August 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES R. SMITH, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 02-07-494.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 14, 2009
Before Judges Fisher and Gilroy.
In this appeal, we review an order entered by the trial judge on July 9, 2008, which denied without prejudice defendant's motion to compel the production of discovery, pleadings, transcripts, briefs, orders, opinions and other materials generated in this matter.
The record reveals that, following a trial, defendant was convicted of numerous offenses and sentenced to an aggregate prison term of 105 years, subject to 87.5 years of parole ineligibility. We affirmed the convictions, but remanded for a correction of the judgment regarding the period of parole ineligibility. State v. James R. Smith, No. A-1382-02T4 (App. Div. October 5, 2004). The Supreme Court denied defendant's petition for certification. 182 N.J. 429 (2005).
Defendant filed a petition for post-conviction relief, which he withdrew on April 24, 2006. In July 2008, defendant applied for copies of various portions of the record in this criminal matter. The judge*fn1 denied that motion, for reasons then given, as well as for the reasons set forth in his thorough supplemental opinion of October 1, 2008, which was filed after defendant filed this appeal.
In his appeal, defendant argues:
I. THE TRIAL COURT ERRED BY REFUSING TO PROVIDE AN INDIGENT DEFENDANT A FREE COPY OF THE COURT TRANSCRIPT IN ORDER TO SEEK A PROPER APPELLATE REVIEW [Partially Raised Below].
II. THE TRIAL COURT, BY DENYING THE DEFENDANT'S MOTION TO COMPEL THE STATE TO REPRODUCE HIS COURT DOCUMENTS WITHOUT COST TO DEFENDANT, VIOLATED THE DEFENDANT'S RIGHT OF MEANINGFUL ACCESS TO THE COURTS [Partially Raised Below].
In his supplemental opinion, the motion judge determined that defendant had once been provided with all the materials he now seeks. Defendant nevertheless claimed that his copies "were destroyed by the Prison Officials during several cell searches which resulted from several lockdowns," and seeks to be provided again with the same materials previously provided by the State. The judge determined that, although N.J.S.A. 2A:152-17 requires that a person convicted of a crime may apply for such materials when it is shown that "a copy of the transcript of the record, testimony and proceedings at the trial is necessary for the filing of any application with the trial court," it does not require that a second set be provided.
In addition, the judge determined from defendant's description of the application he intended to file -- regarding a change of custody from a drug or alcohol abuse rehabilitation facility to the Adult Diagnostic and Treatment Center -- that the records sought were not necessary for that purpose and that, in fact, such an application would have no merit. Moreover, the judge found determinative the fact that defendant had not requested additional copies of the record from either the Office of the Public Defender or his assigned counsel. The judge also cited other reasons for denying relief, which we need not explore in light of our disposition of the appeal.
In his appeal brief, defendant indicates that following the entry of the order under review, he made additional requests and began receiving portions of the record. These facts were not before the trial court; indeed, the motion judge found critical defendant's failure to seek reproduction of the record through other sources, such as his counsel in the earlier proceedings.
We agree with the motion judge's determination, in light of the fact that defendant had previously been provided with the materials in question at taxpayer expense, that defendant was not entitled to relief until at least such time as he exhausted other potential sources for the recovery of these materials. The fact that defendant has apparently obtained some of these materials since the motion judge ruled demonstrates not only the soundness of the judge's decision on that precise point but also that it would be inadvisable for this court to either monitor or examine what has occurred since the entry of the order in question, or examine the other reasons expressed by the motion judge in his supplemental opinion.
In short, it may be that defendant now has, or will soon receive, all that is necessary for the trial court application he has not yet filed -- a circumstance that would moot our consideration of any of the issues raised. Or, it may be that the materials not yet secured are so limited as to alter the State's opposition to the relief. In any event, it appears that circumstances have changed with regard to defendant's attempt to obtain the materials in question to such a degree that no purpose would be served by our intervention at this time.*fn2
Accordingly, we affirm the order under review for the limited reasons set forth herein. We recognize, as did the motion judge when he denied defendant's motion without prejudice, that the matter may again be revisited in the trial court.