JANINE K. HAMILTON v. MELVIN SHAW

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5109-07T25109-07T2

JANINE K. HAMILTON,

Plaintiff-Appellant,

v.

MELVIN SHAW,

Defendant-Respondent.

_____________________________________________________________

 

Submitted February 10, 2009 - Decided

Before Judges Skillman and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Docket No.

L-7882-02.

Janine K. Hamilton, appellant pro se.

Cristian M. Towers, attorney for respondent.

PER CURIAM

Plaintiff Janine K. Hamilton filed a complaint on December 2, 2002, alleging breach of contract and fraud seeking payment on a loan made to defendant Melvin K. Shaw's business. Defendant did not dispute plaintiff's breach of contract claim, and a partial final judgment in the amount of $180,000 was entered in favor of Hamilton on April 10, 2003.

In May 2003 plaintiff moved to enforce litigant's rights. However, defendant filed for personal bankruptcy which stayed enforcement proceedings until his bankruptcy petition was subsequently dismissed. On July 13, 2004, the Law Division ordered defendant to pay plaintiff $180,000 within thirty days or be subject to civil arrest and commitment in the Camden County Jail until the judgment was satisfied. An ability-to-pay hearing was initially scheduled for August 2004, but the hearing was delayed until November 15, 2005, because defendant filed a second personal bankruptcy petition.

Defendant pled guilty in federal court to two counts of wire fraud and was sentenced on January 23, 2006, to a fifty-four month custodial term with three years of supervision upon his release from prison. After a restitution hearing, the federal court determined that defendant defrauded thirty-one victims including plaintiff. On March 10, 2006, defendant was ordered to make restitution payments in the amount of two hundred fifty dollars per month to commence thirty days after his supervised release from prison. Defendant's custodial sentence began on March 17, 2006, and was subsequently reduced to forty months.

Defendant's ability-to-pay hearing in the Law Division took place on non-consecutive days between November 15, 2005, and April 26, 2006. On May 15, 2006, the Law Division found that defendant had the current ability to pay $158,378.18, and it ordered that upon his release from federal custody he was to be detained at the Camden County Jail until plaintiff's judgment was satisfied. Defendant appealed from the May 15, 2006 order, however, his appeal was later dismissed for failure to order transcripts and pay filing fees.

On November 28, 2007, federal authorities approved defendant for placement into a Residential Re-Entry Center (halfway house) for a 150-to-180-day period prior to the commencement of his supervised release. But defendant was notified by the Department of Justice on May 21, 2008, he was ineligible for placement in the halfway house due to the detainer issued by the Law Division on May 15, 2006.

On May 30, 2008, defendant filed an order to show cause requesting that the detainer be temporarily lifted to permit his transfer from federal prison to the halfway house. Plaintiff opposed the motion. On June 18, 2008, the Law Division granted defendant's application, and the detainer was "temporarily lifted" to allow defendant's transfer to the halfway house. The court reasoned that defendant's employment during his term at the halfway house would enable him to begin paying restitution.

Defendant was subsequently transferred to the halfway house. In an order dated January 23, 2009, the trial court noted defendant was scheduled to be released from federal custody on February 6, 2009, and the court scheduled an ability to pay hearing for March 3, 2009. The order provides as follows:

1. The purpose of Judge Blue's June 18, 2008 Order temporarily lifting Judge Little's May 15, 2006 Capias Ad Satisfaciendum Detainer Order having been accomplished, by way of Defendant's transfer from federal prison to a federal Residential Re-Entry Center, and for purposes of maintaining the status quo, Judge Little's Order of May 15, 2006 is reaffirmed in its entirety, including, but not limited to the Camden County detainer provision, which shall be effective upon his release from federal custody scheduled for February 6, 2009.

2. An ability to pay hearing is hereby scheduled for Tuesday, March 3, 2009, 9:00 a.m. at 101 S. Fifth Street, Camden, New Jersey, Courtroom 43, before the Honorable Frederick J. Schuck, J.S.C.

On appeal, plaintiff contends the court erred when it temporarily lifted the detainer that was ordered on May 15, 2006. We conclude, however, there is no viable issue on appeal because the order plaintiff appeals from, dated June 18, 2008, expired on its own terms when defendant was released from the halfway house on February 6, 2009. See Caput Mortuum, L.L.C. v. S & S Crown Servs., Ltd., 366 N.J. Super. 323, 330 (App. Div. 2004) ("Our courts generally will not decide a case if the issues are hypothetical, a judgment cannot grant effective relief, or there is no concrete adversity of interest between the parties."); Cinque v. N.J. Dep't of Corr., 261 N.J. Super. 242, 243 (App. Div. 1993) ("It is firmly established that controversies which have become moot or academic prior to judicial resolution ordinarily will be dismissed."). If there was any doubt about this conclusion, it was resolved by the order entered on January 23, 2009, which confirms that the detainer "shall be effective upon [defendant's] release from federal custody."

The appeal is dismissed.

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5

A-5109-07T2

March 9, 2009