STATE OF NEW JERSEY v. MOHAMMED RAHAMI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MOHAMMED RAHAMI,

Defendant-Appellant.

______________________________

Telephonically argued February 7, 2014 Decided February 26, 2014

Before Judges Reisner and Ostrer.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Municipal Appeal No. 5997.

Shelley L. Stangler argued the cause for appellant (Shelley L. Stangler, P.C., attorneys; Ms. Stangler, of counsel; Judith L. Rosenthal, on the briefs).

Norma M. Murgado, Chief Municipal Prosecutor, argued the cause for respondent (Elizabeth City Municipal Prosecutor's Office, attorneys; Ms. Murgado, on the brief).

PER CURIAM

Defendant Mohammed K. Rahami appeals from the Law Division's August 19, 2011, order dismissing, for failure to prosecute, his municipal appeal from a conviction of Elizabeth City Ordinance 5.71.020 governing the hours of operation of retail establishments. Inasmuch as the Law Division appropriately exercised its discretion in dismissing the municipal appeal, we affirm the court's order and do not reach defendant's various constitutional challenges to the ordinance.

In June 2003, Elizabeth adopted an ordinance that generally barred the operation of retail establishments between 10 p.m. and 6 a.m., if located below a residential unit in a residential or commercial zone. Among the various establishments excepted from the restriction were restaurants that "devote ninety-five (95) percent of [their] business to the preparation and service of meals or food for consumption inside the retail establishment." The penalty for violation was a fine of between $100 and $1250, and incarceration for up to ninety days. The ordinance was intended to address residents' complaints of noise and other disruptive activity arising from retail establishments' late-night operations.

In Spring 2009, Elizabeth police officers issued numerous summons-complaints to defendant and his father, alleging they operated their fried chicken establishment in violation of the ordinance. Defendant's father had previously been charged in 2008, but the prosecutor voluntarily dismissed the charge after conferring with defense counsel and concluding that the restaurant had not violated the ordinance.

In February 2011, defendant entered into a conditional guilty plea to one complaint, admitting that on June 15, 2009, the restaurant was "open past 10:00 p.m." and it had "served more than six percent of take out business." Defendant also entered a plea to a violation of N.J.S.A. 2C:29-1, obstructing the administration of law, in connection with the officers' actions on that night.

Defendant reserved for appeal his constitutional arguments that: (1) the hours ordinance constituted an ex post facto law, because the restaurant pre-existed the ordinance's adoption; and (2) the ordinance was void for vagueness. The municipal court had declined to rule on those claims.1 Defendant was sentenced to a $200 fine and $33 in court costs on the hours ordinance violation. Other complaints were dismissed.

Defendant filed a notice of municipal appeal on March 8, 2011. The record does not include the Law Division's scheduling order. However, on July 15, 2011, the matter came before the Law Division judge, who observed that the appeal had "been listed on several occasions." Defense counsel had failed to file a required brief. Although the judge stated he was inclined to dismiss the appeal without prejudice for failure to prosecute, defense counsel persuaded the court, over the State's objection, to provide an additional continuance. Before doing so, the court asked defense counsel to summarize his client's constitutional challenge to the ordinance. Counsel responded by asserting the ordinance was an ex post facto law and void for vagueness on its face. Defendant's brief was made due on July 25, the State's reply on August 5, with a hearing on August 19.

Defense counsel failed to file the brief as ordered. On the hearing date, neither defense counsel nor defendant appeared. The judge noted that defense counsel had faxed a request for another adjournment very late the previous day. The letter is not included in the record. The State objected to any further adjournments. The judge then dismissed the appeal for lack of prosecution. The court also stated the ex post facto argument lacked merit and "[w]ere [defendant] here to prosecute the matter, I would dismiss it substantively on the merits." The court entered an order dismissing the appeal "[s]ubstantively on the merits and [f]or failure to prosecute."

Defendant did not move to reinstate the municipal appeal. Instead, new counsel for defendant filed a notice of appeal on September 28, 2011. We dismissed that appeal for failure to prosecute in February 2013, but granted a motion to reinstate in April.

Defendant now presents the following points for our review:

POINT I

RAHAMI WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

A. THE FAILURE TO FILE AN AMENDED NOTICE OF APPEAL, TO FILE A BRIEF AND/OR TO APPEAR CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

B. RAHAMI IS ENTITLED TO REMAND FOR AN EVIDENTIARY HEARING TO DETERMINE WHETHER HE SHOULD BE PERMITTED TO WITHDRAW HIS GUILTY PLEA.

POINT II

THE SUPERIOR COURT ERRED BY FAILING TO CONDUCT A DE NOVO REVIEW.

A. THE JULY 15, 2011 HEARING.

B. THE AUGUST 19, 2011 HEARING.

POINT III

THE SUBJECT ORDINANCE IS VAGUE, OVERBROAD AND INCAPABLE OF ENFORCEMENT.

POINT IV

THE RESTAURANT IS A PRIOR, NON-CONFORMING USE NOT SUBJECT TO THE ORDINANCE.

POINT V

PROSECUTION OF RAHAMI WAS BARRED BY THE DOCTRINES OF DOUBLE JEOPARDY AND/OR JUDICIAL ESTOPPEL.

A. PROSECUTION IS BARRED BY DOUBLE JEOPARDY.

B. PROSECUTION IS BARRED BY JUDICIAL ESTOPPEL.

POINT VI

THE LAW DIVISION ABUSED ITS DISCRETION BY DISMISSING THE APPEAL, RATHER THAN SANCTIONING PRIOR COUNSEL.

We generally shall not reach a constitutional issue "unless its resolution is imperative to the disposition of litigation." Randolph Town Ctr., L.P. v. Cnty. of Morris, 186 N.J. 78, 80 (2006); see also Bell v. Twp. of Stafford, 110 N.J. 384, 389-90 (1988) (stating courts generally should avoid constitutional issues absent "strict necessity" to reach them). We also generally will not consider issues that were not raised before the trial court. Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973). Defendant did not properly present his ex post facto and vagueness arguments to the trial court, as he failed to file a required brief or appear. Also, defendant never raised his double jeopardy and judicial estoppel arguments, or the argument that the Law Division was required to supplement the record or conduct a de novo plenary hearing. Therefore, consistent with Nieder and the "strict necessity" doctrine, we do not reach these arguments.

Rather, we affirm on the basis that the trial court did not err in dismissing the appeal for failure to prosecute. We review the trial court's decision for an abuse of discretion. Cf. Abtrax Pharm. v. Elkins-Sinn, 139 N.J. 499, 517-18 (1995) (a trial court's ruling on sanctions is reviewed for an abuse of discretion). We are unpersuaded by defendant's argument that the court was required to impose lesser sanctions than dismissal.

The municipal appeal is governed by Rule 3:23 (and not, as defendant asserts, Rule 2:9-9, which governs sanctions for violations of appellate rules). The Law Division may dismiss an appeal "for failure to prosecute" after which the matter shall be remanded to the municipal court "for execution of the judgment therein." R. 3:23-7. In particular, dismissal may be ordered for failure to comply with Rule 3:23-8(b), which requires the filing of a brief when "questions of law are involved on the appeal or if ordered by the court."

When counsel appeared in July 2011, the matter had already been rescheduled numerous times and defense counsel was in default of the order requiring a brief. The court was inclined to dismiss the appeal at that time. However, defense counsel persuaded the court to grant an additional continuance. Without any excuse in the record, defense counsel failed to file his brief as required and did not appear after he submitted an eleventh hour adjournment request.

Defendant has presented no just excuse for defense counsel's non-compliance. Rather, he argues that the failings of his counsel should not be visited upon him. There is no evidence before us as to why defense counsel did not file a brief or appear whether it was the result of defense counsel's own neglect, or a failure of cooperation by the client. We also have no basis to conclude that defendant was unaware of his counsel's oversight.

In any event, a client is not automatically relieved of the consequences of his attorney's carelessness or lack of diligence. Cf. Baumann v. Marinaro, 95 N.J. 380, 394 (1984) (stating that "[m]ere carelessness or lack of proper diligence on the part of an attorney is ordinarily not sufficient to entitle his clients to relief from an adverse judgment in a civil action" pursuant to Rule 4:50-1 (internal quotation marks and citation omitted)). In reviewing the Law Division's order of dismissal, we also weigh the relatively minor consequences of the judgment a monetary sanction of $233. The court imposed no period of incarceration, nor is defendant subject to any permanent restraints on his business or livelihood. Finally, we are also mindful that the municipal court system is designed to process millions of cases in a swift and expeditious manner. See State v. Hessen, 145 N.J. 441, 449 (1996). The unexcused failure to prosecute a municipal appeal undermines those goals. In light of these factors, we discern no basis to disturb the trial court's order of dismissal.

To the extent they have not been addressed, defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2).

1 See State v. Barnes, 84 N.J. 362, 367 (1980) ("The better practice for a municipal court is to assume that an act is constitutional until it has been passed upon by the Appellate Court, unless it is so clearly in contravention of the constitution that there can be no reasonable doubt about it." (internal quotation marks and citation omitted)); State v. Barcheski, 181 N.J. Super. 34, 39 (App. Div. 1981) (noting that although the municipal court's power includes the power to determine "the constitutionality of the statute on which the charge is based," the municipal court should defer the question to de novo review if the issue is debatable).