STATE OF NEW JERSEY v. EDWARD WOOD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6132-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD WOOD,

Defendant-Appellant.

__________________________________

April 26, 2013

 

Argued April 15, 2013 Decided

 

Before Judges Graves and Ashrafi.

 

On appeal from Superior Court of New Jersey,

Law Division, Union County, Indictment No.

12-06-0498.

 

Gerald M. Saluti argued the cause for

appellant (Roberts & Saluti, L.L.C.,

attorneys; Richard M. Roberts, on the brief).

 

Sara B. Liebman, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Liebman, of counsel and on the brief).

PER CURIAM

We granted leave for defendant Edward Wood to appeal an order of the Law Division fixing the amount of bail he must post to obtain his release before trial on first-degree narcotics and racketeering charges. It now appearing to us that defendant had the opportunity to move for a further reduction of his bail before the Law Division but failed to make such a motion, and also, that defendant has failed to provide an adequate record for us to review, we dismiss the appeal without prejudice to defendant moving for a further reduction of his bail in the trial court.

Defendant was arrested and charged in December 2011 with possession of illegal drugs and other offenses. The charges arose from a wiretap investigation and the seizure of a quantity of narcotics at a location where defendant was arrested.1 His bail was initially set at $1 million. On June 29, 2012, the Law Division heard defendant's motion to reduce his bail. Counsel argued that defendant had been in custody for seven months, that an indictment had not yet been returned, that the evidence did not reveal defendant's extensive involvement in the case as compared to others who had been arrested as a result of the wiretap investigation and had lower amounts of bail set, and that defendant had certain medical problems that presented a special hardship for him in custody.

The prosecutor's office did not argue the bail motion. As best as we can deduce from the scant record, either the prosecutor's narcotics strike force that had instituted the charges was not notified of defendant's bail motion or the assigned prosecutor otherwise neglected to appear. The judge held a brief colloquy with defense counsel and stated that he would reduce defendant's bail amount to $750,000 but not to the $150,000 requested by counsel because insufficient information for such a reduction had been provided. The judge noted that defendant had a prior conviction for a narcotics distribution offense and therefore faced a mandatory extended term sentence if convicted of a first-degree drug offense. See N.J.S.A. 2C:43-6(f); 2C:43-7(a)(2) (extended sentencing range of 20 years to life imprisonment).

The judge made two remarks inviting counsel to return for a full hearing on defendant's bail application. First the court said to counsel: "I will not preclude you from making another application if you contact the Narcotics Strike Force . . . and they agree to join in a lower reduction based upon these medical issues." Second, at the end of the colloquy, the judge repeated that his decision not to reduce the bail amount further was based in part on inadequate notice of the motion to the appropriate prosecutor. The judge indicated again that he lacked sufficient information about defendant's circumstances and that he would allow defense counsel to make another motion to reduce the bail without waiting for the passage of several weeks, as normally required, "if you can get counsel to come back in and make the argument."

Instead of following up with a renewed motion with notice to the appropriate prosecutor's division, defendant filed a motion before us for leave to file an interlocutory appeal of the court's June 29, 2012 bail order, which we granted.

Subsequently, a Union County grand jury indicted defendant on first-degree narcotics and racketeering offenses.2 Defendant failed to file a timely brief on the appeal before us, and this court dismissed the appeal on October 22, 2012. Counsel then moved to reinstate the appeal, which we granted by order dated January 8, 2013.

Without a proper appendix setting forth information pertinent to the bail issue, see Rule 2:6-1(a)(1), defendant raises the following arguments on appeal:

POINT I

 

THE BAIL AMOUNT SHOULD BE SET WITHIN THE GUIDELINES RANGE OF $100,000.00 TO $250,000.00.

 

 

POINT II

 

THE HISTORY AND FACTS OF THIS CASE INDICATE THAT THE BAIL AMOUNT SHOULD BE SET LOWER THAN $750,000.00.

 

POINT III

 

THE COURT SHOULD CONSIDER DEFENDANT'S SERIOUS MEDICAL CONDITION IN DETERMINING THE BAIL AMOUNT AND CONDITIONS OF PRETRIAL RELEASE.

We are unable to address these issues because we do not have information in our record to determine a reasonable amount of bail. See R. 3:26-1(a).

Moreover, defendant had the opportunity to return to the trial court with a motion for further reduction of his bail but for unknown reasons did not pursue that more efficient route. Had defense counsel filed another motion with notice to the narcotics strike force, the trial court would have heard the motion long ago and made a more complete factual record, perhaps reducing the bail amount.

The appeal is from an order that was not the trial court's final disposition of the bail issue. In addition, it has been presented in a manner that does not allow proper review.

Defendant's appeal is dismissed without prejudice to re-filing of a motion in the trial court for reduction of his bail. We do not retain jurisdiction.

1 The appellate record is bare as to the specifics of the charges.

2 Neither party has provided us with a copy of the indictment.