On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 10-043.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Ashrafi.
Once again we are called upon to rescue a litigant and his lawyer who were dilatory in pursuing their case in the trial court. Defendant Mark Houck appeals from a January 7, 2011 order of the Law Division denying his motion for reconsideration of a prior order dismissing his appeal from a municipal court conviction. Despite the trial court's careful consideration of the arguments raised and its detailed explanation of the reasons why it dismissed the appeal and denied reconsideration, we are constrained to reverse because defendant ultimately was prepared to go forward with the appeal. This quasi-criminal appeal should be decided on its merits if possible.
After four days of trial in the Municipal Court of Keyport spanning a time period from October 2008 through May 2010, defendant was convicted of disorderly conduct, N.J.S.A. 2C:33-2, and a fine, the amount of which is not revealed in our record, was imposed upon him. The municipal court stayed collection of the fine pending defendant's appeal to the Law Division under Rule 3:23.
Defendant filed a timely notice of appeal on June 8, 2010, and paid a $1,000 deposit for the transcripts of the municipal court proceedings. By invoice dated August 11, 2010, and addressed to the attorney for defendant, the court transcriber indicated that transcripts for the four trial dates had been prepared, she acknowledged the deposit paid, and she provided an accounting of the total charges and the balance due from defendant for the transcripts.
On August 13, 2010, the Law Division entered an order scheduling a trial de novo under Rule 3:23-8(a) on October 1, 2010, and requiring that defendant file a brief fourteen days before that date. On September 16, 2010, the attorney for defendant requested a forty-five-day extension to file a brief because he had not received the trial transcripts. The court adjourned the trial de novo to November 12, 2010.
On October 20, 2010, the Law Division issued an order dismissing the appeal without prejudice. The order stated that the court and the prosecutor's office had received copies of the trial transcript and that the court had advised defendant to obtain a copy from the prosecutor's office. The order also stated that a new deadline of October 8, 2010, had been set for defendant to file his brief but he still had not done so.
On November 12, 2010, defendant filed a motion for reconsideration of the dismissal order. Defense counsel stated in a certification that he had yet to receive the transcripts and that he had requested a copy from the prosecutor's office, but that office had declined to provide a copy to him.
The prosecutor's office filed a response, acknowledging that defense counsel had requested a copy and that it did not provide one. The prosecutor's reason, however, was that defendant still owed the transcriber a balance of $566.46.
Although the prosecutor's office objected to the implication that it was responsible for the delay in the appeal, the prosecutor did not oppose reinstatement of the appeal provided that defendant paid the amount owed to the court transcriber.
The court transcriber then wrote an undated letter to the court stating that "[a]s of this date" defendant still had not paid the balance due for the transcripts.
On December 16, 2010, one day before the return date for defendant's motion for reconsideration, defense counsel wrote to the court enclosing a copy of defendant's check in the amount of $549.85*fn1 for the transcripts and requesting a further adjournment of the motion because counsel's ...