On appeal from the Superior Court, Law Division, Monmouth County.
Pressler, O'Brien and Scalera. The opinion of the court was delivered by Pressler, P.J.A.D.
The issue presented by this appeal arises out of the adjudicated overcrowding at the Monmouth County jail. See Monmouth Cty. Correctional Inst. Inmates v. Lanzaro, 595 F. Supp. 1417 (D.N.J.1984), aff'd in part, mod. in part 834 F.2d 326 (3d Cir.1987). Because the federal district court set a maximum jail population of 344 inmates, later increased by consent order to 395 inmates, the Sheriff of Monmouth County determined that he would not accept new inmates sentenced to jail terms by the municipal courts forthwith upon their sentencing. He therefore circulated a memorandum, dated February 26, 1987, to all municipal police chiefs and all municipal court judges, prosecutors, court clerks, and other municipal officials. The memorandum advised that except for temporary mental health and domestic relations commitments which he would continue immediately to accept, all defendants sentenced to jail terms by the municipal courts would be accepted for commencement of service of their sentences only at such time as "room becomes available" and that these defendants would be given 24-hours notice of that time by their local police departments.
Defendant Walter Hughes was charged in the Neptune Township Municipal Court with a variety of traffic offenses including driving while on the revoked list. N.J.S.A. 39:3-40. Because he was then involved in an accident causing injury to another person, he was subject on conviction, in addition to other prescribed penalties, to a minimum mandatory 45-day jail term. N.J.S.A. 39:3-40(e). Defendant opted to plead guilty. He was sentenced to the mandatory 45-day jail term on April 15, 1987 and informed by the judge that service of the sentence would not commence immediately. There does not, however,
appear to have been a formally entered judicially-ordered stay of sentence. In any event, Hughes was not notified of his obligation to commence service of the sentence until some weeks thereafter, apparently on or around June 10, 1987. He then took the position that he was entitled to be credited with service time as of the date of imposition of the sentence and that since 45 days had already elapsed between the sentencing date and the notification to start serving it, he should be deemed to have completed its service. The municipal court, on a motion pursuant to R. 7:4-6(g) (correction or reduction of sentence) disagreed, and defendant appealed de novo to the Law Division. The Law Division, agreeing with the municipal court judge, ordered defendant to commence service of the 45-day sentence. Defendant appealed that order to this court, which, however, denied his motion for bail pending appeal. Consequently, defendant has already served his 45-day term in the Monmouth County jail.
Defendant raises a variety of challenges to the validity of the Sheriff's deferral memorandum and the court's apparent acquiescence therein, including state and federal constitutional claims and allegations of ultra vires action on the part of the Sheriff. Both the Monmouth County Prosecutor and the Attorney General, who appeared amicus curiae at our invitation,*fn1 urge us to dismiss the appeal on the ground of mootness. See R. 2:8-2. There is, of course, no doubt that the appeal is moot. Defendant does not and never has challenged either the adjudication of guilt, the imposition of the jail term, or its quantum. His only claim is that he should be deemed to have served the sentence prior to receiving notice to commence service in accordance with the Sheriff's memorandum. Since he has, however, already served the 45-day jail term in accordance with the memorandum, there is patently no remedy which can now be afforded him. Defendant does not suggest that his appeal is
not moot. He contends, however, that because of the public importance of the issues raised and their likelihood of recurrence, we should address them rather than dismissing the appeal. We opt, however, to dismiss the appeal. We recognize our discretion to reach the merits of an issue of public significance despite its mootness. See, e.g., Falcone v. De Furia, 103 N.J. 219, 226 (1986); Matter of Conroy, 98 N.J. 321, 342 (1985). We decline to do so here, however, for several reasons.
First, there is no case now before us whose resolution requires either determination of those issues or consideration of the even more complex question of prescribing a remedy if the Sheriff indeed had acted ultra vires. There may well be a legitimate question as to whether the Sheriff may conditionally refuse to accept inmates committed to his custody by judicial order where such refusal takes the form of an indefinite, open-ended deferral of acceptance. Moreover, the validity of the Sheriff's memorandum, at least in the sense of its capacity to dictate judicial action, is also subject to considerable doubt. But in the absence of an actual controversy requiring resolution, we conclude that we should not reach either the ultra vires issue or the issue of appropriate remedial action. These issues are more appropriately addressed in a proceeding to which the Sheriff and Commissioner of the Department of Corrections are parties and in which the Monmouth County Board of Freeholders has an opportunity to intervene or the capacity to be joined.
We also decline to adjudicate the issues here raised because of the paucity of the record. In this regard, we note not only the meager factual presentation of defendant's case*fn2 but also
the absence of facts regarding the actual implementation of the Sheriff's memorandum. Thus, this record does not disclose whether all municipal courts follow it in all cases and, if so, in what manner; how many defendants are affected thereby; what the shortest, average, mean, or longest deferral period is; what the ratio is, if any can be fairly ascertained, between the length of the sentence imposed and the length of the deferral period; what the form of order is, if any, by which deferral is effected;*fn3 or what, if any, the standards are for deferred acceptance, that is, whether defendants are accepted by date of conviction, by length of sentence, by seriousness or category of offense, or by any other criterion. Nor do we have any idea how the 24-hour period is actually enforced; who, if anyone, has the authority to adjust that notice period; under what standards it may be adjusted; and what, if any, repercussions ensue when a defendant is not then available for receipt of notice or service of the sentence. In sum, we have no factual basis at all which would enable us to address defendant's bare assertion that the deferral constitutes a substantial deprivation ...