STATE OF NEW JERSEY v. CAROL MADDEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5028-07T45028-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CAROL MADDEN,

Defendant-Appellant.

________________________________

 

Submitted June 30, 2009 - Decided

Before Judges Skillman and Wefing.

On appeal from Superior Court of New Jersey,

Law Division, Hudson County, Municipal Docket

Nos. S-2005-1016, S-2005-1017, S-2006-1720,

and S-2006-1721.

Karen DeSoto, attorney for appellant.

Edward J. De Fazio, Hudson County Prosecutor,

attorney for respondent (Nicole M. Ghezzar,

Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from a trial court order entered on April 2, 2008. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.

We gather from the briefs of the parties that the matter which is before us has had an extensive procedural history, not all of which has been fully documented in the appendices of the parties. From the material which has been submitted to us, we piece together the following factual context.

Defendant is a tenant in an apartment building in Bayonne. Over a period of time, she became embroiled in a series of disputes with other residents of the building, and the landlord, with respect to her habit of opening windows and doors in the building's common areas during the winter months. These disputes escalated to the point that several complaints alleging harassment were filed against defendant and she, in turn, filed similar harassment complaints against certain tenants and her landlord. We do not have copies of any of these complaints.

The trial of these cross-complaints was heard in Bayonne Municipal Court in September and October 2005, and defendant was acquitted of certain of the complaints but found guilty with respect to two complaints of harassment. She was sentenced to one year on probation and assessed fines and costs. The municipal court judge found those individuals against whom defendant had filed complaints to be not guilty.

Defendant appealed her convictions to the Law Division for a trial de novo. We have not been provided with a transcript of whatever proceedings may have occurred in the Law Division but on April 27, 2006, the Law Division judge wrote the following letter to counsel:

Receipt of your letter of April 24, 2006 is hereby acknowledged. Insofar as all parties acknowledge the record is incomplete this matter is hereby reversed and remanded to the trial court for a new trial.

The next proceeding reflected in the record before us occurred on December 6, 2006, in Bayonne Municipal Court. We infer from the transcript of those proceedings that the matter had been set down for trial that day, but we do not have a copy of any notice to the parties to that effect. Defendant appeared and requested an adjournment, stating that she no longer wished to be represented by the Bayonne public defender and had hired an attorney who was unable to appear that morning. No attorney, however, had contacted the court requesting an adjournment, and it is clear from the transcript that the matter had been adjourned on several occasions, though defendant disputed that all had been at her request. The municipal court judge denied defendant's request for any further adjournments.

After denying that request, the municipal court judge said that the matter had not been returned for a new trial but simply to fill in those portions of defendant's testimony that had not been properly recorded during the earlier proceedings. The municipal court judge noted that he had had a telephone conversation to that effect with the Superior Court judge; there is no indication that the attorneys for the parties were notified of this conversation or given an opportunity to participate. Despite defendant's protests that her conviction had been reversed and the matter remanded for a new trial, the municipal court judge insisted that she would only be allowed the opportunity to supplement her testimony. Faced with that directive, defendant refused to offer any additional testimony. The municipal court judge again found her guilty of two complaints of harassment and imposed the same penalties.

Defendant again appealed to the Law Division. On April 2, 2008, the Law Division dismissed her appeal for lack of prosecution. Defendant filed a motion with this court in June 2008 to file a notice of appeal as within time. Her motion was granted, but the order stated that her appeal was limited to a review of the order of April 2, 2008. The parties have nonetheless proceeded to address in their respective briefs the merits of the proceedings which occurred in municipal court in December 2006.

We are compelled to agree with defendant that the municipal court erred in not giving her the new trial which had been directed by the Law Division judge. When a matter is remanded for further proceedings, the court to which the matter is remanded is not free to disregard the terms of the remand. Miah v. Ahmed, 179 N.J. 511, 528 (2004); Jersey City Redev. Agency v. Mack Props. Co. #3, 280 N.J. Super. 553, 562-63 (App. Div. 1995) (noting that "[i]t is the peremptory duty of the trial court, on remand, to obey the mandate of the appellate tribunal precisely as it is written"). If the matter had been returned to reconstruct a portion of the record, the position advanced by the State in response to defendant's appeal to this court, a directive to that end would have been supplied by the Law Division judge. It was not, however. The direction was clear: the matter was reversed and remanded for a new trial. Faced with that directive, the municipal court judge was not free to take it upon himself to limit the terms of the remand. If he felt clarification was needed, the parties should have been notified and given an opportunity to express their views on the question.

One portion of the transcript of December 6, 2006, demonstrates the need to have proceeded to a new trial, rather than a mere supplementation of the record. When the municipal court judge said he only had to rehear the portion of defendant's testimony that was not recorded, defendant noted that the testimony of Detective Neil Reynolds was also missing. To this the municipal court judge responded that his testimony was not necessary. We are unable to determine how the municipal court judge came to this conclusion. Our review of the transcripts of September and October 2005 reveal no testimony by Detective Reynolds, yet the trial court relied upon that testimony in the course of giving his oral opinion finding defendant guilty.

Defendant's second appeal to the Law Division resulted in the order of April 2, 2008, which stated that it "reimposed" the earlier sentence of the municipal court. The trial court, however, had already determined that the record created in municipal court was insufficient.

We thus reverse the order of April 2, 2008, and remand to the municipal court this matter for further proceedings. We do not retain jurisdiction.

 

The record before us does not contain a copy of that letter.

We note that this directive was apparently never reduced to a formal order. We overlook that procedural irregularity in order not to protract this matter any further.

(continued)

(continued)

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A-5028-07T4

July 27, 2009