On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6065-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2009
Before Judges Wefing, Grall and Messano.
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*fn1 ).
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."*fn2
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 ...