EDWIN LORENZO v. JOHN CLEARY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0444-08T30444-08T3

EDWIN LORENZO,

Plaintiff-Appellant,

v.

JOHN CLEARY, Eatontown

Police Officer,

Defendant-Respondent,

and

RUSSELL ANDERSON, MICHAEL H.

BURNS, JAMES NOVAK, Sayreville

Police Officers; VIVIAN

COSENTINO and KATHERINE

COSENTINO,

Defendants.

______________________________________________________

 

Submitted December 15, 2009 - Decided

Before Judges Wefing, Grall and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6065-03.

Edwin Lorenzo, appellant pro se.

Chamlin, Rosen, Uliano & Witherington and Gluck Walrath LLP, attorneys for respondent (John T. Bazzurro and Cindy M. Perr, on the joint brief).

PER CURIAM

Plaintiff Edwin Lorenzo appeals from the order of judgment that dismissed his complaint against defendant John Cleary following the jury's verdict of no cause of action. Plaintiff challenges the trial judge's jury instructions, specifically contending that the charge "didn't contain [F]ourth or [F]ifth [A]mendment claims, or the 42 U.S.C. [ ] 1983 elements." Because plaintiff has failed to provide us with an adequate record of the proceedings at trial, we cannot conduct a meaningful review. We therefore dismiss the appeal.

This is the third time the matter is before us. In both prior decisions, we reversed orders that dismissed plaintiff's complaint with prejudice for his alleged failure to appear at trial. Lorenzo v. Cleary, No. A-1355-05 (App. Div. July 26, 2006); Lorenzo v. Cleary, No. A-1853-06 (App. Div. February 14, 2008) (Lorenzo II). In each instance, we remanded the matter for trial.

Plaintiff, an inmate at East Jersey State Prison, has represented himself throughout the litigation. His complaint against defendant, "an Eatontown police officer, allegedly arose out of law enforcement's response to a domestic violence dispute between plaintiff and . . . Katherine Consentino." Lorenzo II, (slip. op. at 2).

Plaintiff's amended complaint sought relief based upon allegations that defendant acted in concert with other police officers and civilians to deny him "[d]ue process of law"; lodged "false charges" against him "culminating in an illegal arrest and detention without . . . [p]robable [c]ause"; and "falsif[ied] official police reports, [and] with[eld] exculpatory evidence . . . ." Plaintiff alleged that these actions "constitute[d] Cruel and Unusual Punishment, in violation of the Fourth and Eighth Amendments, [and] violate[d] the Due Process Clause of the Fifth and Fourteenth Amendments of the Constitution."

After our remand in Lorenzo II, the case was tried before a jury over the course of several days in June 2008. The jury returned a verdict of no cause. In his brief, plaintiff contends that the judge committed error in the charge regarding his claims under 1983, and that he failed to provide the jury with any instructions regarding plaintiff's claim for malicious prosecution. Plaintiff acknowledges that he lodged no objection to the judge's charge at trial; in a reply brief, he contends "that he did not have the opportunity to object to the jury charge because know [sic] one provide[d] him with a draft of the jury charge [as] propose[d]." He apparently made a motion for new trial, but acknowledges that he raised no objection to the charge at that time because although "[he] requested oral argument[,] [he] did not get it."

The only trial transcript provided begins and ends with the judge's jury charge. We therefore do not know who testified at trial, or the substance of that testimony; and, we do not know what legal rulings may have been made by the judge during trial or at any charge conference, if indeed one took place.

Our Rules require an appellant to request a transcript "of the proceedings before the court . . . from which the appeal is taken . . . ." R. 2:5-3(a).

[T]he transcript shall include the entire proceedings in the court . . . from which the appeal is taken, including the reasons given by the trial judge in determining a motion for a new trial, unless a written statement of such reasons was filed by the judge. The transcript shall not, however, include opening and closing statements to the jury or voir dire examinations or legal arguments by counsel unless a question with respect thereto is raised on appeal, in which case the appellant shall specifically order the same in the request for transcript.

[R. 2:5-3(b) (emphasis added).]

The transcript may be abbreviated "by consent," or if the appellant files a motion with the trial judge "specifying the points on which [he] will rely on the appeal." R. 2:5-3(c)(1) and (2). There is nothing in the record to demonstrate that plaintiff complied with either alternative regarding abbreviation of the transcript.

Pursuant to Rule 2:8-2, we may dismiss an appeal because of procedural defects, particularly when the deficiencies make it impossible to review the issues on their merits. In re Zakhari, 330 N.J. Super. 493, 495 (App. Div. 2000); Pressler, Current N.J. Court Rules, comment 1.2.8 on R. 2:8-2 (2010). The failure to provide a complete transcript of the trial is an example of a procedural defect that inhibits the ability of an appellate court to fully review the claims raised on appeal. See Cipala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004) (holding that dismissal of a portion of the plaintiff's appeal was appropriate given the failure to provide a transcript of the trial); see also Pressler, supra, comment 2 on R. 2:5-3(b) (2010) ("Failure to provide the complete transcript may result in dismissal of the appeal . . . .").

We recognized plaintiff's status as an indigent litigant, having granted his motion to proceed as such for purposes of this appeal. However, in that same order, filed November 5, 2008, we specifically denied his motion for free transcripts of the proceedings. We acknowledge that plaintiff appears pro se and may lack a full appreciation of the requirements contained in the Rules. Nevertheless, we have noted that a party's pro se status does not relieve him of the obligation to follow our Court Rules. Venner v. Allstate, 306 N.J. Super. 106, 110 (App. Div. 1997).

We cannot conduct any meaningful review of plaintiff's claims regarding the judge's jury charge without knowing what transpired at trial. While plaintiff objects to portions of the judge's charge on some of his 1983 claims, we cannot discern from the existing record whether the instructions were erroneous in light of the evidence at trial, and, since plaintiff failed to object, whether any error amounted to plain error. See R. 2:10-2. Regarding plaintiff's claim that the judge failed to provide the jury with any instructions regarding the malicious prosecution claim, we acknowledge that the transcript reveals that the judge gave no charge on the issue. However, without any transcript of the trial proceedings, we cannot discern whether the judge made a legal determination resulting in his decision not to provide the charge, nor can we consider whether plaintiff had adduced sufficient proof to justify submission of that claim to the jury in the first instance. In short, we are unable to fairly evaluate the merits of plaintiff's contentions.

 
The appeal is dismissed.

Cleary was apparently the only remaining defendant left in the case at the time of trial. An order dated February 9, 2005, granted Cleary summary judgment as to "all State claims" made by plaintiff, but denied the relief as to plaintiff's "federal claims."

The record does not contain the motion or the order denying the relief. Plaintiff's notice of appeal does not seek review of the denial of his motion for a new trial.

Plaintiff was aware of the need to provide transcripts and the possibility of dismissal of the appeal if he failed to do so. Apparently, his original notice of appeal indicated his intention to order a transcript from proceedings that occurred on February 9, 2005. However, in a letter directed to a supervising attorney in the Appellate Division's Clerk's Office dated May 4, 2009, plaintiff clarified that his notice of appeal was in error, and that the February 2005 transcript was "not needed." He objected to the potential dismissal of his appeal based upon the failure to provide a transcript that was unnecessary to consideration of the issues raised.

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A-0444-08T3

April 7, 2010