STATE OF NEW JERSEY v. BENJAMIN LEVINE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5293-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BENJAMIN LEVINE,

Defendant-Appellant.

________________________________

November 23, 2010

Submitted November 8, 2010 - Decided

Before Judges Rodr guez and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Middlesex County,

Indictment No. 91-11-817.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Richard Sparaco,

Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County
Prosecutor, attorney for respondent

(Simon Louis Rosenbach, Assistant

Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

A jury found defendant Benjamin Levine guilty of nine counts of criminal sexual contact. The judgment of conviction was entered on July 15, 1996. Defendant appealed, and following a temporary remand on the issue of ineffective assistance of counsel, this court affirmed and the Supreme Court denied certification. State v. Levine, No. A-463-96 (App. Div. Feb. 03), certif. denied, 165 N.J. 137 (2000).

On June 4, 2008, defendant filed a pro se notice of appeal from a "[f]inal [o]rder in this action on May 13, 2008 by way of [r]econsideration in favor of the State denying a [m]otion for Post Conviction Relief [(PCR)]." On the same day, defendant filed a motion for leave to appeal as within time and to proceed as an indigent. On August 15, 2008, we granted defendant leave to proceed as an indigent and noted that the notice of appeal was timely with respect to the May 13, 2008 order.

Defendant raises two issues on this appeal. Neither relates to the May 13, 2008 order. Both claim error in the initial denial of PCR:

I. THE DEFENDANT WAS DENIED THE FULL AND

FAIR EVIDENTIARY HEARING THAT WAS INITIALLY GRANTED BY THE PCR COURT.

II. DEFENDANT'S ISSUES RAISED IN HIS PCR

MOTION SHOULD BE CONSIDERED TO PREVENT

A FUNDAMENTAL INJUSTICE AND BECAUSE THEY ARE OF CONSTITUTIONAL DIMENSION. [U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART. I, 10].

Although this court's August 15, 2008 order recognizes the timeliness of defendant's appeal from the denial of his motion for reconsideration, it does not grant defendant leave to appeal from the initial denial of PCR. To the contrary, our August 15 order questions our jurisdiction to address objections to the denial of PCR. It states: "The court does not comment on the scope of appeal as the motion for reconsideration related to a June, 2007 decision (and it is unknown if an order was entered thereon)."

Accordingly, we must consider whether this appeal was filed within time to permit us to consider challenges to the denial of the petition for PCR. We now know that a final order denying PCR was entered on July 13, 2007, and that this appeal was not filed until nearly eleven months after entry of that final order.1

Rule 2:4-1(a) requires the filing of an appeal within forty-five days of the final order. Pursuant to Rule 2:4-3(c), the time for appeal is tolled by "the timely filing and service of a motion . . . for rehearing or to amend or make additional findings of fact pursuant to R. 1:7-4." A motion filed pursuant to Rule 1:7-4 is timely if it is filed within twenty days "after service of the order." R. 1:7-4(b).

Under the foregoing rules, our jurisdiction to adjudicate defendant's challenges to the July 13, 2007 final order depends on when the time for appeal was tolled. Thus, the date of the filing of defendant's motion for reconsideration is critical. Nonetheless, neither defendant nor the State has provided this court with a copy of the motion for reconsideration. The record includes nothing other than an April 25, 2008 letter from defendant to the trial judge referring to a motion for reconsideration filed on July 16, 2007.

We decline to exercise our jurisdiction based on a mere assumption that the motion for reconsideration was filed on July 16, 2007, but not resolved until May 13, 2008. In the first place, it seems unlikely. Secondly, having been alerted to the jurisdictional issue by this court's order of August 12, 2008, defendant should have addressed the issue and included the notice of motion in his appendix. Rule 2:6-1(a)(1). Accordingly, we dismiss the appeal without prejudice to a motion to reinstate supported by a brief addressing the jurisdictional issue and an appendix that includes a copy of the notice of motion for reconsideration indicating the date on which it was filed.

There is a second reason to dismiss this appeal without prejudice. The record provided on this appeal is not adequate to permit consideration of defendant's claim that the trial judge granted but did not provide a full evidentiary hearing. We do not have a transcript of the judge's decision to conduct, or an order defining the scope of, the evidentiary hearing.

Moreover, we do not have all of the transcripts from the evidentiary hearing. We have a transcript of testimony presented on February 25, 2005. Defendant's trial attorney, Mr. Matlaga, did not testify at that hearing, but we have transcripts of testimony given by him on February 10 and 14, 2006. At the outset of the February 10 session, the judge determined there was no need to place Mr. Matlaga under oath because he had testified during a prior session, and on February 14, the judge told the lawyer he would be required to return for another session. But the next transcript is from June 25, 2007; it includes no testimony and reports the judge's decision denying the petition. Thus, it appears that defendant has failed to provide at least two transcripts that are critical to his claims on appeal.

These obvious gaps in the record must be remedied before this court reinstates defendant's appeal. In the interests of judicial economy, we direct that with any application to reinstate this appeal, defense counsel must file a certification indicating that he has: 1) made a full and diligent inquiry to identify all orders entered and proceedings conducted in this case between the filing of the petition in March 2003, and the entry of the order denying defendant's motion for reconsideration on May 13, 2008; ordered all transcripts of those proceedings; and provided all orders and applications filed pursuant to Rule 3:22-6(a)-(b). See also R. 2:6-1(a) (detailing the requirements of an appendix in a criminal appeal and requiring inclusion of "all docket entries in the appendix").

The appeal is dismissed without prejudice to a motion to reinstate that is filed in conformity with this opinion.

1 On August 20, 2008, the Office of the Public Defender entered its appearance on behalf of defendant. The July 13, 2007 order is included in the appendix to the brief submitted by designated counsel on appeal.