State of New Jersey v. Taladeen Ross

NOT FOR PUBLICATION WITHOUT THE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.
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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
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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.
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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.
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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.
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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.
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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
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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.
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