentence was excessive.  **CONCLUSION**
[directive] 2.  Èske w konprann ke le fèt dèske ou plede koupab de akizasyon sa yo tribinal la oblije [Wi/Yes]  [Non/No] enpoze yon tèm de lane de libète sou sipèvizyon ka va komanse osito ou finn pije santans la nan prizon?  Premye Degre Tèm Libète Kondisyonèl sou Sipèvizyon - 5 lane Dezyèm Degre Tèm Libète Kondisyonèl sou Sipèvizyon - 3 lane
[brief] “So, you respond on the 16th and the date stamp is for the 17th, right?” asked the prosecutor.  “Correct,” answered [...].  (1T95-4 to 6).  Because [...] viewed and downloaded the surveillance video on July 16, and because he testified that the events depicted in the video he viewed in court were the same events that were depicted in the video he viewed at the store, those events could not have occurred on July 17.
[brief] *6  In opposition, [...] contends that it has since produced all data from [...]’s cell phone and computer, except for privileged communications, from July 1, 2013 to date.  See R. Doc. 121, p. 1.  It also contends that it is unsure why [...] was unable to obtain an uncorrupted image of Hains’ phone, as no issue with the imaging of the phone was reported until approximately three months after the initial image collection was performed.  See R. Doc. 121, p. 7.  Thus it contends that it should not be required to produce information (1) which it has already produced and (2) which is due to an error of [...]’s expert.  Id.  During oral argument, counsel for [...] represented that its expert imaged Hains’s iPhone on site, but that once he went back to the computer lab to image the files, it realized that the data was corrupted and not readable.  Counsel for [...] indicated that neither he, his client, or the IT personnel who imaged the phone knew the underlying reason why the file was corrupted.  Counsel for [...] also sites to the affidavit of [...], the forensic engineer for [...], who imaged Hains’s iPhone.  See R. Doc. 103–3, pp. 2–3.
[brief] B.  The lower court correctly rejected Appellants’ attempt to rely on the layperson testimony of the Department employee to argue overbreadth of the DACCA.  In their Statement of Facts and throughout their brief, Appellants repeatedly present a layperson’s opinion about the meaning of DACCA as fact.  (Ab10-14).  Specifically, on February 15, 2023, Appellants deposed [...], Chief of Consumer Finance Operations of the [...].  (Pa47).  Appellants then presented his testimony as a legally binding legal opinion of statutory interpretation on Respondents.  The trial judge correctly disregarded Mr. Wegener’s layperson opinion that was “in no way legally binding on Defendants. ” (2T8:15-18; 8:23-9:2).  This court should likewise disregard this testimony.  Appellants cite to a comment under Rule 4:14-2(c) which states that “when a subject matter designation is made . . . [a person’s] testimony will bind the organization.
[brief] Id. at 506 (remanding for resentencing “[b]ecause it is unclear … how this case would have turned out if the trial judge had applied the proper standards”).  D.  The misapplication of the Yarbough factors  The court misapplied the first Yarbough guideline as a result of which it abused its discretion in imposing consecutive terms on the manslaughter offenses.  The Yarbough Court identified six principles to guide courts in deciding whether to impose concurrent or consecutive sentences.  The first principle states:  [T]here can be no free crimes in a system for which the punishment shall fit the crime[.]  100 N.J. at 643.  The sentencing court read this principle to hold that if it did not impose consecutive terms on the manslaughter and attempted manslaughter convictions, it “would be perceived as allowing” [...] to commit a crime “without being punished. ”  (30T 60-25 to 61-3)  The court was mistaken.  The *Yarbough* axiom that there are “no-free crimes” “does not require the court automatically to impose consecutive sentences for multiple offenses.
[brief] Moreover, the testimony established that neither [...], nor [...] witnessed the actual murders.  [...] raced out of the [...] house as soon when she heard the “pop” of the gun and heard her sister [...] grunt from upstairs.  (7T142-14 to 147-4).  [...] had visited his family on New Year’s Eve, but left the house before the murders.  (9T196-16 to 199-1).  The AP thus properly raised the inference that, unlike [...], and [...] who both witnessed the murders, [...]’s and [...]’s perceptions of defendant were unchanged by the horrific events.
[brief] *Ibid.*  In *Bey*, *supra*, the Court held that “the securing and preservation of an impartial jury goes to the very essence of a fair trial. ”  *Id.* at 75.  The Court further held that the “conclusions to be reached [by the jurors] in a case [must] be induced only by evidence and argument in open court, and not by outside influence....”  *Ibid.*  While we agree with the State that not every stray comment by a judge is a ground for reversal, *State v. Tilghman*, 385 N.J.Super. 45, 60-62 (App.Div.2006); *State v. Salaam*, 225 N.J.Super. 66, 75-76 (App.Div.), certif. denied, 111 N.J. 609 (1988); *State v. Meneses*, 219 N.J.Super. 483, 489 (App.Div.1987), certif. denied, 110 N.J. 156 (1988), there are certainly instances where comments of a trial judge are so improper as to create reversible error.
[brief] Appellant’s chief claim in Point VII is that [...] erred by issuing a purportedly “critical finding” regarding the Township’s site development plan ordinance.  In order to address this claim it is appropriate to view the trial court’s finding in context.  In finding the Resolution arbitrary, capricious, and unreasonable, the trial court chiefly relied on four key legal rulings: (1) that its “review of the entirety of the record in connection with the school’s supplemental application . . . was again tainted by the Board’s lack of jurisdiction” (Aa278), (2) that the Board had applied the burden of proof to the wrong party (Aa280), (3) that the “Board exceeded its statutory authority by acting as an enforcement agency” (Aa281), and (4) that both Appellant and the Board were collaterally estopped from contending that there was “a lack of evidence in the record that the Sixth Street Lot had ever been utilized for a parking lot” (Aa282-Aa283).
[brief] Defendant argues that the trial court erred by failing to issue an adverse inference charge against the State for purportedly failing to disclose “enhanced” surveillance video of the shooting as well as other allegedly exonerating evidence.  (Pb23).  Defendant offers no legal or factual support for this claim.  Because defendant did not request an adverse inference charge, the trial court’s decision to refrain from issuing same is reviewed for plain error and must be disregarded unless “it is of such a nature as to have been clearly capable of producing an unjust result.
[brief] (1T at 22:4 to 23:18).  In opposing [...]’s appeal, [...] ignores the plain language of the Policy.  The Policy issued to [...] states:  [t]his insurance does not apply to:  17.  Personal And Advertising Injury caused by or at the direction of the insured with knowledge that the act would violate the rights of another and would inflict personal and advertising injury.  (Da182)  The word “allege” does not appear in the exclusion whereas other exclusions in the Policy explicitly incorporate “allegations. ”  For example, under the Pollution exclusion, the Policy specifically provides: ‘Bodily injury’ or ‘property damage’ arising out of the actual, alleged or threatened discharge, dispersal, seepage, migration, spill, release or escape of ‘pollutants. ’ (Da179) (emphasis added).  Under the Aircraft, Auto or Watercraft exclusion, the Policy expressly provides: “This exclusion applies even if the claims allege negligence or other wrongdoing .  . . .” (Da180) (emphasis added).  Other exclusions in the Policy also include the word “allege” or “allegations. ” (See Da181, Provision 11(k); Da183, Provisions 19, 20).  Here, [...] is attempting to apply the Personal and Advertising Injury exclusion based on allegations of tortious interference alleged by [...] in the Underlying Action.  That exclusion, however, does not include “allegations. ”  Thus, the Policy exclusion requires [...] in this Declaratory Judgment Action to actually prove that the injury complained of by [...] was “caused by or at the direction of” [...] and that [...] knew “the act would violate the rights of another and would inflict personal and advertising injury. ”  In addition, [...] and [...] have never proved that [...] committed tortious interference, and a judgment was never entered against [...] in the Underlying Action despite six years of litigation and discovery.  Currently, the tortious interference claim against [...] remains unproven.  Moreover, separate and apart from what the Policy exclusion states, New Jersey law required the trial court to make findings regarding [...]’s subjective intent when intent-based exclusions are at issue.
[brief] ...........................................  20 - **Brill v. Guardian Life Ins. Co. of Am.,** - 142 N.J. 520 (1995)  .................................................................. 16 - **Burlington North R. v. Hyundai Merchant Marine,** - 63 F.3d 1227 (1995)  ..................................................................  23 - **Culver v. Insurance Co. of North America,** - 115 N.J. 451 (1989)  ..................................................................  20 - **Cummings v. Bahr,** - 295 N.J. Super. 374 (App. Div. 1996)  ...........................................  15, 16 - **Cutler v. Dorn,** - 196 N.J. 419 (2008) ..................................................................  25 - **DMV v. Caruso,** - 291 N.J. Super. 430 (App. Div. 1996) ...........................................  16 - **Ettin v. Ava Truck Leasing Inc.,** - 53 N.J. 463 (1969)  ..................................................................  23 - **G.M. v. R.M.,** - 2018 N.J. Super. Unpub. LEXIS 253, at *19 (App. Div. Feb. 2, 2018)  ............  19 - **Iliadis v. Wal-Mart Stores, Inc.,** - 191 N.J. 88 (2007)  ..................................................................  16 - **In re Declaratory Judgment Actions filed by Various Municipalities, Cty. of Ocean,** - 446 N.J. Super. 259 (App. Div. 2016) ...........................................  16 - **In re Estate of Dawson,** - 136 N.J. 1 (1994) .................................................................. 22  In re Estate of Gabrellian, 372 N.J. Super. 432 (App. Div. 2004) ......................................................... 13, 23 Interchange State Bank v. Rinaldi, 303 N.J. Super. 239 (App. Div. 1997) ..........................................................
[brief] B.  Disqualification of [...] Is Proper.  The Court’s decision to disqualify [...] was not based solely on RPC 1.9(c) as represented by Appellants.  The Court considered RPC 1.9(a) and (c) stating: RPC 1.9 is the focus of the inquiry here.  There are multiple parts to 1.9 that the Court can point to.  The focus primarily has been 1.9(a), A lawyer who has represented a client in a matter shall not thereafter represent another client in the same or substantially related matter in which that client’s interests are materially adverse to the interests of the former client unless the former client gives informed consent.  And there is part (b), but there is also part (c).  Part (c) reads, A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter; (1) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client, or when the information has become generally known.  (T22:5 to T23:1-5).  As previously stated, the court took notice of the fact that the [...] law firm represented not only [...], but more importantly to the Court, it had represented [...], Individually which the court considered to be a “more personal relationship” when considering RPC 1.9 (a) and (c).  (T23:6-16).  The court also noted that the attorney-client privilege is within the purview of [...] to assert.  (T25:20-24).  It also found that the information contained in the Certification met the requirements warranting disqualification under 1.9.  (T26:1- 11).  The Court concluded that Rule 1.10 operates to disqualify the firm if [...]’s knowledge would disqualify him.  (T26:22-23).  Thus, the court performed the proper analysis it is required to perform and determined that under RPC 1.9(a), RPC 1.9(c) and RPC 1.10, disqualification was proper.
[brief] While that easement litigation was ongoing, in November 2016 the School filed an Application to the Zoning Board as per N.J.S.A. 40:55D-70(a) for an Interpretation as to whether the 1972 School Expansion Resolution and Site Plan provided for or allowed for the use of Lot 5 for off-site parking by synagogue staff/attendees or precluded such parking.  The Zoning Board on December 4, 2017 declined jurisdiction to render an Interpretation of the 1972 Site Plan as per a Resolution dated January 8, 2018.  [...] filed a Complaint challenging that Board deferral.  By Summary Judgment, the Law Division ([...]) on August 17, 2018 affirmed that deferral, finding the Zoning Board could properly find it had no jurisdiction to interpret the 1972 School Site Plan approval (Da82-88).
[brief] C.  Plaintiff’s Allegations That Other Staff Did Not Want To Work With Her Was Not An Adverse Employment Action.  Plaintiff further argues she was subjected to retaliation due to “a hostile environment where nobody wanted to work with her. ” (AB at p. 20).  Plaintiff’s complaints, however, are akin to “a bruised ego or injured pride on the part of the employee,” which are not actionable employment consequences under CEPA.  See Klein, 377 N.J. Super. at 46.  Moreover, “generally, harassment alone is not enough. ”  Cortes v. Univ. of Med. & Dentistry, 391 F. Supp. 2d 298, 312 (D.N.J. 2005) (citing Shepherd v. Hunterdon Develop. Ctr., 336 N.J. Super. 395, 419 (App. Div. 2001) rev’d in part, 174 N.J. 1 (2002)).7  POINT III
[brief] [William M. Cox, New Jersey Zoning and Land Use Administration, § 6-3.3 at 143 (Gann 2008)]  Wilson, 405 N.J. Super. at 198.  Neither of these positive-criteria elements was supported by competent evidence.  First, [...]'s "prevailing setback" testimony (1T38-2 to 1T38-9) established that the setback was not specific to the Applicant's lot.  The testimony was that other properties long Ocean Terrace and Porter Avenue had deficient setbacks, and, therefore, this property should too.  Not only do the setback variances lack site specificity, by [...]'s logic the exception to Sec. 246-44A(1)(a) ought to be the rule because other property owners have violated the 10-foot minimums.  [...] urged that parking lots "leave a lot to be desired from an architectural or aesthetic standpoint" (1T39-22 to 1T39-23) and "are not an aesthetically pleasing improvement" (1T45-2 to 1T45-3).  The witness misunderstood the nature of flexible (c) variances.  The applicant must prove "that the purposes of the Municipal Land Use Law would be advanced by a deviation from the zoning ordinance requirement" (Wilson, 405 N.J. Super. at 198).
[brief] Id. at 534.  [...] used a novel technique and historical sources, instead of the traditional tidal mapping program, to create a series of topographical maps.  Id.  Appellants challenged the [...]’s map methodology.  Id. at 536.  The Law Division conducted a nine-month hearing to create an exhaustive administrative record consisting of 3000 pages of transcripts, 591 exhibits and competent expert testimony.  Id.  The Court affirmed the Law Division’s findings in an unreported per curiam decision, based, in part, on the technical nature of the subject matter.  Id.  No such technical questions exist here.  The question before this Court is one of legal sufficiency.  Specifically, has the Respondent provided sufficient, legally competent evidence to support the entire decision or ultimate finding of fact.
[brief] Negligent hiring, training and supervision claims are not forms of vicarious liability, but rather are based on the direct fault of an employer.  *G.A.H. v. K.G.G.*, 238 N.J. 401, 415 (2019).  To establish a claim for negligent hiring, the plaintiff must show (1) that the employer “knew or had reason to know of the particular unfitness, incompetence or dangerous attributes of the employee and could reasonably have foreseen that such qualities created a risk of harm to other person” and (2) “that, through the negligence of the employer in hiring the employee, the latter’s incompetence, unfitness or dangerous characteristics proximately caused the injury.
[brief] Here, the trial court’s orders satisfy all of the prerequisites of finality.  The April 6, 2023 Final Judgment against [...] required [...] to pay treble the amount of $475,623.87 for environmental restoration costs incurred and to be incurred, $75,000 as a penalty, and to reimburse [...] its attorney’s fees and costs within 180-days of the order.  (PPCIa369-71).  This order complied with Rule 4:42-2(a) because (1) the trial court completely adjudicated the claims against [...] regarding its ERA liability under the Spill Act, Counts 1 and 2 of the Second Amended Complaint, which were all the counts alleged against [...]; (2) the trial court completely adjudicated all the rights and liabilities asserted in the litigation as to [...] (Counts 1 and 2); and (3) the trial court awarded payment to [...] as part of a summary judgment motion.
[brief] Signage.  Signage requirements for the Senior Housing - 1 Overlay Zone shall be consistent with the generally applicable sign regulations set forth in Article XXVII, Signs, as well as the specific sign regulations for signs permitted in the AH and PURD Zone Districts as set forth at § 230-215.  E.  Historic preservation requirements.  Development in any portion of the Senior Housing - 1 Overlay Zone that is identified on Schedule G, Locally Designated Historic Sites and Districts, which is included in Chapter 230 as Attachment 9, shall adhere to the applicable Township regulations relating to historic preservation, including Chapter 8, Article V, Historic Preservation Review Commission, and Article XXV, Historic Districts and Historic Sites, of this Chapter.  If a historic structure is to be retained on the site, same shall be limited to a nonresidential use, such as a historical museum or exhibition center open to the public, or a use accessory to the residents of the adult community housing development and their guests.  Residential use of any historic structure to remain shall be prohibited.