STATE OF NEW JERSEY v. SOYOUNG HAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5436-04T35436-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SOYOUNG HAN,

Defendant-Appellant.

_____________________________________

 

Submitted February 28, 2006 - Decided March 15, 2006

Before Judges Skillman and Payne.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. S2003-000556.

Michael S. Kimm, attorney for appellant.

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a June 13, 2005 order of the Law Division denying her motion to reinstate an appeal to that court from her conviction in the municipal court, which was dismissed on the ground that defendant failed to tender the money required to order the transcript of the municipal court proceedings. We reverse.

On September 2, 2004, defendant was found guilty in the Borough of Fort Lee Municipal Court of assault, in violation of N.J.S.A. 2C:12-1a(1). On September 3, 2004, defendant filed a notice of appeal to the Law Division. On that same day, defendant's counsel sent a letter to the Deputy Court Administrator of the municipal court ordering the transcript of the municipal court proceedings, which stated in part:

Please generate a transcript for appeal and advise me the name of the transcription agency and the amount of deposit. Please order the transcription of all prior proceedings in this matter including 9-3-04 and 8-5-04.

On October 4, 2004, the Criminal Division Manager for the Bergen County vicinage sent a letter to defendant's counsel, which stated:

The Honorable William C. Meehan, P.J.S.C. has reviewed your papers and has decided to dismiss your appeal for the following reasons:

1. Although your application did not include a Certification, on September 30, 2004, you stated to Robbie Rubin of my office that you had ordered and left a deposit for the transcript;

2. On Judge Meehan's instructions, October 4, 2004, Ms. Rubin spoke with Barbara Martinetti, Fort Lee Municipal Administrator, and she confirmed that you never left a deposit nor ordered the transcript;

An order dismissing defendant's appeal for failure to order the transcript of the proceedings in municipal court or to make the required deposit was entered that same day.

On October 6, 2004, defendant filed a motion to vacate the order dismissing her appeal. In support of the motion, defendant submitted the September 3, 2004 letter from her counsel ordering the transcript of the municipal court proceeding.

On October 19, 2004, defendant's counsel sent another letter to the Fort Lee Municipal court, which stated in part:

[Defendant] is appealing from her conviction on 9-2-04.

Please generate a transcript for appeal. Please order the transcript of all prior proceedings in this matter including 9-3-04 and 8-5-04. Enclosed is a check in the amount of $100.00 made payable to GNL Transcripts to cover the cost.

At the argument on defendant's motion to vacate the dismissal of his appeal, the court and defense counsel had the following colloquy:

THE COURT: We checked with Fort Lee and they said the transcript has not been paid for yet. And you're saying you did pay someone. How much did you pay for the transcript?

[Defense counsel]: Judge, my letter dated October 19th attaches $100.00 check to G & L Transcript. And this is exactly in accordance with the instructions given by -- by Fort Lee.

What appears to be the case is Fort Lee has a Court Administrator who was on leave for awhile and came back. And there were two Deputy Administrators. We were dealing with one of them. And I just don't know who's in charge of communications, but we're -- we're going on the basis of exactly what Fort Lee has been telling us, Judge.

So, as of October, I have here a copy of my letter and a copy of my check that's out there, and we have not had the -- the transcript returned to us, Judge.

THE COURT: Mr. Kimm, you said in one of your letters to -- that you have handled numerous Municipal Court appeals. You know you always send the check in when you ask for the transcript. Is this something new that you're doing differently or --

[Defense Counsel]: No, you don't send the check in until they give you a quotation, Judge. And that's done both here in this court -- from appeals from this Court and appeals from the Municipal Court. You submit a transcript request form and the transcription office tells you -- the -- the lawyer how much the estimated charges will be and to whom the check should be made, and at that time we cut a check.

And I've done that time and again, Judge. I'm not aware of any other procedure. I apologize if I'm missing something.

THE COURT: I've been a Superior Court Judge 11 years, a Municipal Court Judge for 13 years. So, it's been 24 years since I did any appeals, but I always would send $100.00 check or so when I order -- ordered the transcript as a deposit. You always have to do that.

[Defense Counsel]: I did --

THE COURT: And no one orders -- would give you a transcript unless you send a deposit in.

[Defense Counsel]: The -- the reason you don't do that anymore, Judge, is because the transcription office uses more than one transcript -- one transcriber to assign the work, and therefore you cannot pre-select a transcription service.

We used to do that until about 3 years ago, Judge. There used to be just one transcription service and you -- you would always include a -- a check. And that is now being discouraged. And that's the -- that's been the practice for at least the last 3 to 4 years, Judge.

At the conclusion of this colloquy, the prosecutor indicated that he had no objection to vacation of the dismissal. Accordingly, the court granted defendant's motion, and on November 30, 2004, it entered an order reinstating the appeal.

On March 9, 2005, defense counsel sent a letter to the municipal court administrator, which stated in pertinent part:

I represent [defendant] in her appeal which was filed last September.

We placed a deposit for the transcript (see attached), but we have yet to receive a transcript or any follow up. I would appreciate your review of the transcription status.

On April 4, 2005, defense counsel sent another letter to the municipal court administrator, which stated in pertinent part:

I represent [defendant] in her appeal which was filed last September.

As I previously wrote you, I placed a deposit for the transcript but I have yet to receive a transcript or any follow up. Please advise me the status of the transcription process. Since the Law Division has inquired about this matter, I must receive a response so as to advise the Law Division.

On April 12, 2005, defense counsel sent a letter to the trial court, which stated in pertinent part:

Despite my repeated requests for production of the trial transcript since October 2004, the municipal court had not responded until April 7, 2005, at which time the court administrator, named Barbara, left a message with my secretary that the transcript would not be produced because the appeal had been dismissed by Judge Meehan's order of October 4, 2004.

I was on a business trip last week, and returned to my office today. My office had posted a deposit for the transcript, and that deposit check was returned in Monday's mail.

The October 4 dismissal was superseded by your Honor's order restoring the appeal. But irrespective of whether an appeal is pending or not, the municipal court has no authority to refuse to generate a transcript, if a party will pay for the transcript. Even worse, in this case, the fact that the municipal court waited six months to say what it said on April 7 is unfathomable.

I respectfully request the Court to issue an order directing the municipal court to process appellant's transcript request without further delay. A proposed order is enclosed.

On April 29, 2005, the trial court entered an order dismissing defendant's appeal "for failure to properly prosecute[.]" This order stated that defendant "has failed to pay the appropriate transcript fee for the transcript of the proceeding in the Fort Lee Municipal Court in accordance with the Rules[.]"

On May 4, 2005, defendant filed a motion to reinstate the appeal. In support of the motion, defense counsel submitted a certification that stated in pertinent part:

[On] September 3, 2004, my office submitted a letter requesting the trial transcript to the municipal court by fax[.]

. . . .

4. While that request was pending, on October 4, 2004, the appeal was dismissed by order of Judge Meehan for failure to purchase a transcript.

5. On October 19, 2004, the Fort Lee Municipal Court finally provided the amount of the deposit and the transcription service whose name was to be listed as payee for the deposit check, GNL Transcript. A check was sent to Fort Lee Municipal Court with a cover letter whose contents were essentially identical to my September 3, 2004, request identifying the dates to be transcribed.

6. After the foregoing circumstances were explained in a subsequent hearing, held November 3, 2004, the appeal was restored by Judge Joseph Conte.

7. Between October 19, 2004, and April 7, 2005, my office made numerous follow up requests for the status of the transcript by both telephone and by letter.

. . . .

10. Despite my repeated efforts to obtain the transcript - having already tendered payment for the amount required by the municipal court - the municipal court totally failed to respond to my repeated written and telephone requests for the transcript.

11. On April 7,2005, for the first time, the municipal court administrator, Barbara Martinetti, telephoned my office and advised my secretary that the transcript will not be made available because "the appeal was dismissed October 4 by Judge Meehan."

12. On April 12, 2005, I wrote Judge Conte and submitted a proposed order directing the municipal court to produce the trial transcript.

13. On May 3, 2005, I received an Order issued by Judge Conte dated April 29, 2005, dismissing the appeal for failure to prosecute, . . . .

14. Given the total failure of the municipal court to process appellant's request for transcript, after the municipal court finally provided the deposit amount and payee and transcription service on October 19, 2004, appellant believes that the municipal court may be unable to locate the audio recording of the trial or the audio recording may have been damaged. Whatever the result, the "failure to prosecute the appeal" should not be charged to appellant, who has no control over the transcription process once the request was submitted to the municipal court.

On June 13, 2005, the trial court sent a letter to defense counsel, stating:

I am in receipt of the above-named Defendant's file. Included in the file is your motion, dated May 4, 2005, to reinstate the appeal based upon certain circumstances which you outline in your certification. The issue, as I can understand it, is whether payment for the transcript of the municipal hearing has been tendered to the Fort Lee Municipal Court.

I have contacted the Fort Lee Municipal Court, and in speaking to the administrator there, have found that you have paid a total of $100.00. The cost of the transcript, as they have apparently explained to you, totals nearly $500.00. This bill was never reconciled, and for that reason, a transcript was never provided to you. It is your obligation to tender the money for the transcript, and due to this, your case did not proceed on appeal. Due to the fact that the transcript has still not been paid for, your motion to reinstate the appeal is denied with prejudice.

There is no support in the record for the trial court's finding, based on information received from the administrator of the Fort Lee municipal court, that defense counsel was informed that the costs of preparation of the transcript of the municipal court proceedings was "nearly $500." All the record indicates is that defense counsel repeatedly asked the municipal court to advise him of those costs and never received a response. Furthermore, when the municipal court failed to respond to defense counsel's inquiries, he requested the trial court to assist in obtaining this information. But the court simply dismissed defendant's appeal, without responding to this request.

If the municipal court administrator notified defendant of the cost of transcription of the municipal court proceedings, we would expect that notification to have been given in writing, especially in view of the procedural history of this case. However, the record does not include any written communication between the municipal court administrator and defense counsel, other than the previously quoted letters sent by defense counsel. Therefore, we must assume the municipal court administrator never informed defense counsel in writing of the cost of transcription of the municipal court proceedings. In the absence of such a written communication, there is not an adequate factual foundation for the dismissal of this appeal based on defendant's failure to pay the costs of preparation of those transcripts.

 
Accordingly, the order of the trial court dismissing defendant's appeal is reversed and the case is remanded to the trial court for further proceedings in conformity with this opinion.

(continued)

(continued)

11

A-5436-04T3

March 15, 2006