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State v. Levine

November 23, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BENJAMIN LEVINE, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 91-11-817.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 8, 2010

Before Judges Rodríguez and Grall.

A jury found defendant Benjamin Levine guilty of nine counts of criminal sexual contact. The judgment of conviction was entered on July 15, 1996. Defendant appealed, and following a temporary remand on the issue of ineffective assistance of counsel, this court affirmed and the Supreme Court denied certification. State v. Levine, No. A-463-96 (App. Div. Feb. 03), certif. denied, 165 N.J. 137 (2000).

On June 4, 2008, defendant filed a pro se notice of appeal from a "[f]inal [o]rder in this action on May 13, 2008 by way of [r]econsideration in favor of the State denying a [m]otion for Post Conviction Relief [(PCR)]." On the same day, defendant filed a motion for leave to appeal as within time and to proceed as an indigent. On August 15, 2008, we granted defendant leave to proceed as an indigent and noted that the notice of appeal was timely with respect to the May 13, 2008 order.

Defendant raises two issues on this appeal. Neither relates to the May 13, 2008 order. Both claim error in the initial denial of PCR:

I. THE DEFENDANT WAS DENIED THE FULL AND FAIR EVIDENTIARY HEARING THAT WAS INITIALLY GRANTED BY THE PCR COURT.

II. DEFENDANT'S ISSUES RAISED IN HIS PCR MOTION SHOULD BE CONSIDERED TO PREVENT A FUNDAMENTAL INJUSTICE AND BECAUSE THEY ARE OF CONSTITUTIONAL DIMENSION. [U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART. I, ¶ 10].

Although this court's August 15, 2008 order recognizes the timeliness of defendant's appeal from the denial of his motion for reconsideration, it does not grant defendant leave to appeal from the initial denial of PCR. To the contrary, our August 15 order questions our jurisdiction to address objections to the denial of PCR. It states: "The court does not comment on the scope of appeal as the motion for reconsideration related to a June, 2007 decision (and it is unknown if an order was entered thereon)."

Accordingly, we must consider whether this appeal was filed within time to permit us to consider challenges to the denial of the petition for PCR. We now know that a final order denying PCR was entered on July 13, 2007, and that this appeal was not filed until nearly eleven months after entry of that final order.*fn1

Rule 2:4-1(a) requires the filing of an appeal within forty-five days of the final order. Pursuant to Rule 2:4-3(c), the time for appeal is tolled by "the timely filing and service of a motion . . . for rehearing or to amend or make additional findings of fact pursuant to R. 1:7-4." A motion filed pursuant to Rule 1:7-4 is timely if it is filed within twenty days "after service of the order." R. 1:7-4(b).

Under the foregoing rules, our jurisdiction to adjudicate defendant's challenges to the July 13, 2007 final order depends on when the time for appeal was tolled. Thus, the date of the filing of defendant's motion for reconsideration is critical. Nonetheless, neither defendant nor the State has provided this court with a copy of the motion for reconsideration. The record includes nothing other than an April 25, 2008 letter from defendant to the trial judge referring to a motion for reconsideration filed on July 16, 2007.

We decline to exercise our jurisdiction based on a mere assumption that the motion for reconsideration was filed on July 16, 2007, but not resolved until May 13, 2008. In the first place, it seems unlikely. Secondly, having been alerted to the jurisdictional issue by this court's order of August 12, 2008, defendant should have addressed the issue and included the notice of motion in his appendix. Rule 2:6-1(a)(1). Accordingly, we dismiss the appeal without prejudice to a motion to reinstate supported by a brief addressing the ...


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