NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1806-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEVIN M. COLVELL,
Defendant-Appellant. ________________________
Submitted September 16, 2025 – Decided September 26, 2025
Before Judges Rose and Torregrossa-O'Connor.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 2022-02.
Kevin M. Colvell, appellant pro se.
Janetta D. Marbrey, Mercer County Prosecutor, attorney for respondent (Juda Babuschak Opacki, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Kevin M. Colvell appeals pro se from a portion of a November
27, 2023 Law Division order rendering moot "the remaining issues" raised in
his municipal appeal. Those issues included: the legality of the complaint
warrants; "whether attaching conditions to a dismissal without prejudice [wa]s
lawful"; "the prosecution's failure to produce the requested discovery"; "the
municipal court order does not reflect the transcript record"; "violations of
constitutional and other rights"; "judicial inefficiency"; and "ineffective
assistance of counsel." Not surprisingly, defendant does not challenge the
portion of the same order dismissing with prejudice two complaint-warrants and
expunging the underlying charges against him.
In his merits brief, defendant now raises the following points for our
consideration:
I. DEFENDANT HAS THE RIGHT TO REQUEST REVIEW OF PART OF A FINAL SUPERIOR COURT DECISION. (Not Raised Below)
II. APPELLATE STANDARD OF REVIEW FOR THE 11/27/2023 LAW DIVISION DECISION. (Not Raised Below)
III. THE NEW JERSEY COURTS FAILED TO FOLLOW THEIR GUIDE OF THE JUDICIAL PROCESS, DURING DEFENDANT'S CASE MATTER. ([Partially Raised Below])
A-1806-23 2 IV. THE LAW DIVISION ERRED BY NOT SPECIFICALLY ANSWERING THE APPELLATE REMAND ORDER, AS A LEGAL ISSUE.
V. THE LAW DIVISION MADE ALL MATTERS "MOOT" REGARDING THE 12/07/2022 [HIGHTSTOWN MUNICIPAL COURT] TRANSCRIPT LEAVING DISCREPANCIES UNADDRESSED.
VI. THE LAW DIVISION 11/27/2023 ORAL DECISION WAS NOT LEGALLY CORRECT, INJUSTICE TO DEFENDANT AND LATER CONTRADICTED BY THE AMPLIFICATION.
VII. THE LAW DIVISION AMPLIFICATION PROVIDED NEW LEGAL AND PROCEDURAL INFORMATION AND CONTRADICTS THE PREVIOUS ORAL DECISION RENDERED ON 11/27/23.
VIII. WHEN THE LAW DIVISION ERRED IN ITS DECISION DEFENDANT WAS DENIED FUNDAMENTAL FAIRNESS RIGHTS.
On reply, defendant raises the following additional points:
I. THE STATE'S APPELLATE BRIEF AND COVER CONTAIN FALSE INFORMATION THAT MISLEADS THE APPELLATE DIVISION.
II. THE STATE'[S] COUNTERSTATEMENT OF FACTS LEADS TO ILLEGAL CONCLUSIONS.
III. [DEFENDANT] SUFFERED MANIFEST INJUSTICE AND THE APPELLATE DIVISION MUST DECIDE THE LAWFULNESS.
A-1806-23 3 IV. THE STATE CANNOT CLAIM MOOTNESS FOR LEGAL ISSUES THAT WERE UNADDRESSED.
V. THE PROSECUTOR'S FAILURE TO ABIDE BY THE RULES OF PROFESSIONAL CONDUCT HAVE ADVERSELY AFFECTED THIS CASE AND ITS TIMELY RESOLUTION. [(Not Raised Below)]
Because we agree the November 27, 2023 Law Division order dismissing the
municipal complaint warrants with prejudice rendered moot defendant's
remaining issues, we affirm.
I.
The facts underlying defendant's criminal charges are not pertinent to this
appeal. We summarize instead the protracted procedural history from the record
before the Law Division. See State v. Palma, 219 N.J. 584, 591-92 (2014)
(recognizing "appellate 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 '"
(quoting State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001))).
In May 2019, defendant was charged by complaint-warrant with fourth-
degree stalking, N.J.S.A. 2C:12-10(b), and harassment, N.J.S.A. 2C:33-4(a), a
petty disorderly persons offense, for conduct alleged by his Hightstown
neighbor. In October 2019, defendant was charged in a second complaint-
A-1806-23 4 warrant with fourth-degree contempt, N.J.S.A. 2C:29-9(a)(1), and harassment
for allegedly contacting the same neighbor.
In January 2020, defendant was charged in two separate Mercer County
indictments with stalking and contempt charges emanating from the underlying
complaint-warrants. In November 2021, a Law Division judge granted the
State's motion to dismiss the offenses charged in the indictments and remanded
to the Hightstown Municipal Court the petty disorderly harassment offenses
charged in the complaint-warrants.
In December 2021, defendant pled not guilty to the harassment charges
before the municipal court and thereafter was assigned counsel. The following
year, on December 7, 2022, the municipal court held a hearing during which
defendant appeared telephonically with assigned counsel. 1
At the start of the hearing, defense counsel advised the court that the State
agreed to dismiss the harassment charges without prejudice and relist the matter
in one year. On the relisted date, the charges would be dismissed with prejudice
and defendant could apply for expungement of the charges, provided defendant:
1 Defense counsel entered his appearance, but it is unclear from the record whether he appeared telephonically. The prosecutor did not enter an appearance on behalf of the State; it is unclear from the record whether a prosecutor appeared at the hearing. A-1806-23 5 (1) refrained from contact with the alleged victim; and (2) did not incur new
charges. Defendant acknowledged the terms of the disposition and confirmed
he "d[id]n't object to the resolution."
However, when asked whether he understood the disposition, defendant
stated, "this is not supposed to be a plea bargain, so I don't understand why
there's [sic] restrictions placed on me." The following exchange ensued:
[DEFENSE COUNSEL]: You can't contact the alleged victim, and you can't commit any new offenses, which you have no criminal record, so that's not a problem, and then the case will become dismissed with prejudice in a year.
There are no conditions. You don't have to do any -- you don't have to report to Probation or anything, there's no plea agreement. It's going to get dismissed, it's just going to be in a year.
[DEFENDANT]: Okay.
[DEFENSE COUNSEL]: And it's actually getting dismissed today. It's going to become permanent in one year.
[DEFENSE COUNSEL]: And the only way it can get reopened is if you contact the alleged victim, or you commit a new offense, but again you've had no problems for two years [since the alleged incident dates], so it's going to be fine for that year, all right?
THE COURT: Do you understand, sir?
A-1806-23 6 [DEFENDANT]: Uh, I do.
THE COURT: And do you accept these terms?
[DEFENDANT]: Uh, yes.
That same day the municipal court issued a memorializing order.
Defendant thereafter appealed to the Law Division. On January 4, 2023,
the trial court issued an order dismissing defendant's appeal as moot. In the
order, the trial court referenced the December 7, 2022 municipal court dismissal
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1806-23
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEVIN M. COLVELL,
Defendant-Appellant. ________________________
Submitted September 16, 2025 – Decided September 26, 2025
Before Judges Rose and Torregrossa-O'Connor.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 2022-02.
Kevin M. Colvell, appellant pro se.
Janetta D. Marbrey, Mercer County Prosecutor, attorney for respondent (Juda Babuschak Opacki, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Kevin M. Colvell appeals pro se from a portion of a November
27, 2023 Law Division order rendering moot "the remaining issues" raised in
his municipal appeal. Those issues included: the legality of the complaint
warrants; "whether attaching conditions to a dismissal without prejudice [wa]s
lawful"; "the prosecution's failure to produce the requested discovery"; "the
municipal court order does not reflect the transcript record"; "violations of
constitutional and other rights"; "judicial inefficiency"; and "ineffective
assistance of counsel." Not surprisingly, defendant does not challenge the
portion of the same order dismissing with prejudice two complaint-warrants and
expunging the underlying charges against him.
In his merits brief, defendant now raises the following points for our
consideration:
I. DEFENDANT HAS THE RIGHT TO REQUEST REVIEW OF PART OF A FINAL SUPERIOR COURT DECISION. (Not Raised Below)
II. APPELLATE STANDARD OF REVIEW FOR THE 11/27/2023 LAW DIVISION DECISION. (Not Raised Below)
III. THE NEW JERSEY COURTS FAILED TO FOLLOW THEIR GUIDE OF THE JUDICIAL PROCESS, DURING DEFENDANT'S CASE MATTER. ([Partially Raised Below])
A-1806-23 2 IV. THE LAW DIVISION ERRED BY NOT SPECIFICALLY ANSWERING THE APPELLATE REMAND ORDER, AS A LEGAL ISSUE.
V. THE LAW DIVISION MADE ALL MATTERS "MOOT" REGARDING THE 12/07/2022 [HIGHTSTOWN MUNICIPAL COURT] TRANSCRIPT LEAVING DISCREPANCIES UNADDRESSED.
VI. THE LAW DIVISION 11/27/2023 ORAL DECISION WAS NOT LEGALLY CORRECT, INJUSTICE TO DEFENDANT AND LATER CONTRADICTED BY THE AMPLIFICATION.
VII. THE LAW DIVISION AMPLIFICATION PROVIDED NEW LEGAL AND PROCEDURAL INFORMATION AND CONTRADICTS THE PREVIOUS ORAL DECISION RENDERED ON 11/27/23.
VIII. WHEN THE LAW DIVISION ERRED IN ITS DECISION DEFENDANT WAS DENIED FUNDAMENTAL FAIRNESS RIGHTS.
On reply, defendant raises the following additional points:
I. THE STATE'S APPELLATE BRIEF AND COVER CONTAIN FALSE INFORMATION THAT MISLEADS THE APPELLATE DIVISION.
II. THE STATE'[S] COUNTERSTATEMENT OF FACTS LEADS TO ILLEGAL CONCLUSIONS.
III. [DEFENDANT] SUFFERED MANIFEST INJUSTICE AND THE APPELLATE DIVISION MUST DECIDE THE LAWFULNESS.
A-1806-23 3 IV. THE STATE CANNOT CLAIM MOOTNESS FOR LEGAL ISSUES THAT WERE UNADDRESSED.
V. THE PROSECUTOR'S FAILURE TO ABIDE BY THE RULES OF PROFESSIONAL CONDUCT HAVE ADVERSELY AFFECTED THIS CASE AND ITS TIMELY RESOLUTION. [(Not Raised Below)]
Because we agree the November 27, 2023 Law Division order dismissing the
municipal complaint warrants with prejudice rendered moot defendant's
remaining issues, we affirm.
I.
The facts underlying defendant's criminal charges are not pertinent to this
appeal. We summarize instead the protracted procedural history from the record
before the Law Division. See State v. Palma, 219 N.J. 584, 591-92 (2014)
(recognizing "appellate 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 '"
(quoting State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001))).
In May 2019, defendant was charged by complaint-warrant with fourth-
degree stalking, N.J.S.A. 2C:12-10(b), and harassment, N.J.S.A. 2C:33-4(a), a
petty disorderly persons offense, for conduct alleged by his Hightstown
neighbor. In October 2019, defendant was charged in a second complaint-
A-1806-23 4 warrant with fourth-degree contempt, N.J.S.A. 2C:29-9(a)(1), and harassment
for allegedly contacting the same neighbor.
In January 2020, defendant was charged in two separate Mercer County
indictments with stalking and contempt charges emanating from the underlying
complaint-warrants. In November 2021, a Law Division judge granted the
State's motion to dismiss the offenses charged in the indictments and remanded
to the Hightstown Municipal Court the petty disorderly harassment offenses
charged in the complaint-warrants.
In December 2021, defendant pled not guilty to the harassment charges
before the municipal court and thereafter was assigned counsel. The following
year, on December 7, 2022, the municipal court held a hearing during which
defendant appeared telephonically with assigned counsel. 1
At the start of the hearing, defense counsel advised the court that the State
agreed to dismiss the harassment charges without prejudice and relist the matter
in one year. On the relisted date, the charges would be dismissed with prejudice
and defendant could apply for expungement of the charges, provided defendant:
1 Defense counsel entered his appearance, but it is unclear from the record whether he appeared telephonically. The prosecutor did not enter an appearance on behalf of the State; it is unclear from the record whether a prosecutor appeared at the hearing. A-1806-23 5 (1) refrained from contact with the alleged victim; and (2) did not incur new
charges. Defendant acknowledged the terms of the disposition and confirmed
he "d[id]n't object to the resolution."
However, when asked whether he understood the disposition, defendant
stated, "this is not supposed to be a plea bargain, so I don't understand why
there's [sic] restrictions placed on me." The following exchange ensued:
[DEFENSE COUNSEL]: You can't contact the alleged victim, and you can't commit any new offenses, which you have no criminal record, so that's not a problem, and then the case will become dismissed with prejudice in a year.
There are no conditions. You don't have to do any -- you don't have to report to Probation or anything, there's no plea agreement. It's going to get dismissed, it's just going to be in a year.
[DEFENDANT]: Okay.
[DEFENSE COUNSEL]: And it's actually getting dismissed today. It's going to become permanent in one year.
[DEFENSE COUNSEL]: And the only way it can get reopened is if you contact the alleged victim, or you commit a new offense, but again you've had no problems for two years [since the alleged incident dates], so it's going to be fine for that year, all right?
THE COURT: Do you understand, sir?
A-1806-23 6 [DEFENDANT]: Uh, I do.
THE COURT: And do you accept these terms?
[DEFENDANT]: Uh, yes.
That same day the municipal court issued a memorializing order.
Defendant thereafter appealed to the Law Division. On January 4, 2023,
the trial court issued an order dismissing defendant's appeal as moot. In the
order, the trial court referenced the December 7, 2022 municipal court dismissal
without prejudice.
We denied defendant's ensuing pro se motion for leave to appeal. State v.
Colvell, No. AM-0262-22 (App. Div. Mar. 10, 2023) (slip op. at 1). Citing Rule
3:23-1, we noted defendant "must first seek review by appealing to the Law
Division." Ibid.
Defendant moved for reconsideration. Pertinent to this appeal, we denied
his motion for leave to appeal from the Law Division's January 4, 2023 order
without prejudice. State v. Colvell, No. AM-0262-22 (App. Div. Apr. 12, 2023).
We explained:
The procedural posture of this motion for leave to appeal is far from clear. The notice of motion for leave to appeal d[id] not identify the order from which leave to appeal [wa]s sought, but the supporting brief identifie[d] a municipal court order entered December 7, 2022. The motion for reconsideration, for the first
A-1806-23 7 time, addresses the entry of the Law Division order. The motion for leave to appeal to the Appellate Division should have been taken from the Law Division's order of January 4, 2023. The matter is remanded to the Law Division to reconsider its dismissal order, specifically whether attaching conditions to a dismissal without prejudice is lawful . . . .
[Ibid.]
On remand, the trial court held oral argument. Self-represented at the
November 27, 2023 hearing, defendant sought dismissal of his charges with
prejudice but contended "the dismissal must be for the right reasons and not
some concocted reason by the prosecutor." Noting defendant would be eligible
for dismissal of the charges in ten days, on December 7, 2023, the prosecutor
did not oppose the dismissal with prejudice because defendant "earned it."
Citing the December 7, 2022 colloquy among defendant, his attorney, and the
municipal court, the prosecutor asserted defendant agreed to the dismissal
without prejudice and conditions and, as such, "there [wa]s no violation of
fundamental fairness."
Immediately following argument, the trial court issued an oral decision,
granting defendant's application, dismissing the complaints with prejudice, and
ordering expungement of the charges under N.J.S.A. 2C:52-6. Accordingly, the
A-1806-23 8 court found defendant's remaining issues were rendered moot. At the conclusion
of the hearing, the court issued a memorializing order. This appeal followed.
The trial court thereafter filed an amplification of its November 27, 2024
oral decision. See R. 2:5-1(d). In its decision, the court expressly concluded
"there was no basis in fact or law for the [municipal court] judge to impose
conditions on the dismissal."
II.
Well-settled principles guide our review. On appeal from a municipal
court, the Law Division's review is "de novo on the record below." R. 3:23-
8(a)(2). On a subsequent appeal from the Law Division to this court, our review
is limited to determining only whether the findings made by the Law Division
judge "could reasonably have been reached on sufficient credible evidence
present in the record." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State
v. Johnson, 42 N.J. 146, 162 (1964)). "However, where issues on appeal turn
on purely legal determinations, our review is plenary." State v. Monaco, 444
N.J. Super. 539, 549 (App. Div. 2016).
"Mootness is a threshold justiciability determination rooted in the notion
that judicial power is to be exercised only when a party is immediately
threatened with harm." Stop & Shop Supermarket Co. v. Cnty. of Bergen, 450
A-1806-23 9 N.J. Super. 286, 291 (App. Div. 2017) (quoting Betancourt v. Trinitas Hosp.,
415 N.J. Super. 301, 311 (App. Div. 2010)). An issue is considered "moot when
'the decision sought in a matter, when rendered, can have no practical effect on
the existing controversy.'" State v. Davila, 443 N.J. Super. 577, 584 (App. Div.
2016) (quoting Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58,
(App. Div. 2006)). "When a party's rights lack concreteness from the outset or
lose it by reason of developments subsequent to the filing of suit, the perceived
need to test the validity of the underlying claim of right in anticipation of future
situations is, by itself, no reason to continue the process." Ibid. (quoting JUA
Funding Corp. v. CNA Ins./Cont'l Cas. Co., 322 N.J. Super. 282, 288 (App. Div.
1999)). Occasionally, however, "courts will consider the merits of an issue
notwithstanding its mootness where significant issues of public import appear."
Davila, 443 N.J. Super. at 589.
We have considered defendant's contentions in view of these governing
legal principles and conclude they lack sufficient merit to warrant discussion in
a written opinion. R. 2:11-3(e)(2). We affirm substantially for the reasons set
forth in the trial court's amplification statement. We add only, defendant raises
no issue of public importance requiring us to address an issue that can have no
practical effect. Further, to the extent defendant raises issues on reply that were
A-1806-23 10 not addressed in his initial merits brief, those issues are deemed waived. See
L.J. Zucca, Inc. v. Allen Bros. Wholesale Distribs. Inc., 434 N.J. Super. 60, 87
(App. Div. 2014); see also State v. Smith, 55 N.J. 476, 488, (1970).
Affirmed.
A-1806-23 11