State of New Jersey v. Taladeen Ross

116 A.3d 1074, 441 N.J. Super. 120

• Court: New Jersey Superior Court Appellate Division
• Decided: June 10, 2015
• Docket: A-3026-13 A-5460-13
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3026-13T4 A-5460-13T4

STATE OF NEW JERSEY,

Plaintiff, APPROVED FOR PUBLICATION

v. June 10, 2015

TALADEEN ROSS, DWAYNE JOHNSON, APPELLATE DIVISION KENNETH ROBINSON, PEDRO VICKERS, PAUL STATEN, CHAD BUTLER, JR., JAMIL ANTHONY, JAAMIR HILL, SIDNEY WILLIAMS, TEREAK BUTLER, SHARNA ROSS, MAURICE FIELDS, JASHIRE REID, ZAIRE FRANKLIN-SHERMAN, NADRELL MCMILLAN, QUAADIR HAGOOD, JAMAR HILL, DESIRE ROBINSON, DEVIN GARDNER, DARNELL RICKETTS, DYLAN FREER, SHANIQUA DOYLE, APRIL THOMPSON, DARRELL MORRISON and TANEJA OLIVER,

Defendants-Respondents.

_______________________________________________________

Submitted May 19, 2015 – Decided June 10, 2015

Before Judges Fisher, Accurso and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 13-06-870.

Thomas G. Kelso, Middlesex County Counsel, attorney for appellants The Middlesex County Adult Correction Center and County of Middlesex (Benjamin D. Leibowitz, Senior Deputy County Counsel, on the briefs). Joseph E. Krakora, Public Defender, attorney for respondent Public Defender (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

Yonta Law, attorneys for respondent Maurice Fields; Jack Venturi & Associates, attorneys for respondent Taladeen Ross; Abdelhadi & Associates, attorneys for respondent Sharna Ross; Law Offices of William M. Fetky, attorneys for respondent Chad Butler; Anderl & Oakley, attorneys for respondent Zaire Franklin-Sherman; Kenneth Goodman, attorney for respondent Paul Staten; Kelly Anderson Smith, attorney for respondent Quaadir Hagood; Rodger J. Wolf, attorney for respondent Jamar Hill; Michael A. Priarone, attorney for respondent Nadrell McMillan; David R. Meiswinkle, attorney for respondent Jamil Anthony; Michael R. Napolitano, attorney for respondent Jaamir Hill; and Raymond P. Morasse, attorney for respondent Pedro Vickers, join in the brief of respondent Public Defender.

The opinion of the court was delivered by

FISHER, P.J.A.D.

During the pretrial stage of this criminal prosecution, the

trial judge entered orders directing the County of Middlesex to

provide the means by which incarcerated defendants could accept,

access and examine electronic discovery. Although we share the

County's misgivings about the manner in which these orders were

imposed, we also agree with the Public Defender that the issues

have been rendered moot because the County has complied with the

orders in question.

2 A-3026-13T4 We briefly outline the case's procedural history.

Indictment No. 13-06-870, which was handed up by the grand jury

on June 25, 2013, charged twenty-five defendants in seventy-nine

counts. At the time the orders in question were entered, many

of the defendants were residing in the Middlesex County Adult

Correction Center (MCACC). A description of the alleged

offenses is not required.

On November 13, 2013, the Public Defender filed a motion to

compel the MCACC to permit defendants access to voluminous

discovery through electronic means. The motion was served on

MCACC's warden, county counsel, an assistant county prosecutor,

and the Commissioner of the New Jersey Department of

Corrections. The motion was later amended to clarify that the

Public Defender also sought an order that would require the

MCACC: to permit the incarcerated defendants to accept

electronic discovery from their counsel; to provide the

incarcerated defendants with "individual personal access to a

computer or other electronic device" that would allow access to

electronic discovery "in an appropriate[] confidential setting";

to permit defendants "to view their electronic discovery outside

the presence of defense counsel"; and to bear the expense of

providing electronic equipment and access for viewing discovery.

The County opposed the motion and cross-moved for an order

3 A-3026-13T4 directing that the Public Defender pay for and purchase the

necessary hardware, software and related items if the Public

Defender's motion were to be granted.

The trial judge granted the Public Defender's motion for

reasons set forth in a written opinion. In his March 7, 2014

order, the judge compelled the MCACC to permit defendants access

to electronic discovery and directed the MCACC to submit a

proposal for providing access; the order contained no specific

reference to the County's cross-motion to compel the Public

Defender to bear the cost. On March 17, 2014, after

unsuccessfully objecting to the judge's omission of a specific

ruling on the cross-motion, the County filed a notice of appeal.

Out of concern that the March 7 order may not have been a final

order, the County later moved for leave to appeal, which we

granted on May 14, 2014.

Notwithstanding the pending appeal, which divested the

trial court of jurisdiction to do anything other than enforce

the order, see R. 2:9-1(a), the judge conducted further

proceedings regarding the Public Defender's motion. And,

despite objecting to the procedures and despite being denied a

stay in the trial court, the County never sought our

intervention; instead, the County complied with the March 7

order by submitting the required proposal.

4 A-3026-13T4 The judge conducted a case management conference on June 6,

2014, during which arrangements for an evidentiary hearing

regarding the County's proposal were discussed. At that time

the judge entered another order, this time directing the County

to "purchase and deliver to each defendant an electronic device

formatted in accordance with the defendants' needs for viewing

all necessary discovery and the reasonable security concerns of

the jail, and [to] permit the defendants the reasonable

opportunity to begin viewing their electronic discovery." The

County moved for leave to appeal the June 6 order; we granted

that motion as well.1

The County urges a number of procedural problems in

challenging the validity of the orders under review. The County

is, in fact, correct in a number of respects. First, the

proceedings in question, which were instituted by the filing of

a motion in this criminal matter, clearly sought relief of a

civil nature against the County and others who were, quite

obviously, not parties to the criminal proceeding over which the

judge presided. Although the nature of the criminal action

authorized the judge to enter appropriate discovery orders

binding on the State and on the defendants, the judge

erroneously reached beyond the parameters of the case by

1 The two appeals were later consolidated.

5 A-3026-13T4 ordering the County – a non-party – to provide equipment by

which discovery could be received and read by defendants. The

judge should have dismissed the motion and relegated the Public

Defender to filing a separate civil complaint naming the

appropriate entities or individuals as defendants; by choosing

the unfortunate path taken here, the trial court never obtained

in personam jurisdiction over the County or any of the other

parties from whom relief was sought. See R. 4:4-4(a). In

short, the motion filed by the Public Defender in this action

could not (and did not) "summon" the County to appear in the

manner required by Rule 4:4-4 and the constitutional principles

upon which the Rule rests.2

We are also troubled by the fact that the trial judge

continued to engage in proceedings regarding this discovery

issue after the County filed its notice of appeal on March 17,

2014. At that moment, the trial court was deprived of

2 This is the main fallacy in the proceedings undertaken by the trial judge, and not the fact – urged by the County – that the judge was assigned to the criminal part and, therefore, could not hear what should either have been a civil or chancery matter. The Chief Justice's General Assignment Order declares that all trial judges are "temporarily assigned" to all other trial divisions. Accordingly, the fact that this judge was assigned to the criminal part was no impediment to his hearing a civil or chancery case; indeed, if the Public Defender had sought relief by separate suit, the efficient administration of justice might well have suggested the assignment of that suit to this criminal judge since he was most familiar with its substance.

6 A-3026-13T4 jurisdiction – with the limited exception of retaining the power

to enforce its orders – absent our leave. See Manalapan Realty,

L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 376 (1995). This

is so even when a notice of appeal is filed precipitously; until

an appeal is dismissed or until this court authorizes a limited

remand during the pendency of the appeal, the trial judge

remains powerless to grant additional relief. See Shimm v. Toys

from the Attic, Inc., 375 N.J. Super. 300, 304 (App. Div. 2005);

see also Waste Mgmt. of N.J., Inc. v. Morris Cnty. Mun. Utils.

Auth., 433 N.J. Super. 445, 450 (App. Div. 2013). In other

words, it is for the appellate court, not the trial court, to

determine whether an appeal has been properly lodged and, until

receiving direction from the appellate court, the trial court

must stay its hand. It is also clear that the later order was

not entered for the purpose of enforcing the earlier order under

review. The earlier order compelled the County's production of

a plan; the later order went far afield in granting additional

relief and was, therefore, void upon entry.

Notwithstanding our consternation about these procedural

flaws, we nevertheless find the appeal is moot. Rather than

seek a stay from this court, the County chose to comply with the

judge's orders by purchasing the electronic equipment and

permitting discovery to be exchanged through that equipment.

7 A-3026-13T4 There is now no ruling we can make or remedy we can impose that

would have any impact on the trial court proceedings.

Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58

(App. Div. 2006). The equipment was obtained and provided by

the County and presumably utilized by defendants. Whether we

believe that was a correct or incorrect determination will have

no practical bearing on these parties. N.J. Div. of Youth &

Family Servs. v. A.P., 408 N.J. Super. 252, 261 (App. Div.

2009). Accordingly, the consolidated appeals will be dismissed.

We would add one further comment so there is no confusion

about the future impact of the trial court orders. The judge's

decision appears to place, in the first instance, the financial

burden for the necessary equipment on the County, but we discern

from the record that the judge did not necessarily resolve the

dispute between the County and the Public Defender as to the

ultimate burden for these costs. There is no order that denies

the County's cross-motion for reimbursement from the Public

Defender; as a result, the issue went undecided for purposes of

appellate review. See Hughes v. Eisner, 8 N.J. 228, 229 (1951)

(observing that "[a]ppeals are taken from judgments and not from

opinions" and, therefore, a reviewing court will not consider an

appellant's "dissatisfaction" with a lower court's opinion).

Moreover, even if we viewed the decision as sufficient to

8 A-3026-13T4 trigger appellate review and even if that decision could be

interpreted as resolving the question of interest, we agree with

the County that the flawed framework upon which this matter has

proceeded has precluded a full and fair exposition of the issues

and the parties' arguments. We consequently conclude that the

County's claim for indemnification from the Public Defender may

be pursued in a subsequent civil action unaffected by any issue

or claim preclusion defense the Public Defender or anyone else

may assert.

The consolidated appeals are dismissed as moot.

9 A-3026-13T4