June 8, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EMMITT WORTHY, III, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Municipal Appeal No. 08-042.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 25, 2011
Before Judges Fisher and Simonelli.
Defendant Emmitt Worthy appeals from the November 2, 2009 order dismissing his appeal of a municipal court conviction to the Law Division with prejudice. We affirm.
On September 9, 2006, defendant was charged with driving while intoxicated (DWI), N.J.S.A. 39:4-50; refusal to submit to chemical test, N.J.S.A. 39:4-50.4a; failure to maintain a lane, N.J.S.A. 39:4-88; driving with an expired license, N.J.S.A. 39:3-10; operating a motor vehicle with a controlled dangerous substance (CDS) in his possession or in the motor vehicle, N.J.S.A. 39:4-49.1; and possession of CDS, N.J.S.A. 2C:35-10a(1). He was convicted of all charges in the Dover Township Municipal Court, except to refusal under N.J.S.A. 39:4-50.4a. Defendant filed an appeal with the Law Division. Following a de novo review, Judge Ahto remanded the matter for a new trial.
Following a re-trial in the municipal court, on September 30, 2008, defendant was again convicted of all charges, except the refusal charge. The municipal court judge imposed the appropriate fines, assessments and fees and suspended defendant's driver's license for two years and ninety days. The matter was stayed pending appeal.
On October 8, 2008, defendant filed a pro se appeal with the Law Division. On April 14, 2009, the court sent defendant a scheduling order requiring him to appear for a hearing on June 5, 2009, and file a brief twenty-one days prior thereto. The notice warned defendant that "FAILURE TO SUBMIT BRIEFS IN A TIMELY MANNER WILL RESULT IN DISMISSAL . . . ." Defendant did not file a brief prior to the hearing despite obtaining an extension of the deadline to May 22, 2009. As a result, on June 1, 2009, the court dismissed his appeal without prejudice.
Still representing himself, defendant obtained permission to re-file his appeal, which he did on June 18, 2009. The court sent him another scheduling order on June 22, 2009, requiring him to appear for a hearing on August 7, 2009, and file a brief twenty-one days prior thereto. Again, the notice warned defendant that "FAILURE TO SUBMIT BRIEFS IN A TIMELY MANNER WILL RESULT IN DISMISSAL . . . ."
Defendant did not file a brief. Instead, he retained an attorney on July 22, 2009. The court subsequently granted several adjournments, and eventually re-scheduled the hearing for October 23, 2009. By that time, this appeal had been pending for over a year from the time defendant first filed his appeal.
Defendant and his attorney appeared on October 23, 2009. Counsel advised the court he had not filed a brief because he and defendant "cannot see eye to eye on a number of issues" and defendant no longer wanted counsel to represent him. Counsel also advised the court he had returned all documents to defendant about two weeks prior, and reimbursed the entire fee defendant had paid. Defendant advised the court he had consulted another attorney and was meeting with her the next day.
The judge relieved counsel and re-scheduled the matter for October 30, 2009. The judge ordered defendant to have the new attorney contact the court and fax a letter of representation by October 26, 2009, and to appear on October 30, 2009, with or without an attorney.
No attorney contacted the court, prompting the judge's law clerk to contact the attorney defendant said he had consulted. That attorney advised the court she had no intention of representing defendant, would not represent him in this case, and so advised defendant.
Defendant did not appear on October 30, 2009, nor did he contact the court thereafter or request an adjournment. As a result, the judge dismissed the appeal with prejudice for failure to prosecute and file a brief. The judge entered an order on November 2, 2009, confirming the dismissal and ordering defendant to surrender his driver's license by November 6, 2009.
Defendant filed a pro se motion for reconsideration, arguing the dismissal should be vacated because his first attorney failed to file a brief. He did not explain his failure to appear on October 30, 2009, or failure to communicate with the court thereafter. The judge denied the motion.
It is against these facts that defendant raises the following contentions:
I. THE INSTANT MATTER SHOULD BE REMANDED BACK TO THE LAW DIVISION FOR A TRIAL DE NOVO.
II. THE STATE FAILED TO CARRY ITS BURDEN IN ESTABLISHING THAT APPELLANT WAS OPERATING A MOTOR VEHICLE WHILE INTOXICATED.
III. THE STATE WAS ONLY ABLE TO ESTALISH THAT APPELLANT POSSESSED MARIJUANA BECAUSE OF AN ERROR ON THE PART OF THE MUNICIPAL COURT.
We decline defendant's request to exercise original jurisdiction pursuant to Rule 2:10-5 for the arguments raised in Points II and III. We will not exercise our original fact-finding jurisdiction where, such as here, the record is unclear and incomplete. Huster v. Huster, 64 N.J. Super. 29, (App. Div. 1960).
In Point I, defendant argues he was deprived of a de novo review in the Law Division because his first attorney failed to file a brief. We have considered this argument in light of the record and applicable legal principles and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following brief comments.
The dismissal in this case occurred as the result of defendant's conduct, not the conduct of his attorney. Prior to retaining his attorney, defendant received two notices requiring him to file a brief and warning him that his appeal would be dismissed if he failed to do so. Prior to retaining his attorney, defendant had also obtained an extension from the court, but still failed to file a brief, resulting in the dismissal of his appeal. He was permitted to re-file his appeal and given more time to perfect it. He then retained his attorney, who would have ostensibly filed a brief but for a disagreement with defendant over issues to be raised. As a result of that disagreement, defendant terminated the attorney, thus depriving counsel of the opportunity to file a brief. Defendant was ordered to return to court on October 30, 2009, with or without new counsel and failed to do so without explanation.
It is clear from the record that the court acted well within its discretion in dismissing the appeal with prejudice. The court afforded defendant numerous opportunities over a one-year period to perfect his appeal, and he failed to do so.
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